(dissenting). The defendant -was prosecuted under § 8678, Revised Codes 1905, the text of which is as follows: “Every person who, being confined in the penitentiary or other prison, or being in the lawful custody of an officer or other person, by force or fraud escapes from such prison or custody, is guilty of a felony,” etc. Upon the trial the only evidence introduced in any manner bearing upon the means by which the escape was effected is that of the warden of the state penitentiary and of the defendant himself. The warden testified: “I saw the defendant, after the noon hour, go out from the penitentiary in charge of a guard by the name of Chas. Warner. He was sent out to work in the hay field. The rules of the penitentiary are-that the men working in the field are to start to return to *222the penitentiary at half-past 5. The defendant did not return that day till between 1 and 2 o’clock the next morning. When he did return he was in charge of the officers of the penitentiary. He askpd me not to be too hard on him in punishment. He said he was left behind by officer Warner, to rake up a little hay they had just cut, and he was to follow right in; it would only take a few minutes; and that his desire for liberty got the best of his judgment, and he ran away and was sorry for it.” The guard, Warner, did not testify, and the defendant stated: “Wé were at work in the hay field under a guard by the name of Warner. We started to return to the penitentiary in the evening, but the guard sent us back to rake up some hay. When the guard told us to go back we told him that we would probably ‘go over the hill,’ meaning we would go away; and he said if -we could get away without taking the horses, we were welcome to try it. By we, I mean me and John Wade. We didn’t take the horses, we just walked off.” • •
At the close of the testimony of the State, the defendant moved the court “to advise the jury to return a verdict of not guilty in this case, for the reason that the State has wholly failed to show that any crime has been committed; has entirely failed to make out a case against this defendant.” This motion was denied by the court, an exception taken, and the ruling assigned as error in the statement of the case'and upon the brief of defendant’s counsel. A motion for a new trial was afterward made upon the ground, among others, “that the verdict of the jury is contrary to law and clearly against the evidence.” The motion for a new trial was denied by the court, and its ruling in this particular is also in the same manner assigned as error.
While under rule 14 “such errors as are merely assigned and not supported in the body of the brief by reasons or authoritiees will be deemed to have been abandoned,” I do not think such rule should apply to a criminal case, in which the defendant cannot be presumed to have waived any substantial right, and in which he urges upon the attention of this court, as in this case, that the evidence introduced by the State is insufficient to support a conviction of the offense charged. A simple examination of the evidence, without argument or citation of authority, is all that is necessary to satisfy an impartial mind that there is not even slight evidence of an essential element of the public *223offense charged. While it is undisputed that the defendant escaped from the penitentiary in the sense that for a time he placed himself beyond the custody of its officers, it is equally apparent that he did not effect his escape by force or fraud, but simply “walked off” when,, through negligence or incompetence of the guard, he was left wholly unguarded. The gist of the offense as expressed by the statute is that the defendant should free himself from the restraint imposed by the prison walls or of the persons holding him in custody “by force or fraud.” The conviction can be sustained only by disregarding defendant’s attempt to bring the merits of his contention before us. To hold that he may be convicted under this statute upon proof merely of the fact that he passed out of the penitentiary or from the custody of a guard, without any showing whatever that such escape was effected by force or fraud, is of course nothing better than judicial legislation of the most objectionable kind. On the other hand, to hold that the evidence quoted above, which includes all that was introduced on this point by the State, shows an escape effected by force or fraud, requires a stretch of the imagination of which I confess I am incapable.
In my opinion the point of the insufficiency of this evidence to support a verdict was brought to the attention of the trial court by the motion made at the close of the State’s case and by defendant’s motion for a new trial, and cannot be disregarded on appeal. I cannot agree with that portion of the majority opinion which holds that error cannot be predicated upon the refusal of a trial court in a criminal case to advise a jury to render a verdict of not guilty.
It is true that the court is not authorized to direct the jury to find in the defendant’s favor as in civil cases, or to compel the jury to so find if it refuses to follow the court’s advice. It is, however, none the less the duty of the court to so advise the jury if at the close of the testimony for the prosecution it appears that the evidence introduced by the State does not show, prima facie at least, the essential-elements of a public offense. The California cases cited in the majority opinion not only do not sustain the holding that an exception cannot be predicated upon the refusal of a court to advise' a verdict of not guilty when the evidence is insufficient to warrant a conviction, but expressly disclaim such holding. In the case of People v. Lewis, 124 Cal. 551, 45 L.R.A. 783, 57 Pac. 470, it is plainly indicated *224that, in the opinion of the court, a review upon appeal of the refusal of a trial court to advise a verdict of not guilty may properly “go to the extent of determining whether there was an absence of any substantial evidence as to. some fact that the prosecution was bound to prove.” In the subsequent case of People v. Ward, 145 Cal. 736, 79 Pac. 449, it was held in express terms that when the court at the close of the State’s evidence is requested to “instruct” the jury to return a verdict of not guilty, it is not justified in denying the motion because it can only advise an acquittal. To so hold, as the court states, “is to sacrifice substantial justice to mere form.” The court then finds that the true rule that had never heen expressly disapproved in California was announced in People v. Jones, 31 Cal. 571, to the effect that in a case where the corpus delicti was not proven, the court should instruct the jury to return a verdict of not guilty. After-wards, as the opinion states, “in People v. Lewis, 124 Cal. 553, 45 L.RA. 783, 57 Pac. 470, Justice Temple, in a ease of conflicting evidence, and where the evidence was amply sufficient to sustain the conviction, expressed the opinion that the refusal of the judge to advise an acquittal was not the subject of an exception; but that statement was not necessary to his conclusion, and was not the ground of decision. We approve the doctrine of People v. Jones, 31 Cal. 571, that when there is a clear failure of proof upon a material allegation of the charge, the defendant has a right to demand an instruction to the jury that there has been such failure of proof, and the fact that he moves for an instruction to acquit d<pes not relieve the court of the duty of doing what the court in such case may do, i. e., advise an acquittal.” The holding of this case, which has not been overruled in any subsequent opinion, and which is the settled practice of California to-day, is peculiarly applicable to the case at bar. Our statute making it the duty of a district court to advise an acquittal in cases in which the evidence will not warrant a conviction is taken verbatim from the California Penal Code. The ruling in People v. Jones, above referred to, was made in 1867 at a time prior to that at which this statute was incorporated into our Code. Consequently, the prior holdings of the supreme court of California have a binding force that cannot he disregarded unless we can deliberately say that they violate sound prin*225ciple; and certainly not because they seem to be at variance witb cases in other states having statutes on the subject materially different.
In a criminal case in which, as in this, the evidence is so plainly insufficient to show the necessary elements of a public offense, and the point is presented as it is in accordance with the rules of a well-settled practice, I think there should be no hesitation in reversing the judgment of conviction even though appellant’s counsel may not, in some technical particulars, have complied with the letter of the rules of this court.
Spalding, J. I concur with the opinion of Judge Ellsworth.