This is an appeal from a judgment and an order refusing a new -trial. It appears that the jury were instructed and retired in the afternoon and the next morning returned into court and asked for instructions regarding the punishment in cases of the character of that on trial. The court prcir-ceeded to instruct the jury upon the question of punishment and then instructed them further, as-follows: “It is the duty of jurors to return a verdict. The court does not intimate to you in the slightest degree -what your verdict shall be. I have submitted four verdicts to you — one of assault with intent to kill; one of assault with intent to do bodily harm; one of assault and battery, and one of not guilty. It will be your duty to return one of those verdicts. I do not say what kind of verdict; that is for you. This thing of jurors sitting in a case and going out and can’t agree is not right. Every man has a right to his opinion, but he has the right to consider that he might be mistaken one way or the other, and I expect verdicts in this court, and I have been in the habit of getting verdicts. All I expect is a verdict.” This instruction was excepted to, “for the reason that the same amounted to coercion and amounted to telling the jury, or those who -had not agreed upon a verdict, that it was their duty to unite with the majority of the members of the jury in returning a verdict, and amounted to a coercion of the jury upon the part of the court.” It is owing, to the giving of this instruction that appellant seeks a reversal of the judgment and order.
[1] The instructions given upon the preceding day and the evidence received upon the trial are not before us, and we must presume that the evidence was sufficient to support the verdict reached. Certainly an appellate court should decline to reverse a cause for even a clear error, where, from the whole record, it is apparent that the jury could not fairly have reached a different verdict. Furthermore, without the evidence before us, we certainly should presume that the record was so clear as to warrant the trial court in making the statements it did if such statements could ever be warranted. State v. Kinney, 21 S. D. 390, 113 N. W. 77.
*303[2] We are unable to agree with appellant in his contention that the instructions amounted to coercion or to the advising of the jury that it was the duty of a minority to unite with the majority. We fail to see any element of threat. It is far different from a case where a court instructs a jury that it will be kept out until it agrees. At the very most, the court merely intimated that it believed the evidence of such a nature that the jury ought to be able to agree, and advised it that the judge expected a verdict. There was no intimation of what the verdict should be, in fact, the court expressly advised the jury that it “does not intimate to you in the slightest degree what your verdict 'shall be.” Is it not the duty of a jury to reach a verdict in- a clear case, and has not the court a right to expect a verdict in such a case? Undoubtedly this was such a case. Presumably the instructions in relation to punishment removed all differences that had arisen in the minds of the -several jurors. The following from the opinion in Odette v. State, 90 Wis. 258, 62 N. W. 1054, is directly applicable to the instruction complained of: “After the jury had been out for some time and failed to agree, they were brought into court and informed by the court, in effect, that they ought not to stand out in an unruly and obstinate way, but should reason together and talk over the existing differences, if any, and harmonize the same, if possible; that it was their duty to meet the testimony in a spirit of fairness and candor with each other, and not to stand back obstinately, but to reason together and apply the law as given by the courts to the facts in the case, and arrive at some kind of a verdict; that if they wanted no enlightment upon the law in the case, then they might return to their room and continue to deliberate upon the issues until they had arrived at a verdict. We do not •think this can be fairly construed as a threat that the jury would not be discharged until they had agreed. It was merely expressing the usual expectation that they would agree. It was for that purpose that the jury returned to their room. The mere failure of the court to discharge the jury when they thus came in, or telling them that" it was their duty to use every reasonable effort to come to an agreement, as indicated, was not error.” In Moore v. Platteville, 78 Wis. 644, 47 N. W. 1055, the same court sustained an instruction containing the following: “The court expected them, when they again returned to the courtroom, to have *304agreed upon a verdict.” See also, Johnson v. State, 60 Ark. 45, 28 S. W. 792; People v. Stock, 1 Idaho, 218; German Sav. Bk. v. Citizens’ Nat. Bk., 101 Iowa, 530, 70 N. W. 769, 63 Am. St. Rep. 399.
The judgment and order appealed from are sustained.