(dissenting).
I adhere to the views expressed in the original opinion that the remarks of the trial judge to the jury in this case were cautionary directions and cannot be fairly characterized as a charge within the meaning of R.S. 15:389, which requires the judge to deliver his charge in writing whenever requested so to do.
The prevailing opinion on rehearing attempts to place this case on the same footing as State v. Wilson, 169 La. 684, 125 *583So. 854. But that case is clearly distinguishable from this one. There, the judge orally instructed the jury as to the law governing the matter of recovery of the property by the owner or its return to the owner by the accused, who was on trial for obtaining goods under false pretenses with intent to defraud and who had requested a written charge. This instruction was violative of R.S. 15:389 because it involved a principle of law pertaining to the guilt or innocence of the accused and it was admittedly given as a special charge to the jury.
Here, as demonstrated in the original opinion, the remarks of the judge to the effect that the jury was not to be concerned with the sentence which might be imposed, in the event it found appellant guilty, had nothing whatever to do with his guilt or innocence; it was neither a special charge nor did it form part of the general charge.
Furthermore, even if the remarks could be fairly viewed as a charge and thus violative of the statute, the infraction, at best, would have been purely of a technical nature from which appellant sustained no injury and, if Article 557 of the Code of Criminal Procedure (R.S. 15:557) means anything at all, appellant should not be granted a new trial. That Article, which is founded on the just concept that reversals of convictions in criminal cases based on technical errors are not favored, expressly provides that a new trial is not to be granted for any error of any matter of pleading and practice unless the court, after an examination of the entire record, is convinced that it has probably resulted in a miscarriage of justice and that errors which are insubstantial will not constitute grounds for reversal even though a statutory right has been violated.1 There is not the slightest doubt in this case that the remarks of the judge were in accordance with law and were sound directions given to the jury to counteract the sympathetic appeals made by defense counsel for an acquittal.
The purpose of R.S. 15 :389 is to secure to the accused the right of having the charge of the court placed in writing in order that he may avail himself of any error therein. In construing a similar statute many years ago, Mr. Justice Brewer *585(subsequently a member of the United States Supreme Court) said in State v. Potter, 15 Kan. 302, “ * * * that it was not intended to cast any unnecessary burdens upon the court, or to hamper and restrict communications between the court and the jury; that it should be so construed as fairly to secure that purpose, and not made a mere weapon of technical error; * * *
I respectfully dissent.. State v. Rini, 151 La. 163, 91 So. 666, which holds that it is a fatal error if any part of the requested charge is orally given, was decided long before the enactment of the Code of Criminal Procedure in 1928. Therefore, that decision is not authority for a holding that a new trial must be granted because of a technical violation of Article 389 when no substantial right of the accused has been prejudiced. The opinion in State v. Wilson, 169 La. 684, 125 So. 854, which is founded on the ruling of the Rini case, does not refer to Article 557 of the Code of Criminal Procedure and, therefore, cannot be regarded as authority compelling the granting of a new trial where the error complained of does not work substantial injury to the accused.