ON PETITION FOR A REHEARING.
Osborn, C. J.The counsel for the appellant "raise the question of the power of the court to grant to the State a rehearing in this case. They say that the judgment of the court below having been reversed, and the warden of the State’s prison having delivered her to the sheriff of the county under the order of this court in the judgment of reversal, we cannot by granting a rehearing remand her back to the state prison; that if we grant a rehearing and vacate our judgment reversing the judgment against her, the sheriff of Boone county, having once executed the judgment of the circuit court, by delivering her to the warden of the state prison, can have no power to take her there the second time on the same judgment after she has been delivered to him by the warden under a valid order of this court.
The counsel for the State ask that if we shall overrule the petition for a rehearing, for any cause, we will modify: and change the opinion heretofore delivered, and that we will also express an opinion upon the effect of granting a new trial in the case, and decide, whether she must take it as to the whole case, or only as to the verdict of guilty of *440murder in the second degree, leaving the verdict of not guilty of murder in the first degree to stand.
We all concur in the conclusion that the judgment of the court below was properly reversed, and that the petition for a rehearing ought to be overruled. Hence, we need not consider the question of power. We also concur in the opinion that we ought not to consider the question as to the effect of granting to the appellant a new trial, because the question is not before us. That must be decided by the court below, before it. can be properly passed upon by this court. If we were to express an opinion upon it, the circuit court would not be bound by such opinion. We think it the safer and better practice for this court to avoid deciding questions not presented by the record. A majority of the court adhere to their rulings, and decline to materially modify the opinion.
I do not concur in the conclusion of the majority, that the opinion ought not to be materially modified. Since that opinion was delivered, and since the petition for a rehearing was filed, we have had the benefit of a full argument on the plea of former acquittal, as well as the other questions involved in the petition, and I can no longer concur or acquiesce in that part • of the opinion which holds that the averments of identity of the two crimes are sufficient to show that the two homicides were caused by the same act. I do not consider it necessary to discuss the question at this time. I think no useful purpose would be accomplished by doing so. I only wish to state that I do not think the answer in that particular sufficiently certain, and in my opinion the demurrer to it was correctly sustained.
A majority of the court holding the answer good, we have concluded to add something to the former opinion on the question of the proper practice in such cases; and, also, as to a part of the instructions given to the jury.
Mr. JBishop, in- his work on Criminal Procedure, vol. i, p. 308, sec. 436, says, if two or more pleas involving issues to the jury are tendered together, they are not all necessa*441rily to be tried at once; and refers to the Commonwealth v. Merrill, 8 Allen, 545, in which Metcalf, Judge, says : “The two issues of former conviction or former acquittal, and not guilty, are distinct, and both cannot rightly be submitted to a jury at the same time.”
In The King v. Captain Roche, Leach, 160, he pleaded former acquittal. The prosecutor moved that the jury might be charged at once with the issue, and that of not guilty. The court said: “ Charging them with both issues at once would lead to this absurdity, that being charged with both, they would be obliged to find upon both; and yet if the first finding was for the prisoner, they could not go to the second, because that finding would be a bar. They are distinct issues, and the jury must be separately charged with them.”
Mr. Bishop, onp. 418, sec. 578, ofthe same volume referred to, says: “ There are, indeed, some instances to be found in the reports, in which, by a sort of loose practice, the two issues have been submitted together; but, where this was done, and the jury returned a verdict of guilty without passing on the other issue, a judgment rendered on the verdict was held to be erroneousand refers to Solliday v. The Commonwealth, 28 Penn. St. 13. In that case, the loose practice referred to by Mr. Bishop had been adopted by the court, and both issues of former conviction on a spe'cial plea and not guilty were submitted to the jury at the same time. The jury returned a verdict of not guilty. The lower court refused to arrest the judgment and passed sentence upon the prisoner. The Supreme Court held that a former conviction could always be pleaded, and if its. truth was established, it would be a plain bar to another judgment against the accused. If an issue of fact was formed upon the plea, it must go to a jury, and no judgment could be given in the case, until that case could be disposed of. No matter how clear the court may be against the defendant, nobody but the jury can decide an issue like that. If the jury should determine and find that the former indictment wTas for a different offence, and omit to find whether he was *442guilty or not, he could not be sentenced, because he could not be punished without ascertaining his guilt. And for the same reason, he could not be sentenced without a verdict which would determine that he had not already been convicted for the same offence. On p. 15, the court says : "The jury have declared the defendant guilty, but that does not render the fact of his former conviction a whit more improbable than it was before.” Judge Black, on p. 16, refers to the case of The Commonwealth v. Demuth, 12 S. & R. 389, as a case in point, and adds: “ It is impossible for us to disregard a precedent so venerable without endangering the public confidence in our whole system of j urisprudence, for it all rests on stare decisisIn the case referred to, the prisoner pleaded not guilty, and former acquittal, upon which issue of fact was formed. Both issues were submitted to the same jury. The verdict was guilty, in the usual form. Tilghman, C. J., onp. 391, said: “ The jury ought not to have been charged with both these issues at once, because, if they found for the defendant, on this plea of auirefoits acquit, no further trial ought to have been had. A former acquittal was a bar to the present indictment.” In a note to 6 Cox Crim. Cases, 181, the true rule is stated: “If there was in truth no such record, or an existent record were incorrectly set forth, he might simply deny its existence, and they would be triable' by the court. If an existing record were correctly set out, but it did not apply in point of fact to the offence to which it was pleaded, the Crown would traverse the identity of the offences, and this issue would be submitted to the jury.”
“ When a defendant pleads former acquittal or conviction, and not guilty, both issues ought not to be put to the jury at the same time. * * * Until the issue upon the plea of former acquittal, or former conviction, is disposed of, there can be no trial in chief.” Henry v. The State, 33 Ala. 389.
In the case of The State v. Nelson, 7 Ala. 610, a plea of former conviction was filed, after which an issue was formed upon the plea of not guilty and a jury impanelled and sworn; *443after that the jury was discharged and the cause continued. The court,on p. 613,says that the practice was very loose, and adds: “ It seems to have been assumed that the issue growing out of the plea of former conviction was to be submitted to the jury at the same time as the proof of the crime. All such issues, however, are collateral, and though they may be tried by the jury summoned to pass on the trial in chief, yet it is exceedingly irregular to submit them in connection with the inquiry as to the guilt or innocence of the accused.” And again, on page 614, the court says : “The whole difficulty in this case is, that the jury was prematurely sworn and irregularly impanelled; as there could be no trial in chief, until the collateral issue or plea in bar was disposed of in some way. It is true, the prisoner might have waived the collateral issue, and then had a trial of the one in chief; but the court could not compel him to do so.” And the court sustained a conviction at a subsequent term, holding that the accused was not in legal jeopardy by impanelling the jury to try the issue of not guilty, whilst the collateral one of former conviction was undisposed of, without the waiver of the accused. Danneburg v. The State, 20 Ind. 181, is referred to, as in conflict with the ruling in this case. The point was not raised in that case. It is expressly declared that the question of the sufficiency of the plea was not before the court. Neaderhouser v. The State, 28 Ind. 257, held, that, although the accused might give in evidence every matter of defence under the plea of not guilty, he was not prohibited from pleading specially, and the court also held that, inasmuch as he could properly give the same matter in evidence under the plea of not guilty, the case would not be reversed on account of an erroneous ruling in striking a special plea from the files. The facts stated in the special plea in that case tendered an issue of the guilt or innocence of the accused, and must have been tried at the same time with the one on the general plea of not guilty, whilst the issue tendered by the special plea in the case at bar was a collateral one, entirely *444unconnected with the guilt or innocence of the accused, and as we have seen, could not be tried with the other. In that case the accused could not be prejudiced by striking out or sustaining a demurrer to the special plea. In the case at bar, it is clear that she would.
If such plea is tendered by the prisoner, and the prosecutor demurs to it, this is an admission that the record exists as pleaded. Commonwealth v. Myers, 1 Va. Cas. 188, 229, 232. A novel assignment is not admissible in a criminal case, and the proper and only mode of replying to a pica of former conviction is to traverse the alleged identity. Duncan v. The Commonwealth, 6 Dana, 295. To such a plea, a replication of an arrest of judgment is bad ; it shows the indictment was defective, or that a conviction could not have been had upon it for the offence charged in the second indictment. Henry v. The State, 33 Ala. 389. Whenever the offences charged in the first and second indictments are capable of being legally identified as the same offence, by averment, it is a question of fact for the jury to determine whether the the averments are supported and the offences the same. But when the plea of atitrefois acquit upon its face shows that the offences are legally distinct and incapable of identification by averments, the replication of mil ticl record may conclude with a verification, and the court may decide the issue. Hite v. The State, 9 Yerg. 357; 1 Bishop Crim. Proced. 585, note.
But it is said, that even if the plea was a. good one, the prisoner was not prejudiced by sustaining a demurrer to it, because, under the plea of not guilty, she could introduce the same evidence and make the same defence that she could under the special plea, and that on appeal the court must give judgment without regard to technical error or defects, or to exceptions which do not affect the substantial rights of the parties. And hence the judgment ought not to be reversed on account of sustaining the demurrer to that plea. But it must not be forgotten that the laws and usages of this State, relative to pleading and practice in criminal actions, *445not inconsistent with the criminal practice act, as far as the same might operate in aid thereof, or to supply any omitted case, were continued in force. 2 G. &. H. 428, sec. 172; Hardin v. The State, 22 Ind. 347; Walker v. The State, 23 Ind. 61. It had always been the privilege of a prisoner to plead former acquittal or conviction. We have seen that when pleaded, it was his right to insist upon the trial of that issue first. If that was found against him, he was entitled to another jury to try the issue on the plea of not guilty. To deprive him of that right is not a technical error or defect within the meaning of sec. 160, 2 G. &. H. 427. It prevents him from having the issues tried separately, and of trying the issue on the special plea before he is put upon his trial on his plea of no.t guilty. It is not enough that the same testimony might have been given in evidence under the plea of not guilty. It is the separate trial that he is entitled to. In civil cases, all the issues of fact are submitted at the same time; whilst'in criminal cases, as we have already shown, the prisoner is entitled to plead specially former acquittal or conviction, and have that issue tried first, unconnected with the issue of his guilt or innocence of the charge in the indictment. So that in civil actions, when the general denial is in, it is not an available error to sustain a demurrer to a good special answer, if the facts alleged would be admissible under the general denial, because the same j ury would try the issues, whether formed by special plea or the general denial; and therefore no substantial rights of the party would or could be affected. In criminal cases, the error is an available one, because the issues are not properly triable at the same time. The prisoner is of right entitled to have each issue tried by separate juries. He has a right to two trials, and it cannot be said that his substantial rights are not affected, when he is deprived of that right.
The theory that a judgment in a criminal case must not be reversed, or the verdict of a jury set aside, unless it is unsupported by the evidence, or if it appears to be supported *446by the evidence, is at war with the statute, the uniform practice of the courts, and the safety of the citizen. It substitutes the peculiar and particular ideas of justice of the court or judge in each case for well established rules, regulations, and practice. The erroneous rulings of the lower court could never be corrected, unless the court of appeals should determine from the evidence that the verdict of the jury was wrong, although th'e verdict might have been influenced largely by such rulings. The statute provides that the court must charge the jury upon all matters of law which 'are necessary for their information in giving their verdict. Among the causes, for which a new trial may be granted, are, when the verdict has been decided by means other than a fair expression of opinion on the part of all the jurors, and when the court has misdirected the jury in a material matter of law. Now in this case, the jury were told that “ they must not forget that no number of minds could agree upon a multitude of facts, such as this case presents, without some yielding of the judgment of individuals upon the evidence, some deference to the opinions of others, without what some might call a compromise of different views.” They were not only to defer to the opinions of others, but they were to yield their individual judgment upon the evidence, and if they could not do so within reasonable bounds, judgment of condemnation was pronounced against them in advance, as being unfit to have a place in the jury box, or to be a member of any deliberative body. To listen to arguments, to hear reasons, to have their attention called to the evidence, the arguments of counsel, the charge of the court; to do it all patiently and with an earnest desire to harmonize views and arrive at a correct conclusion, is entirely different from yielding the judgment upon the evidence. After all the consultations of the jury, each juror must render his verdict according to his own individual judgment. There can be no such thing as yielding that, without a sacrifice of conscience. There can be no limits within which it can be yielded; hence' none can be *447reasonable. There can be no standard by which to test what would be reasonable and what unreasonable. They were told, however, that they must yield their individual judgment upon the evidence within reasonable limits and compromise their different views, without in any manner indicating what would be reasonable limits. Each was left to judge for himself, and under the rule prescribed, each might yield enough of his judgment, to enable them to arrive at a conclusion and render a verdict which would not be according to the individual judgment of a single juror. The verdict in such a case would not be a fair expression of opinion on the part of the jurors, and the means by which it would be decided would be a yielding of opinions upon the evidence, under the erroneous instruction of the court.
The counsel for the State call our attention to the charge that the jury must not convict unless their minds were convinced of the guilt of the accused beyond a reasonable doubt; that they were directed to examine the evidence carefully and dispassionately; to bring to the exercise of that duty their best judgment, and return into court that verdict which should commend itself to their consciences, as being in exact accord with truth and justice. The statute requires the court to instruct the jury and state to them all matters of law which are necessary for their information in giving their verdict. 2 G. & H. 417, sec. 113. And although the jury are made the. judges of the law as well as of the facts in criminal cases, the charge of the court is presumed to control their minds to some extent, in deciding the case and in arriving at a verdict; so much so, that when the court has misdirected the jury in a material matter of law, such misdirection is a ground for a new trial. 2 G. & H. 423, sec. 142, clause 4. This last charge must be taken in connection with the other, and in that they were told that it was their duty to yield their individual judgments upon the evidence, and make what might be called a compromise, in order to agree upon a verdict; *448-and being guided by that instruction, the jury might consider it to be their paramount duty to agree upon a verdict.
If an erroneous charge is given, it “ cannot be corrected by another instruction which may state the law accurately, unless the erroneous instruction be thereby plainly withdrawn from the jury. The effect of the conflicting instructions can only be to confuse the jury; and as they must follow one or the other, it is impossible to determine whether the influence of the court in such case has been exerted for good or evil.” Bradley v. The State, 31 Ind. 492; Clem v. The State, 31 Ind. 480.
Exception is taken to the following language used in the opinion in this case: “It is inconvenient to have a jury disagree and thus render it necessary that there should be another trial of the case, but this is a necessary consequence of a trial by jury.” We still think it better that parties should suffer the inconvenience and delay caused by a failure of the jury to agree upon a verdict, than that a verdict should be rendered against the judgment of a part of the jurors. The trial by jury in this State is based upon the theory that each juror is to decide upon the facts, as he understands them. Undoubtedly, jurors do make mutual concessions on minor matters. They are required to deliberate, decide, and make up their verdict by themselves, without aid or interference from anybody. How much each concedes, what compromises are made, what particular item of evidence is considered, or by what means the conclusion is arrived at, is not made known in the verdict. The twelve jurors must all agree upon the verdict, although they need not upon' the reasons for it. Each must decide for himself. He ought not to be required' “as a matter of law” to yield his individual judgment upon the evidence, in order to render a verdict. We fully appreciate the importance of a verdict in every case, but our anxiety for such a result must not be so great as to tolerate anything like dictation by the court towards the jury, or any *449attempt to unduly control their action. They must be left to a free, voluntary, conscientious verdict. " There ought not tó be anything in the conduct of the court toward the jury which would appear like pressing them to give up rational doubts or disregard difficulties which may arise in their minds upon the evidence of the case.” The State v. Austin, 6 Wis. 205.
y. W. Gordon, D. W. Voorhees, W. W. Leathers, y. Hanna, F. Knejler, C. C. Galvin, and 5". C. Wessner, for appellant. B. Harrison, y. T. Dye, and y. C. Denny, Attorney General, for the State.The history of jury'trials shows frequent failures to agree, and yet we require a unanimous verdict. It has been considered better and safer to adhere to the system, to suffer the inconvenience of such failure, than to abandon it. But if. jurors may be required by courts to surrender their judgment to their fellows, the theory of unanimous verdicts is practically abrogated, and the timid, conscientious juror will, be controlled by the strong-minded and determined.
We cannot say that the evidence in this case so clearly and satisfactorily establishes the guilt of the accused, beyond, a reasonable doubt, that the very decided language of the-charge did not exercise a controlling influence upon the minds of the jury. It seems to us that the true rule is, that where from the whole case it appears that the jury might have rendered a different verdict, then we may well consider that an erroneous charge leading to the verdict influenced! them, and is good ground for a new trial.
We do not consider it necessary to add anything to the-opinion on the other branch of instructions.
The petition for a rehearing is overruled.