[93]*93RICHARDSON, J.
Defendant appeals his conviction for burglary in the second degree, ORS 164.215.1 He was indicted on the burglary charge. At trial evidence of intoxication was presented tending to indicate that defendant did not have the requisite intent to commit burglary. The jury was instructed on burglary in the second degree and was also instructed as to the lesser included offense of criminal trespass in the second degree, ORS 164.245.2 Defendant assigns as error the trial court’s supplemental instruction to the jury to the effect that before it could consider the lesser included offense, it must reach a not guilty verdict on the burglary offense charged in the indictment.
The sequence of events concerning the supplemental instruction was as follows:
Approximately two hours after the jury began deliberations, it submitted a request for clarification of the instructions on criminal trespass and the defense of intoxication. The court reinstructed the jury on these items and it returned to deliberate for another hour. At that time it submitted the following question:
" 'The jury would like to know if we must vote two to ten against burglary No. 2 before we can vote on criminal trespass No. 2.’ ”
Defense counsel argued that the jury did not have to convict or acquit and that if it were deadlocked on the burglary charge, it would be entitled to consider [94]*94the lesser offense. The trial court expressed disagreement and proposed to instruct the jury that it had to reach a verdict on the indictment charge before it could consider the lesser charge. The court then directed the clerk to find out the number of jurors on each side of the burglary charge. The clerk returned with a count of five on one side and seven on the other. Thereupon the court reconvened the jury and instructed as follows:
"You have to start with the charge contained in the indictment, the burglary, and you consider the charge of criminal trespass in the second degree only if you should find the Defendant not guilty of the charge of burglary in the second degree.
* * * *
"Do you have another question that you want to write out?
"JUROR NO. 7: Yes.
"THE COURT: The question that has been submitted by Juror — by the juror in Seat No. 7 is: 'Does the verdict not guilty have to be determined by a vote of ten to two?’
"Any verdict in this case — well, at least ten of you must agree on any verdict.”
Defendant excepted to the instruction at issue here on appeal.
Approximately an hour later the court received a message from the jury that " '[t]hey’ve been nine to three for the last two hours and don’t see how they are ever going to agree.’ ” Over defendant’s objection, the trial court gave the modified "Allen charge” approved by the Supreme Court in State v. Marsh, 260 Or 416, 490 P2d 491 (1971), cert den 406 US 974 (1972). This instruction was given at about 5 p.m. Forty-five minutes later the jury came in with a 10 to 2 verdict of guilty on the burglary charge.
The import of the supplemental instruction was that before the jury could consider the lesser included offense, it had to reach a verdict with respect to the [95]*95burglary charge, and that if the jury was deadlocked as to the burglary charge, the court must order a mistrial. This raises two questions of first impression. First, was the giving of the supplemental instruction error? Second, if the instruction was error, was it likely to have had a coercive effect on the jury constituting reversible error? We answer both questions in the affirmative.
Courts in other jurisdictions have generally held, either directly or by implication, that it is error to instruct the jury that it must reach a verdict with respect to the offense charged before considering the lesser included offense. See People v. Hurst, 396 Mich 1, 238 NW2d 6 (1976); People v. Harmon, 54 Mich App 393, 221 NW2d 176 (1974); People v. Ray, 43 Mich App 45, 204 NW2d 38 (1972); People v. Clemente, 285 App Div 258, 136 NYS2d 202, 62 ALR2d 1009 (1954), aff’d 309 NY 890, 131 NE2d 294 (1956); Pinson v. The State, 94 Tex Crim 517, 251 SW 1092 (1923); Payne v. State, 199 Wis 615, 227 NW 258 (1929); Ballinger u. State, 437 P2d 305 (Wyo 1968).
The rationale of these decisions is expressed by the Michigan court in People v. Harmon, supra:
"The rationale of the Ray decision [.People v. Ray, supra\ is, however, somewhat broader than that suggested by the parties. Ray seeks to prevent those jurors opposed to a defendant’s conviction on a higher charge from being coerced into voting for conviction by an instruction requiring acquittal of that higher charge before lesser offenses can even be considered. For example, if the jury is considering the charge of assault with intent to commit rape, and juror A is opposed to conviction, he may be coerced into changing his vote to guilty by the prospect that the lesser included offenses of assault and battery and simple assault will not even be considered unless all the remaining 11 jurors agree to acquit the defendant of assault with intent to commit rape.” 54 Mich App at 395-96.
The state argues that ORS 136.460 and 136.465 require a different result from that reached in other jurisdictions.
[96]*96ORS 136.460 provides:
"Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.”
ORS 136.465 provides:
"In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the accusatory instrument or of an attempt to commit such crime.”
These statutes do not concern the route by which a jury arrives at its verdict, they merely set forth the rules to judge the legality of the verdict when compared against the charge in the accusatory instrument. These statutes form the basis of the court’s authority to present to the jury lesser degrees, lesser included offenses and attempts. See State v. Washington, 273 Or 829, 543 P2d 1058 (1975). Under these statutes if the jury arrives at a verdict of a lesser offense submitted in the court’s instructions, the verdict is proper despite the fact it was not specifically charged by the wording of the accusatory instrument.
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[93]*93RICHARDSON, J.
Defendant appeals his conviction for burglary in the second degree, ORS 164.215.1 He was indicted on the burglary charge. At trial evidence of intoxication was presented tending to indicate that defendant did not have the requisite intent to commit burglary. The jury was instructed on burglary in the second degree and was also instructed as to the lesser included offense of criminal trespass in the second degree, ORS 164.245.2 Defendant assigns as error the trial court’s supplemental instruction to the jury to the effect that before it could consider the lesser included offense, it must reach a not guilty verdict on the burglary offense charged in the indictment.
The sequence of events concerning the supplemental instruction was as follows:
Approximately two hours after the jury began deliberations, it submitted a request for clarification of the instructions on criminal trespass and the defense of intoxication. The court reinstructed the jury on these items and it returned to deliberate for another hour. At that time it submitted the following question:
" 'The jury would like to know if we must vote two to ten against burglary No. 2 before we can vote on criminal trespass No. 2.’ ”
Defense counsel argued that the jury did not have to convict or acquit and that if it were deadlocked on the burglary charge, it would be entitled to consider [94]*94the lesser offense. The trial court expressed disagreement and proposed to instruct the jury that it had to reach a verdict on the indictment charge before it could consider the lesser charge. The court then directed the clerk to find out the number of jurors on each side of the burglary charge. The clerk returned with a count of five on one side and seven on the other. Thereupon the court reconvened the jury and instructed as follows:
"You have to start with the charge contained in the indictment, the burglary, and you consider the charge of criminal trespass in the second degree only if you should find the Defendant not guilty of the charge of burglary in the second degree.
* * * *
"Do you have another question that you want to write out?
"JUROR NO. 7: Yes.
"THE COURT: The question that has been submitted by Juror — by the juror in Seat No. 7 is: 'Does the verdict not guilty have to be determined by a vote of ten to two?’
"Any verdict in this case — well, at least ten of you must agree on any verdict.”
Defendant excepted to the instruction at issue here on appeal.
Approximately an hour later the court received a message from the jury that " '[t]hey’ve been nine to three for the last two hours and don’t see how they are ever going to agree.’ ” Over defendant’s objection, the trial court gave the modified "Allen charge” approved by the Supreme Court in State v. Marsh, 260 Or 416, 490 P2d 491 (1971), cert den 406 US 974 (1972). This instruction was given at about 5 p.m. Forty-five minutes later the jury came in with a 10 to 2 verdict of guilty on the burglary charge.
The import of the supplemental instruction was that before the jury could consider the lesser included offense, it had to reach a verdict with respect to the [95]*95burglary charge, and that if the jury was deadlocked as to the burglary charge, the court must order a mistrial. This raises two questions of first impression. First, was the giving of the supplemental instruction error? Second, if the instruction was error, was it likely to have had a coercive effect on the jury constituting reversible error? We answer both questions in the affirmative.
Courts in other jurisdictions have generally held, either directly or by implication, that it is error to instruct the jury that it must reach a verdict with respect to the offense charged before considering the lesser included offense. See People v. Hurst, 396 Mich 1, 238 NW2d 6 (1976); People v. Harmon, 54 Mich App 393, 221 NW2d 176 (1974); People v. Ray, 43 Mich App 45, 204 NW2d 38 (1972); People v. Clemente, 285 App Div 258, 136 NYS2d 202, 62 ALR2d 1009 (1954), aff’d 309 NY 890, 131 NE2d 294 (1956); Pinson v. The State, 94 Tex Crim 517, 251 SW 1092 (1923); Payne v. State, 199 Wis 615, 227 NW 258 (1929); Ballinger u. State, 437 P2d 305 (Wyo 1968).
The rationale of these decisions is expressed by the Michigan court in People v. Harmon, supra:
"The rationale of the Ray decision [.People v. Ray, supra\ is, however, somewhat broader than that suggested by the parties. Ray seeks to prevent those jurors opposed to a defendant’s conviction on a higher charge from being coerced into voting for conviction by an instruction requiring acquittal of that higher charge before lesser offenses can even be considered. For example, if the jury is considering the charge of assault with intent to commit rape, and juror A is opposed to conviction, he may be coerced into changing his vote to guilty by the prospect that the lesser included offenses of assault and battery and simple assault will not even be considered unless all the remaining 11 jurors agree to acquit the defendant of assault with intent to commit rape.” 54 Mich App at 395-96.
The state argues that ORS 136.460 and 136.465 require a different result from that reached in other jurisdictions.
[96]*96ORS 136.460 provides:
"Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.”
ORS 136.465 provides:
"In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the accusatory instrument or of an attempt to commit such crime.”
These statutes do not concern the route by which a jury arrives at its verdict, they merely set forth the rules to judge the legality of the verdict when compared against the charge in the accusatory instrument. These statutes form the basis of the court’s authority to present to the jury lesser degrees, lesser included offenses and attempts. See State v. Washington, 273 Or 829, 543 P2d 1058 (1975). Under these statutes if the jury arrives at a verdict of a lesser offense submitted in the court’s instructions, the verdict is proper despite the fact it was not specifically charged by the wording of the accusatory instrument. These statutes do not require the jury to render a verdict on the offense charged before considering the other offenses submitted by the court.
The state also relies on State v. Steeves, 29 Or 85, 43 P 947 (1896). The express holding of that case is that for double jeopardy purposes "a conviction of a lower degree necessarily included within an indictment charging the commission of a greater crime, operates as an acquittal of all the degrees above it * * (Emphasis added.) 29 Or at 111. The rule does not require the jury to arrive at a verdict of acquittal on the greater charge; it merely sets forth a rule for interpreting a verdict of guilty on the lesser offense as it relates to the greater offense charged. When the jury renders a verdict of guilty on the lesser offense the defendant is deemed acquitted of the higher [97]*97charge without formal action on that charge by the jury.
The doctrine of lesser included offenses allows the jury some latitude in considering the offenses about which they have been instructed. The supplemental instruction given by the court invaded this province of the jury and was error. It effectively inhibited the right of the jury to consider the lesser offense of trespass.
Under the circumstances of this case we conclude the error was prejudicial and requires reversal. There was substantial evidence that defendant was intoxicated, thus negating his intent to commit burglary. The reasonable inference is that the jury was divided on this issue. Had the jury been properly instructed there is a reasonable possibility it would have embraced the lesser offense and arrived at a different verdict.
This opinion should not be read as foreclosing instructions that, in some measure, seek to control the method of jury deliberation. It is the province of the jury to decide questions of fact and to arrive at a verdict based on the law and the evidence. In arriving at a verdict the jury is to consider all the evidence and the law including all of the various offenses submitted by the court. Because of the confidential nature of jury deliberations, courts are not apprised of the methods juries use in deciding on a verdict. We recognize the reality of our jury system that juries often arrive at compromise verdicts, or acquit an obviously guilty defendant by a simple jury pardon. The deliberations may be orderly, chaotic or controlled by one or two jurors. As a practical matter there is little opportunity for the court to control or police jury deliberations other than by instructions on the law.
Recognition of the procedure by which juries sometimes arrive at their decision does not mean we must adopt a system of jury instructions which fosters it.. It [98]*98is proper for a court to bring some measure of order to jury deliberations by its instructions. A court may tell a jury it is to first consider the charge in the accusatory instrument and if it cannot agree on a verdict on that charge it should then consider the lesser included offenses submitted in the instructions. A jury of lay persons faced with an accusatory instrument charging an offense is not necessarily aware a verdict of guilty on other offenses would be proper. If the court simply submits the elements of a number of offenses the jury is left to proceed on an uncharted course. An instruction to the effect the jury must consider the principal charge first does not prevent consideration of all submitted offenses or set an agenda for the jury deliberations and does not invade the province of the jury-
As indicated, the court can rarely be aware whether the jury considered the greater charge before arriving at a verdict of guilty on the lesser offense. The court may poll the jury to determine if the verdict was agreed upon by the requisite number of jurors, but beyond that the deliberations remain confidential. The fact that there is no practical method of enforcing compliance with the instructions does not foreclose the duty to give them.
In summary we conclude it is proper for a court to instruct a jury they are first to consider the charge in the accusatory instrument and if they cannot agree upon a verdict in that charge they are to consider the lesser included offenses. The instruction given by the court was in error and the coercive potential of the instruction requires reversal.
Reversed and remanded for new trial.