McFADDEN, Justice.
On June 24, 1978, defendant James Lee Silcox attempted to place certain individuals under citizen’s arrest. One of the individuals Silcox attempted to place under arrest, Leroy Burger, refused to acknowledge the arrest and fled the scene of the arrest. In the course of firing shots in the direction of Burger, Silcox shot Burger in the back. Silcox was subsequently charged with the offense of assault with a deadly weapon. I.C. § 18-906.
The matter was set for trial on February 8, 1979. The defendant filed a motion for an order staying the proceedings and an order dismissing the information on the grounds that there had been a substantial failure to comply with the Uniform Jury Selection and Service Act (I.C. § 2-201 et seq.) in selecting the jury for the scheduled trial. On February 7,1979, the motion was brought on for hearing before the district court. The court found that the evidence presented established that the jury panel had not been selected in accordance with the Uniform Jury Selection and Service Act. Nonetheless, the court ruled that the defects could be cured without substantial prejudice to the defendant if the matter were stayed until April 2, 1979.
The matter was set for trial on that date. Three days prior to trial, the defendant’s counsel filed another motion to stay the proceedings and to dismiss the information, alleging again a substantial failure to com[484]*484ply with the Uniform Jury Selection and Service Act. One of the bases of the allegation was the fact that one of the members of the Jury Commission, Dan O. Turnipseed, was absent during the compilation of the master list, master jury wheel and qualified jury wheel. On April 2, 1979, at the outset of the trial, the district court denied the defendant’s motion. The trial lasted for two days.
On April 3, at 8:40 p.m., the jury began its deliberations. After several hours of deliberation, the jury returned to the courtroom in the early morning hours (3:46 a.m.) of April 4, 1979, announcing that the members of the jury were unable to agree on a verdict. At that time, the district court judge, after consultation with defense counsel and the prosecution, provided further instruction to the jury.
“Well, I realize, ladies and gentlemen, that the hour is very late and that you have been deliberating about 7 hours; however, because of the tremendous expense of retrying the case and the fact that I just don’t see how another jury would have any different evidence, any different law, any different arguments, or how the case could be presented any differently to them, and because of the time and effort that’s been invested so far, I feel I must ask you to return and keep trying, and hopefully you will be able to reach a verdict. If you cannot, why, then, you can notify the bailiff and we will discharge you.
So, with that, I would ask you to return to the jury room and try, try some more.”
No objection was made to the instruction. After approximately two and one-half hours of further deliberation, at 6:24 a.m., the jury returned a verdict finding the defendant guilty of the lesser included offense of injuring another by discharge of aimed firearm. I.C. § 18-3306. From the entry of judgment of conviction, the defendant perfected the instant appeal.
Three issues are presented on appeal: (1) did the lack of participation by both members of the jury commission in the preparation and compilation of the master list, master jury wheel and qualified jury wheel constitute a failure to substantially comply with the Uniform Jury Selection and Service Act; (2) did the oral instruction given to the jury after it announced it was deadlocked have a coercive effect on their subsequent deliberations; and (3) did the district court utilize improper procedures in giving the oral instruction.
Jury Selection Process
At the time of the compilation of the master list, master jury wheel and qualified jury wheel, from which the jury was selected in the instant case, the Boise County Jury Commission consisted of the Boise County Clerk, Robert J. Tuffield, and the Boise County Jury Commissioner, Dan O. Turnipseed. It was the statutory obligation of the Jury Commission, acting as a body, to compile and maintain a master list, a master jury wheel and a qualified jury wheel. I.C. §§ 2-206, 207, 208 and 210. The record, however, establishes that one of the members of the Boise County Jury Commission, Mr. Turnipseed, did not physically participate in this process. The appellant submits that this lack of personal participation in the jury selection process by one of the members of the jury commission constitutes a failure to substantially comply with the Uniform Jury Selection and Service Act.
The policy of the Act is stated in I.C. § 2-202 as follows:
“It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity, in accordance with this act to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.”
The appellant has made no argument, nor does the record indicate, that the lack of participation by one member of the jury commission in the preparation and compilation of the jury lists affected the random nature or objectivity of the selection process.
[485]*485In this regard the instant case is nearly identical to the case of State v. Walters, 61 Idaho 341, 102 P.2d 284 (1940). The defendant in Walters challenged the jury selection process upon the basis that the county commissioners had not acted as a board in compiling a jury list as required under the existing statute. The court initially observed that the preparation of jury lists should be by the board, acting as a body, rather than by the individual members of the board acting independently. 61 Idaho at 348, 102 P.2d at 287. The court, however, affirmed the district court’s denial of the defendant’s motion to quash the jury panel, on the ground that the defendant had not sufficiently established any prejudice arising from non-compliance with the existing statute governing jury selection. Id Specifically, it was stated:
“On a motion to quash a jury panel the burden of showing substantial actual or presumptive prejudice to the rights of defendant rests on the moving party and must be established by a preponderance of the proofs. (Morris v. State, 62 Okl.Cr. 337, 71 P.2d 514, 517; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074.) We feel that appellant has failed to sustain the burden of proof cast upon him, and that his motion to quash was properly denied.” 61 Idaho at 347, 102 P.2d at 286.
As in the Walters case, we are of the view that even though it might have been preferable that there had been the actual participation of both members of the jury commission, the compilation of the jury lists by the one member unaided by the other member, was nonetheless valid since the defendant did not establish nor even argue that any prejudice resulted therefrom.
Coercive Effect of Oral Instruction
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McFADDEN, Justice.
On June 24, 1978, defendant James Lee Silcox attempted to place certain individuals under citizen’s arrest. One of the individuals Silcox attempted to place under arrest, Leroy Burger, refused to acknowledge the arrest and fled the scene of the arrest. In the course of firing shots in the direction of Burger, Silcox shot Burger in the back. Silcox was subsequently charged with the offense of assault with a deadly weapon. I.C. § 18-906.
The matter was set for trial on February 8, 1979. The defendant filed a motion for an order staying the proceedings and an order dismissing the information on the grounds that there had been a substantial failure to comply with the Uniform Jury Selection and Service Act (I.C. § 2-201 et seq.) in selecting the jury for the scheduled trial. On February 7,1979, the motion was brought on for hearing before the district court. The court found that the evidence presented established that the jury panel had not been selected in accordance with the Uniform Jury Selection and Service Act. Nonetheless, the court ruled that the defects could be cured without substantial prejudice to the defendant if the matter were stayed until April 2, 1979.
The matter was set for trial on that date. Three days prior to trial, the defendant’s counsel filed another motion to stay the proceedings and to dismiss the information, alleging again a substantial failure to com[484]*484ply with the Uniform Jury Selection and Service Act. One of the bases of the allegation was the fact that one of the members of the Jury Commission, Dan O. Turnipseed, was absent during the compilation of the master list, master jury wheel and qualified jury wheel. On April 2, 1979, at the outset of the trial, the district court denied the defendant’s motion. The trial lasted for two days.
On April 3, at 8:40 p.m., the jury began its deliberations. After several hours of deliberation, the jury returned to the courtroom in the early morning hours (3:46 a.m.) of April 4, 1979, announcing that the members of the jury were unable to agree on a verdict. At that time, the district court judge, after consultation with defense counsel and the prosecution, provided further instruction to the jury.
“Well, I realize, ladies and gentlemen, that the hour is very late and that you have been deliberating about 7 hours; however, because of the tremendous expense of retrying the case and the fact that I just don’t see how another jury would have any different evidence, any different law, any different arguments, or how the case could be presented any differently to them, and because of the time and effort that’s been invested so far, I feel I must ask you to return and keep trying, and hopefully you will be able to reach a verdict. If you cannot, why, then, you can notify the bailiff and we will discharge you.
So, with that, I would ask you to return to the jury room and try, try some more.”
No objection was made to the instruction. After approximately two and one-half hours of further deliberation, at 6:24 a.m., the jury returned a verdict finding the defendant guilty of the lesser included offense of injuring another by discharge of aimed firearm. I.C. § 18-3306. From the entry of judgment of conviction, the defendant perfected the instant appeal.
Three issues are presented on appeal: (1) did the lack of participation by both members of the jury commission in the preparation and compilation of the master list, master jury wheel and qualified jury wheel constitute a failure to substantially comply with the Uniform Jury Selection and Service Act; (2) did the oral instruction given to the jury after it announced it was deadlocked have a coercive effect on their subsequent deliberations; and (3) did the district court utilize improper procedures in giving the oral instruction.
Jury Selection Process
At the time of the compilation of the master list, master jury wheel and qualified jury wheel, from which the jury was selected in the instant case, the Boise County Jury Commission consisted of the Boise County Clerk, Robert J. Tuffield, and the Boise County Jury Commissioner, Dan O. Turnipseed. It was the statutory obligation of the Jury Commission, acting as a body, to compile and maintain a master list, a master jury wheel and a qualified jury wheel. I.C. §§ 2-206, 207, 208 and 210. The record, however, establishes that one of the members of the Boise County Jury Commission, Mr. Turnipseed, did not physically participate in this process. The appellant submits that this lack of personal participation in the jury selection process by one of the members of the jury commission constitutes a failure to substantially comply with the Uniform Jury Selection and Service Act.
The policy of the Act is stated in I.C. § 2-202 as follows:
“It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity, in accordance with this act to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.”
The appellant has made no argument, nor does the record indicate, that the lack of participation by one member of the jury commission in the preparation and compilation of the jury lists affected the random nature or objectivity of the selection process.
[485]*485In this regard the instant case is nearly identical to the case of State v. Walters, 61 Idaho 341, 102 P.2d 284 (1940). The defendant in Walters challenged the jury selection process upon the basis that the county commissioners had not acted as a board in compiling a jury list as required under the existing statute. The court initially observed that the preparation of jury lists should be by the board, acting as a body, rather than by the individual members of the board acting independently. 61 Idaho at 348, 102 P.2d at 287. The court, however, affirmed the district court’s denial of the defendant’s motion to quash the jury panel, on the ground that the defendant had not sufficiently established any prejudice arising from non-compliance with the existing statute governing jury selection. Id Specifically, it was stated:
“On a motion to quash a jury panel the burden of showing substantial actual or presumptive prejudice to the rights of defendant rests on the moving party and must be established by a preponderance of the proofs. (Morris v. State, 62 Okl.Cr. 337, 71 P.2d 514, 517; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074.) We feel that appellant has failed to sustain the burden of proof cast upon him, and that his motion to quash was properly denied.” 61 Idaho at 347, 102 P.2d at 286.
As in the Walters case, we are of the view that even though it might have been preferable that there had been the actual participation of both members of the jury commission, the compilation of the jury lists by the one member unaided by the other member, was nonetheless valid since the defendant did not establish nor even argue that any prejudice resulted therefrom.
Coercive Effect of Oral Instruction
Turning next to the issue of the propriety of the oral instruction given to the jury after it announced it was deadlocked, while this instruction should not be considered as a model as to either form or procedure we are of the opinion that the instruction did not have a coercive effect on the jury’s subsequent deliberations and does not require reversal.
Examining the circumstances surrounding the district court’s decision to give the instruction and the wording of the instruction itself, the following factors attest that the instruction was proper and not coercive in effect: (1) before the instruction was given the jury had been deliberating for approximately seven hours; (2) the court, by way of its instruction, asked the jury to “keep trying, and hopefully you will be able to reach a verdict;” and (3) the court concluded the instruction with the statement to the jury that if they could not reach a verdict “we will discharge you.” The instruction in no wise can be characterized as an admonition to the jurors in the minority that they should reconsider the reasonableness of their convictions when not concurred in by the majority.
As to this later point, it is to be noted that Idaho has adopted a variation of the “Allen” or “dynamite” instruction. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); State v. Bailey, 94 Idaho 285, 486 P.2d 998 (1971); Idaho Trial Judge’s Manual, § 7.63; Idaho Jury Instructions, no. 131. The instant instruction being somewhat akin to an “Allen” or “dynamite” instruction, it is to be noted further that several courts have held that it is permissible for a trial judge to impress upon jurors, after they have been allowed to deliberate for a reasonable time, the importance of reaching a verdict, to point to the expense and time it has taken to try the case, and to note that the case may have to be decided by some jury and in all probability on the same pleadings and evidence. See, e.g., Hodges v. United States, 408 F.2d 543 (8th Cir. 1969); Plumley v. State, 4 Md.App. 671, 245 A.2d 111 (1968).
Procedure Used in Giving Instruction
I.C.R. provides in pertinent part:
“The court shall inform counsel of its proposed actions upon the requested instructions and shall allow counsel a reasonable time within which to examine and make objections outside the presence of the jury to such instructions or the failure to give requested instructions. [486]*486The court shall read the instructions to the jury prior to final argument; but if all parties consent, it may read part or all of the instructions after final argument.”
In addressing the issue of non-compliance with this rule by a trial court, this court has placed responsibility upon counsel to object “while there is still the opportunity to cure the defect.” State v. Watson, 99 Idaho 694, 701, 587 P.2d 835, 842 (1978). The appellant submits there was no opportunity in the instant case to cure the alleged defect in the instruction, i.e., the instruction was not reduced to written form and the district court did not provide counsel an opportunity to object to the instruction on the record.
Although neither the clerk’s record nor the transcript disclose what transpired prior to the giving of the challenged instruction, the affidavit of the Boise County Prosecuting Attorney augmented to the record in this case indicates that the appellant has not preserved any alleged error on this issue. The affidavit states that counsel for appellant was not only informed of the district court’s intention to give some form of instruction to the jury, but was also informed by the court what the substance of the instruction would be and reminded by the court of his right to object. Accordingly, the alleged error, if any there was, is deemed to be waived. State v. Watson, supra.
Judgment of conviction affirmed.
BAKES, C.J., and DONALDSON and SHEPARD, JJ., concur.