JJ., dissenting:
We do not concur in the conclusion reached in the foregoing opinion. The argument that the jury would understand from the fact that one form of verdict was marked “give” on its margin by the judge that he was instructing them thereby to find the plaintiff in error guilty seems without force. Under sections 72 and 73 of the Practice act the court can only instruct the jury as to the law of the case, and such instructions must be in writing. Under section 77 of said act it is sufficient for the jury to pronounce its verdict in open court without reducing it to writing. It may be reduced to writing and signed by the jury or it may be delivered orally. This court, after reviewing the authorities, held in Illinois Central Railroad Co. v. Wheeler, 149 Ill. 525, that it was usual and proper for the court to indicate to the juiy, before retiring, in what language the verdict should be announced, and that this might be done in the same way that any other directions are given to the jury as to the manner of proceeding in the discharge of their duty; that such direction was in no sense the giving of an instruction as to the law of the case; that usually the purpose of such direction would be best served by reducing it to writing. (Pioneer Construction Co. v. Sunderland, 188 Ill. 341; Conness v. Indiana, Illinois and Iowa Railroad Co. 193 id. 464.) The court, however, cannot, in giving the forms, of verdict, instruct orally as to the law. (Bilis v. People, 159 Ill. 337; Helm v. People, 186 id. 153.) It necessarily follows from these authorities that the court can give written forms of verdict, but the written forms so given should contain no instruction as to the law of the case. These forms of verdict are not, as that word is used in the statutes, “instructions.”
Section 74 of the Practice act provides that when instructions are asked which the judge cannot give, he is to write on the margin the word “refused” and as to those he approves the word “given.” This court has repeatedly and consistently held that failure to mark an instruction “given,” if the record showed that it was, in fact, given, was not such an error as to require a reversal of the judgment. (Tobin v. People, 101 Ill. 121; McDonald v. Fairbanks, Morse & Co. 161 id. 124; Hart v. Wabash Southern Railway Co. 238 id. 336.) Manifestly, if both forms of verdict had been marked “give” or “given” there could be no argument that the jury were misled. On the reasoning of the cases just cited, the failure to mark one of the forms of verdict “give” should not require a reversal of the judgment, as both forms were, in fact, given to the jury. Twelve instructions were given for the People and twenty-four for the plaintiff in error, all marked “give.” They covered practically all phases of the law as applied to the facts in the case. Could a juror with sufficient intelligence to serve on a jury be led to believe that the court, by such an indirect method as marking the form of the verdict “give,” intended to instruct the jury to find the plaintiff in error guilty and to ignore all the other instructions in the case? The courts, in passing upon questions of this kind, should credit jurors with some judgment and common sense, otherwise jury trials are valueless. It does not seem within the range of possibility that the jury were misled to the prejudice' of plaintiff in error by the marking of this form of verdict “give.”
The judgment of the criminal court, in our opinion, should be affirmed.