dissenting:
With the conclusion of the majority, that the failure of the trial court to restrict the jury to a verdict of guilty of murder in the first degree, or not guilty, constitutes reversible error, I am unable to- agree.
*422It was the duty of the jurors to take the law from the court, and to that duty they were bound by oath.
Instruction No. 2 authorizes a verdict of guilty of murder in the first or second degree, or not guilty. No. 6 defines murder in the second degree. No. 7 points out the distinction between first and second degree murder. By instruction No. 24 the court submitted to the jury, for their consideration, three forms of verdict; one finding the defendant guilty of murder in the first degree; one finding the defendant guilty of murder in the second degree; and one finding the defendant not guilty. The effect of all the instructions given on this subject is to advise the jury that while defendant was, in fact, either guilty of murder in the first degree, or not guilty, it was still within its province, under the law, to return a verdict of guilty of murder in the second degree. To all such instructions the defendant objected on the ground that there was no evidence to support a verdict of guilty in the second degree, and that the effect of such instructions was to encourage jurors who had a reasonable doubt of defendant’s guilt to resolve that doubt against him by compromising upon a verdict of guilty of murder in the second degree.
It is contended now by the defense that the verdict of the jury and its recommendation for clemency demonstrate that the very prejudice which the defendant so feared, and repeatedly pointed out to the court, ■ in fact occurred. It is insisted that where, as here, all the evidence of guilt is of guilt in the first degree, and a jury sworn to return a verdict based solely upon the evidence would be, of necessity, obliged to find first degree or not guilty, and the defendant demands that the instructions be limited to murder in the first degree, a failure on the'part of the court to so limit is error; and that the facts in the present case clearly show that such error was prejudicial, and hence this verdict must be set aside. •
On the part of the people it is said that it is never error, under any circumstances, for the court to instruct upon both first and second degree murder; that no prejudice *423can arise to a defendant under such instructions, where all the evidence tends to show murder in the first degree, and that under the circumstances in the present case, and in similar cases, a verdict of guilty of murder in the second degree, especially when accompanied by such a recommendation to clemency as was here made, demonstrates not that the jurors had any reasonable doubt of the guilt of the defendant, but that, moved by sympathy and compassion for the stricken wife of the defendant, for his small children and his aged mother, if not for the defendant himself, they have simply tempered justice with mercy and returned a verdict in the lowest degree permissible under the law as given them by the court.
Under the - general rule that instructions should be limited to the evidence, and the repeated holdings of our own and other courts that where there is no evidence upon which a verdict in any other than first degree could be based no other grade “should”' be given, it seems proper to assume that it was error to instruct this jury on second degree murder, and address our inquiry to the question of prejudice.
It must be observed in the beginning that the position of the prosecution involves no assumption that the jurors violated their oaths to return a verdict “according to the law and the evidence,” because however they found the facts, the law, as given them by the court, permitted the finding of a verdict of guilty of murder in the second degree. Whereas the position of the defense involves the direct assumption that some of these jurors, moved by some improper motive, directly violated the solemn oath which they had taken, resolved reasonable doubts against the defendant, and deliberately compromised away his liberty. The theory actually followed by this jury can not, of course, be determined by any evidence before us. We must therefore have recourse to well established rules of law, if such there be, in the solution of the problem.
“It is a general rule of wide application that an Appellate Court will indulge all reasonable presumptions in favor *424of the correctness of the judgment, order, or decree from which the appeal was taken.” 4 Corpus Juris, P. 731, Sec. 2662.
That this rule is especially applicable to the verdicts of juries has been repeatedly decided, and such a holding is indispensable to the administration of justice.
It often happens that evidence is admitted for a particular purpose and so limited by the court. If it were not so restricted by the instructions, or if the jury disregarded those instructions and considered such evidence for other purposes, prejudicial error would result. Whether the jury in fact makes the proper application it is impossible to say. We therefore resort to the rule above stated and the presumption that jurors keep their oath and follow the instructions given.
“We must assume that the jury followed the instruction, and with that assumption no prejudice could possibly have resulted.” State v. Warner, 157 Ia. 111, 118, 137 N. W. 466.
It is presumed that a jury, instructed to disregard improper evidence which has been stricken out, followed that instruction. State v. Levich, 128 Ia. 372, 375, 104 N. W. 334.
“It is impossible for us’to say that the jury disregarded this- instruction. There is nothing in the bill of exceptions to show that they did. The presumption is, on the other hand, that they strictly observed it. We must infer that the jury, in the light of the evidence, obeyed the charge of the court.” H. & R. Co. v. Wilgus, 56 Fed. 587, 589, 6 C. C. A. 45.
“The presumption is that juries do their duty, * * * . The result could not have been otherwise than it was, unless the jury had totally disregarded not only the law, of which it was the duty of the court to apprise them, but would have acted in total disregard of the conceded facts as well. Such were within the range of possibilities, but it would be a violent presumption indeed so to assume in order to predicate the error essential to a new trial of the cause.” State v. Reed, 52 Ore. 377, 97 Pac. 627, 631.
*425So in the instant case it is within the range of possibility that some of the jurors had a reasonable doubt of the guilt of the defendant, and in violation of their oath compromised with their fellows on a verdict of guilty of murder in the second degree, “but it would be a violent presumption indeed so to assume in order to predicate the error essential to a. new trial of the cause.”
In People v. Holmes 118 Cal. 444, 50 Pac. 675, the jury returned a verdict reciting:
“We find a verdict of ‘guilty’ against all others named in the indictment, to-wit: (naming them), and find a verdict of ‘involuntary manslaughter’ ‘not a felony’ as charged and laid down by the court under the head of ‘involuntary 'manslaughter;’ and pray the extreme mercy of the court in its sentence and punishment.”
This verdict the court at first refused, to receive and directed the jury to correct it. The jury declined to make such correction. The verdict was thereupon received and recorded and was sustained by the Supreme Court of California, although that court expressly held that the words “not a felony,” if given effect, contradicted the words “guilty of involuntary manslaughter,” which offense was a felony.
“Juries, it is true, do sometimes find verdicts without any evidence, and the entire lack of evidence proves caprice; but, in the absence of a showing of caprice, courts should attribute to jurors fair intelligence and presume that they have acted on evidence and not without it.”
“Assuming this to be so (that the jury may have been misled by an erroneous ruling), nevertheless, an appellate court should not do the technical thing of setting aside a verdict obtained after a long and expensive trial, on the possibility that the jury might have done the unreasonable thing of basing their verdict on testimony which is so shadowy that this court considers it no evidence, and which received no more consideration from the trial judge than was implied in the mere fact of submitting it to a jury.” Betts v. Gahagan, 212 Fed. 120, 124, 125, 128 C. C. A. 636.
*426If this jury believed the defendant guilty of murder in the first degree, yet, prompted by mercy, returned him guilty in the second degree, it kept its oath, because the law, as given it by the court, permitted such a verdict. If it had a reasonable doubt as to his guilt in the first degree, and by reason thereof compromised on second degree, it violated its oath, because the law as given it by the court expressly made it its duty to give the defendant the benefit of that doubt and find him not guilty. To presume that it did this is to presume that it disregarded the instruction of the court to give the defendant the benefit of, every reasonable doubt. The proper application of the rule above stated precludes such an assumption.
Furthermore, the only question which the jury had to determine was, “Did defendant fire the fatal shot?” In' order to find him guilty in either the first or second degree they must have found, beyond a reasonable doubt, that he did. We must assume, if we can reasonably do so, that the jury followed the court’s instructions as to reasonable doubt. So assuming, it necessarily follows that the jury found, beyond a reasonable doubt, that the defendant did fire the fatal shot. If they so found, they must have found, beyond a reasonable doubt, that defendant had committed a crime which was, in fact, murder- in the first degree.
So reasoning, we must inevitably find that sympathy and mercy dictated, in this case, a verdict of guilty of murder in the second degree, where the verdict should have been guilty of murder in the first.degree, rather than find that a dereliction of duty and the violation of a juror’s oath dictated a verdict of guilty of murder in the second degree where the verdict should have been not guilty. If such be the fact, it follows that this defendant was benefited, not prejudiced, by the finding, and hence ought not be heard to complain.
It is said that “error is presumed to be prejudicial unless it affirmatively appears that it is not.” Even so, this is a mere artificial rule framed for the protection of the parties litigant. It is of no more force than any other similar rule. *427That error was not prejudicial may also be established as well by rule of law as by proof of facts, and the proper application of the rule hereinbefore set out — requiring the assumption that the jury followed the instructions of the court — makes it affirmatively appear that the error was not prejudicial.
Decided October 6, 1919. Rehearing denied January 5, 1920.I am of the opinion that the Colorado cases cited in support of the conclusion of the majority are not in point, and those cases cited from other jurisdictions which are applicable are based upon false reasoning.
I am authorized to say that Mr. Chief Justice Garrigues concurs in these views.