On Rehearing
HAMLIN, Justice ad hoc.A rehearing was granted in this case, limited to a reconsideration of Bill of Exceptions No. 1.
This bill was reserved to the alleged failure of the trial judge to charge the jury wholly in writing, as required by Article 389 of the Code of Criminal Procedure, LSA-R.S. 15 :389, which reads:
“The judge shall deliver his charge in writing, whenever requested so to do either by the prosecution or the defense prior to the swearing of the first witness.”
The record discloses that prior to the swearing of the first witness, counsel for the appellant requested the trial judge to deliver his charge in writing, which request was granted. At the close of the case, prior to giving his written charge, the trial judge, taking note of arguments of defense counsel urging the jury not to consign the defendant to the penitentiary or prison, addressed the following oral remarks to the jury and instructed the reporter to take them down in writing:
“Under our system of law and the administration of public justice, the Jury has its particular place. The Jury finds the question of guilt or innocence, and that only. The Court imposes the sentence if the Jury should find the defendant guilty.
“The Legislature, the representatives of the people fixes the penalty, both the *575minimum and maximum and character of penalty that the court in its wisdom might impose. Your function is simply to return a verdict of guilt or innocence without regard to the question of punishment. You have no right to acquit a guilty man, whom you believe guilty, because of the severity of the penalty as you might consider; nor should you convict a man whom you should have reasonable doubt about his guilt because the penalty might be relatively small.
“In view of the fact however, that •one counsel has used the word ‘penitentiary’ and the other ‘prison’ as the possible punishment which could be visited upon the defendant, you should be acquainted with the law and the law says; insofar as punishment:
“ ‘Whoever commits a crime against nature shall be fined not more than $2,000.00 or imprisoned with or without hard labor for not more than five years, or both.’
“Therefore, if you should find the defendant is guilty it is within my judgment and discretion to fine him one dollar or two thousand dollars, and no jail sentence and/or as an alternative, if he didn’t pay the dollar or two thousand dollars, I could place him in the Parish Prison for as much as five years, or give him a jail sentence and a fine or give him a two thousand dollar fine and five years at hard labor at the Lousiana State Penitentiary.
“There is no such thing as a necessary jail sentence of any kind or character anywhere in this case. That is a matter that doesn’t concern you at all, if you should find that the State has proved the defendant guilty beyond all reasonable doubt.”
The issue for decision on this rehearing is whether the above quoted oral statement was a part of the general charge, and, if so, did its delivery constitute reversible error. This issue appears to have been settled by the opinion and decree of this Court in State v. Wilson, 169 La. 684, 125 So. 854, 855, wherein we held:
“ * * * The general charge of the court was committed to writing, but, in connection with the giving of special charge No. 1, the court orally instructed the jury as to the law governing the matter of the recovery of the property by the owner, or its return to the owner by the acused, and charged the jury that such recovery or return of the property cannot be pleaded or urged as a defense to the prosecution. (Underscoring ours.) (Double underscoring italics of original decision.)
“Before the jury retired, and in the presence and hearing of the jury, defendant excepted to the charge of the *577court on the ground that it was not entirely written, hut was delivered orally in part.
“As shown by the clerk’s note of evidence, the court then instructed the jury to ignore the oral part of the charge.” (Double underscoring italics of original decision.)
“Under the doctrine of State v. Rini, 151 La. 163, 91 So. 664, this is a fatal error. The statute is mandatory that the charge must be given wholly in writing, when the request is made timely by a defendant. Revised Statutes of 1870, § 28.
“Article 389 of the Code of Criminal Procedure also provides that: ‘The judge shall deliver his charge in writing, whenever requested so to do either by the prosecution or the defense prior to the swearing of the first witness.’ (Double underscoring italics of original decision.)
“The framers of the Code of Criminal Procedure were familiar with the interpretation placed by this court on section 28 of the Revised Statutes, relating to requests for charges in writing to the jury, and, as the provisions of the Code are similar to those of section 28 of the Revised Statutes, the same interpretation must be placed upon the later provision of the Code.
“It was contended by the trial judge in the Rini case that the portion of the charge taken down by the stenographer would have been the same if he had embodied it in a written charge. * *
“The instruction of the trial judge that the jury ignore the oral part of the charge given does not, in our opinion, cure the error resulting from his failure to give the whole charge in writing, after timely request made by defendant.”
In the present case, the court orally and extemporaneously charged the jury as follows :
“Under our system of law * * * Your function is simply to return a verdict of guilt or innocence without regard to the question of punishment. You have no right to acquit a guilty man, whom you believe to be guilty, because of the severity of the penalty as you might consider; nor should you convict a man whom you should have reasonable doubt about his guilt because the penalty might be relatively small.” (Underscoring ours.)
“In view of the fact, however, that one counsel has used the word ‘penitentionary’ and the other ‘prison’ as to the possible punishment which could be visited upon the defendant, you should be acquainted with the law and the law says; insofar as punishment;” (Underscore ours.)
*579“ ‘whoever commits a crime against nature shall be fined not more than $2,000.00 or imprisoned with or without hard labor for not more than five years or both.
******
“There is no such thing as a necessary jail sentence of any kind or character anywhere in this case. That is a matter that doesn’t concern you at all, if you should find that the State has proved the defendant guilty beyond a reasonable doubt.” (Underscoring ours.)
In our opinion, a comparison of the emphasized portions or elements of the charge in this case with the emphasized portions of the opinion in the Wilson case, supra, clearly shows a similarity between the two cases.
In the instant case there was no statement by the trial judge to the jury that it ignore the oral or extemporaneous charge. Even though the admonition to ignore the oral charge was given in the Wilson case, supra, this Court on appeal held that said admonition did not cure the error resulting from the failure to give the whole charge in writing after timely request made by counsel.
In its brief on original hearing, the State admits that if the trial judge’s remarks are characterized as part of the charge, or a special charge, they should have been reduced to writing before being read to the jury.
In 88 C.J.S. Trial § 266, p. 725, we find the following definition of a charge:
“A ‘charge’ which, in common-law practice, is regarded as synonymous with ‘instruction,’ is the final address made by a judge to the jury trying a case, before they make up their verdict, in which he sums up the case, and instructs the jury as to the rules of law which apply to its various issues, and which they must observe in deciding on their verdict when they shall have determined the controverted matters of fact; the address made by the judge after the case has been closed, when he comments on the testimony or instructs the jury in any matter of law arising on it; the exposition by the court to a petit jury of those principles of the law which the latter are bound to apply in order to render such a verdict as will, in the state of facts proved at the trial to exist, establish the rights of the parties to the suit; * * * any and all final instructions addressed by the court to the jury for the purpose of governing their action in making or aiding to make a final disposition of the case in favor of one litigant or the other.”
In LSA-R.S. 15:385, it is stated:
“The judge shall charge the jury on the law applicable to the case and shall charge the jury that it is their *581duty to accept and to apply the law as laid down for them by the judge.”
The above quoted charges to the jury followed the mandate of LSA-R.S. 15 :385, and its contents were those set forth in the statement from C.J.S., supra.
We conclude that the instant instruction to the jury must be characterized as a charge, and under the clear and concise provisions of LSA-R.S. 15:389 it should have been in writing.
LSA-R.S. 15 :389 is couched in the mandatory “shall”, and the questions of reversible error and prejudice cannot be considered.
In the Wilson case, supra, it is further stated:
“The argument that the accused suffered no injury was -made in the Rini case, as in the present case, but was without avail, as: ‘Written charges are often better considered, more clearly expressed, and, in complicated cases at least, less likely to contain error. An oral charge, although when the judge is delivering it, he knows that it is being taken by a stenographer, is not so likely to secure these advantages. Therefore, for this reason, and no doubt for others, the law permits either party to the case to require that the charge be delivered in writing.’ State v. Rini, 151 La. 179, 91 So. 664, 669.”
We further conclude that the authorities relied upon by the State must yield to the rulings pronounced in the Wilson and Rini cases, supra.
The decree rendered by this Court on the original hearing of this matter having been set aside by the granting of a rehearing, it is now ordered that the conviction and sentence appealed from be annulled and set aside, and that this case be remanded to the trial court to be proceeded with according to law and the views herein expressed.
The right of the State to apply for a rehearing is reserved.
McCALEB and SIMON, JJ., dissents.