(dissenting). I concur in the opinion expressed by this court that the trial court erred in its instruction to the jury covering the effect of a verdict of conviction. I do not think it would have been erroneous for the court in an appropriate way to have, informed the jury that the defendant, if convicted, would be transferred from the Penitentiary to the Reform School unless the trial judge should otherwise order. But, if the jury is instructed at all on this point, the law must be correctly given, and it is not proper for the court to tell the jury, in advance of conviction, what the order of the count will be, for that might operate to the defendant’s prejudice. If the jury is told in advance that the court will make an order vetoing the transfer of the defendant from the Penitentiary to / the Reform School, that might be taken as an instruction lhat the defendant is considered a fitter subject for the Penitentiary than for the Reform School; and if, on the contrary, the jury is told that it is the intention of the court, in the event of a verdict of conviction, not to vote a transfer to the Reform School, that might induce infliction by the jury of a severer sentence than if it was thought that the defendant would be sentenced to the Penitentiary. Jurors are generally alert to catch the slightest intimation from the court as to its opinion .on the weight of the evidence or as to the effect which the evidence has made upon the mind of the trial judge, and he should exercise the utmost care and circumspection not to say anything to the jury which might be understood as an intimation of the court’s opinion upon the facts of the case.
I dissent, however, from the conclusion reached by the majority of the judges here that this case should be remanded for a new trial. The only prejudice which could possibly have resulted from the erroneous construction was to have augmented the punishment. I think all prejudice could be removed by reducing the punishment to the lowest term for the degree of homicide of which the defendant was found guilty by the jury; and I think this should be done, and the judgment affirmed.
It is the province and duty of this court only to eliminate error in the proceedings and to stop there. If the extent of the prejudicial effect of the error is apparent, so that it can be separated and eliminated from the judgment, it is the duty of the court to do so, and not to reverse that part of the judgment which is not affected by the error. This view has often been expressed by this court, and that practice has been adopted and followed in an unbroken line of decisions in criminal cases. Brown v. State, 34 Ark. 232; Simpson v. State, 56 Ark. 8; Routt v. State, 61 Ark. 594; Vance v. State, 70 Ark. 277; Darden v. State, 73 Ark. 315; Petty v. State, 76 Ark. 515; Howard v. State, 82 Ark. 97; Washington v. State, 83 Ark. 268.
In Simpson v. State, supra, Chief Justice Cockriee, speaking for the court, said: “The only error committed was in the excess of the punishment. In other States where statutes authorize courts to modify the judgment of the circuit courts in criminal cases, the remedy in a case like this is found, not in a new trial, but by reducing the punishment to make it appropriate to murder in the second degree. The court finds no constitutional obstacle to such a practice. * * * It is the established practice under our statute that a new trial shall not be awarded for an error not prejudicial to the prisoner.”
In Routt v. State, supra, Mr. Justice Riddick, in delivering . the opinion, said: “The fact that the defendant was found guilty of a greater crime than was warranted by the evidence does not compel us to set aside the entire conviction when it is in part clearly correct. It was to avoid such an unreasonable and costly procedure that the statute above referred to was enacted. The defendant in this case was sentenced to imprisonment for ten years, when the maximum punishment for larceny of money is imprisonment for five years. Under the statute and the authorities above cited, we will relieve the defendant from the excessive judgment, of which he has the right to complain, but affirm the conviction to the extent that it seems clearly right.”
I see no reason why this salutary rulé should not be followed in the present case. The defendant has been convicted of the crime of manslaughter upon evidence which this court finds sufficient, and upon instructions free from error, so far as the question of his guilt or innocence is concerned. In other words, this court finds the proceedings to be entirely free from error save as to the amount of the punishment. Then why should we not eliminate the error by reducing the punishment to the minimum prescribed by the statute, and affirm the judgment of conviction? Why should we remand the cause for new trial when the defendant has already had a fair trial on the question of his guilt or innocence, and has been convicted? I dissent from any such course.
Mr. Justice Wood concurs in the dissent.