The opinion of the court was delivered by
Ellis, J. :The contention of the appellant is that “the proceedings had in the absence of the defendant were a part of the trial and did not cease to be so because reenacted in his presence,” and he urges that section 213 of the criminal code (Gen. Stat. 1897, ch. 102, §213; Gen. Stat. 1899, §5457), which provides that “no person indicted or informed against for a felony can be tried unless he be personally present during the trial,” was violated. It is also insisted that error was committed by the giving of oral instructions to the jury, contrary to the provisions of section 234 of the criminal code (Gen. Stat. 1897, ch. 102, §234; Gen. Stat. 1899, §5489), which provides that “the judge must charge the jury in writing, and the charge shall be filed among the papers of the cause.”
The proceedings in the absence of the defendant were such as ought never to have been conducted without his presence in court. It is quite certain, however, that he was not prejudiced by anything done before he was brought into court, for, before the jury were permitted to retire for further deliberation, *617the defendant’s absence was discovered, he was sent for, and upon his arrival the court cautioned the jury to disregard all that had occurred in his absence. It seems very clear that no right of the defendant can be considered as having been imperiled by that which transpired when the jury was first brought into court, for the reason that they were expressly directed by the trial judge to disregard it, and for the further reason that the jurors would certainly be most likely to remember, and, therefore, to act upon, the words last spoken to them by the court.
The learned counsel for the appellant relies chiefly, as to his first assignment of error, upon the case of The State v. Myrick, 38 Kan. 238, 16 Pac. 330, but in that case the trial court, in the absence of the defendant, gave written instructions “as to what constitutes manslaughter in the second and third degrees,” and also included “a phase of the law relating to assault and battery.” In the case at bar, the court in direct terms declined to give the jury any additional instructions, and, in any view which may be taken of the remarks made by the judge, we think the cases clearly distinguishable. The error committed by the court in conducting proceedings appertaining to the trial when the defendant was not personally present was cured by the admonition of the court and the repetition of all that had transpired, as above set forth. (State of Iowa v. Hutchinson, 95 Iowa, 566, 64 N. W. 610.)
The second assignment of error is far more difficult, and, in the estimation of the writer, involves very grave doubts, but a majority of the court are of opinion that, from the particular facts and circumstances of this case, prejudice to the rights of the defendant cannot be fairly deduced from the words employed by the *618trial judge. That a trial judge ought not to repeat a part of the instructions and tell the jury that the words mean just what they say, that he could not make them plainer, is not denied. That a judge should not give the jury oral directions to go back to the jury-room and endeavor, in a spirit of conciliation, to harmonize their views; that he should not direct the foreman to see that a ballot is taken every fifteen minutes; that they should not be informed that he intends to keep the jury until it has agreed upon a verdict, is admitted. -That the rights of the defendant would be jeopardized by any or all of these statements on the part of the court is a more doubtful proposition. In other words, prejudicial error will not be inferred from the mere fact that the trial judge made brief oral statements to the jury, but the court will look into the record for information, and will consider all that is said, and the circumstances under which the remarks complained of are made, before deciding to reverse a case therefor.
In the case of The State v. Potter, 15 Kan. 308, our statute requiring the charge to the jury to be in writing is compared to those of other states, and several decisions of other courts are cited. Mr. Justice Brewer, in the opinion, said :
“It will be noticed from this review that our statute is not so specific or minute in its restriction upon the action of the court as those of several other states. The language is general, and simply calls for a written charge, and requires it to be filed among the papers.”
The several propositions “ deduced from the authorities” by the learned judge (p. 320) are worthy of studious consideration. In that case the foreman of the jury asked the following question : “I ask whether *619a party could be an accessory, aider or abetter of another who committed the crime of manslaughter in the second degree ? ’ ’ Thereupon the court gave wri t-ten instructions, and stated orally to the jury the following :
“I mean by that, that makes him principal, and not accessory. There is no such thing, in my judgment, as accessory to this case. Those acts make him principal, and should be regarded by you as principal, and not accessory. He is either principal, or nothing.”
The court held that these oral statements did not constitute error, as they were made in direct response to a question propounded by the jury. We think that case presented stronger reasons for inferring prejudice to the defendant’s rights than does the one at bar. Besides, in that case there was no direction or caution given to the jury not to consider the oral statements, as there was in the one we are considering.
As to the advice given to the jury in regard to their conduct and the spirit in which they should act in their deliberations, the case presents an analogy to the case of Territory v. King, 6 Dak. 132, 50 N. W. 623. The third clause of the syllabus in that case is as follows :
“A jury having been out twenty-eight hours in a prosecution, for a felony, and having been brought in for further instructions, the court, after giving.the instructions, stated to them : ‘I think you will be able to arrive at a verdict in this case; the case has been twice tried, at a great deal of expense to this county, and it seems to me, gentlemen, that you ought to agree on a verdict.’ Held, that while' these remarks were objectionable, they would not warrant setting aside the verdict.”
*620In The State v. Garrett, 57 Kan. 132, 45 Pac. 93, the third clause of the syllabus reads as follows:
“An oral statement made by the judge to the jury after the case had been submitted to them, in which he admonished them that it was important that they should agree upon a verdict, and directed, their return to the jury-room to make another effort to that end, examined, and held not to constitute prejudicial error.”
In neither of the cases just cited was any effort made to cure the error committed by the court in giving the oral directions complained of, while, in this case, at the very close of the proceedings had in the presence of the defendant, and just before the jury retired for further deliberation, the court made the following statement:
“I do not desire or design to give you any additional instructions, and you are to remember these written instructions are your sole guide, and anything that may have been said contrary to them is n’t intended. What I have intended to do is simply to reiterate.”
We think that, under the circumstances of this case, it is fairly to be presumed that the jury gave heed to this final statement of the court, which certainly required them to follow the written instructions and be guided by them alone, and if they did do so, the words thus spoken would operate as a cure of former errors.
Therefore, in the opinion of this court, no prejudicial error was committed by the trial court, and its judgment will be affirmed.