(dissenting): Appellant did not abstract the evidence. At the oral argument his counsel advised us that the evidence was sufficient, if believed by the- jury, to sustain the verdict. The evi*610dence abstracted by the state, fairly summarized in the opinion, confirms this view; indeed, it appears sufficient to have sustained a verdict for second degree murder. In this situation we may repeat as applicable a statement from the opinion in State v. Bowman, 106 Kan. 430, 431, 188 Pac. 242: “What we are accustomed to call ‘the merits of the case’ are not involved.”
Careful counsel for appellant, watching every step in the progress of the trial, as was their right and duty, point out several things not in full harmony with the law and procedure as established in this state, and which they contend require the granting of a new trial. Two of these contentions require special consideration: (1) The court in an instruction told the jury the punishment provided by law for the several degrees of murder and manslaughter, and (2) the instruction was given orally.
Taking-up these questions: Is it error, requiring reversal, for a trial court, in its instructions in a criminal case, to tell the jury what punishment the law prescribes for the offense charged? This court has never' so held. In the only decision of the court bearing directly on the point (State v. Bowser, 124 Kan. 556, 561, 261 Pac. 846) the giving of such an instruction was held not to be prejudicial. In several cases the court has had occasion to say the jury has nothing to do with the punishment in a criminal case; this is a matter for the court to rule upon — or words to that effect. (State v. Cook, 17 Kan. 392, 396; State v. Bell, 107 Kan. 707, 714, 193 Pac. 373; State v. O’Keefe, 125 Kan. 142, 263 Pac. 1052; State v. Reuter, 126 Kan. 565, 566, 268 Pac. 845; State v. Woodman, 127 Kan. 166, 172, 272 Pac. 132; Levell v. Simpson, 142 Kan. 892, 896, 52 P. 2d 372 (appeal dismissed, 58 S. Ct. 503, 80 Law Ed. 485.)
In none of these had the trial court told the jury in its instructions the punishment prescribed by law for the offense charged. Some of them have to do with the increased punishment imposed under the habitual criminal act. (R. S. 1933 Supp. 21-107a.) These cases do no more than announce the rule, with which I fully concur, that in the division of duties and responsibilities between the court and the jury in the trial of a criminal case it is the function and duty of the jury to pass upon the facts shown by the evidence and to determine whether such evidence shows the defendant to be guilty or innocent of the crime charged, while it is the function and duty of the court to determine all questions of law which arise in the progress of the case, to approve or disapprove a verdict of guilty returned by the jury, and if it be approved, to determine what pun*611ishment under the law should be imposed, and to render a judgment in accordance therewith. For some offenses the court is authorized to grant paroles; for others it is not. For some offenses the court, within prescribed limits, must fix the specific punishment; for others the statutes fix the extent of the punishment without power of the court to change. If defendant previously had been convicted of a felony, that fact, when established, must be taken into account by the court in adjudging the punishment. All these matters respecting the punishment are for the court to determine and adjudge — they are not to be determined by the jury, or, to use the language of some of the opinions, supra, “the jury has nothing to do with the punishment.” However, the punishment adjudged by the court must be not only authorized by the law, but it is founded on the verdict of the jury. The verdict is the basis from which the court starts to examine the law to determine the punishment to be adjudged. The fact that jurors happen to know, or had been told by the attorneys or by the court at sometime in the progress of the case, what punishment would follow their verdict has never been held in this state to vitiate their verdict.
No statute is cited by counsel which specifically prohibits a trial court from telling the jury in its instructions the punishment which the law prescribes for the offense charged; neither is one cited which specifically authorizes that practice. We have a statute (R. S. 62-1405) which disqualifies a juror who “believes the punishment fixed by the law to be too severe for the offense.” It is not unusual for the prosecuting attorney, in qualifying jurors, to advise each of them the punishment fixed by law for the offense charged and to ask the juror if he believes the penalty too severe. This practice has been held not to be erroneous. (State v. Curtis, 108 Kan. 537, 196 Pac. 445.)
In practice it appears some of our trial courts are careful not to include in their instructions a statement of the punishment for the offense charged; others appear almost uniformly to do so, while, perhaps, others do so in certain classes of cases only. Whether including such a statement constitutes reversible error was raised by this court in but one case cited by counsel (State v. Bowser, supra), where the practice was criticized, but held not to be prejudicial. Our own research discloses no other case in which the question was raised. Hence, our opinions, except in the Bowser case, do not treat the question. We have taken a short time at our disposal to examine abstracts in an effort to determine to what extent trial courts instruct as to penalties. In many of the abstracts examined instructions are *612not set out, other points in the case being raised by the appeal. In the majority of the abstracts examined, where the instructions are set out, the trial courts did not state in their instructions the penalty for the offense charged. Of the recent cases examined the penalties were stated in the instructions in State v. Thyer, 143 Kan. 238, 53 P. 2d 907; State v. Barbour, 142 Kan. 200, 46 P. 2d 841; and in State v. Handler, 142 Kan. 455, 50 P. 2d 977. Skipping some years, and examining a few abstracts, we found the instructions stated penalties in State v. Wright, 112 Kan. 1, 208 Pac. 630, and some years earlier in State v. McCullough, 96 Kan. 453, 152 Pac. 766, and State v. Powers, 92 Kan. 220, 139 Pac. 1166. This was only a sketchy examination covering three short periods. Perhaps they sufficiently indicate the practice in the last twenty years or more.
The next question to be considered arises from the fact that on a question or a request from the foreman of the jury the court orally stated to the jury the penalties fixed by law for the offense charged and the various degrees thereof and later reduced this statement to writing in the form of an instruction and delivered it to the jury, as stated in the opinion. Appellant contends this was the giving of an oral instruction in violation of our statute (R. S. 62-1447), the pertinent portion of which reads:
“The judge must charge the jury in writing, ... In charging the jury he! must state to them all matters of law which are necessary for their information in giving their verdict. . . .”
All this had been done in this case before the incident now under consideration arose. The jury had been charged by the court in its written instructions, which had been read to the jury before argument in the case, in conformity to R. S. 62-1438. In the charge so given the court had stated all matters of law necessary for the information of the jury in giving its verdict. Appellant makes no contention that the statute had not been complied with fully. Appellant’s complaint is that after the court had fully complied with the statute it made an oral statement to the jurors concerning a matter of law not necessary for their information in giving their verdict. The statement of this complaint takes the question for our consideration out of the scope of the matters covered by the statute. (R. S. 62-1447.) The application of the statute arose in State v. Huber, 8 Kan. 447, 451, in which the record seemed to disclose “that the court below did not charge the jury in writing.” The court held: “Of course the court erred in this respect.” In State v. Potter, 15 Kan. 302, a homicide case, after the jury had been out to consider their *613verdict they returned into court and their foreman asked the following question:
“I ask whether a party could be an accessory, aider, or abettor of another who committed the crime of manslaughter in the second degree.”
The court, over defendant’s objection, gave the jury the following instruction:
“A person who aids or assists another in the commission of any crime is equally guilty with the person who actually commits the crime, and may be charged, tried, and convicted the same as the principal, and may be' regarded by the jury in every respect as if he were the principal.”
In addition to this written instruction the court stated orally to the jury:
“I mean by that, that makes him principal, and not accessory. There is no such thing, in my judgment, as accessory in this case. Those acts make him principal, and should be regarded by you as principal, and not accessory. He is either principal or nothing.” (p. 306.)
The principal question in the case was whether this oral statement should be held to be a violation of the statute and to require a reversal. The court held it should not. The opinion of the court, by Brewer, J., reviews decisions from other states passing on similar statutes. It was pointed out that in some of the other states the statutes are much more definite as to what is prohibited to be stated orally. For example, the Missouri statute under which Mallison v. State, 6 Mo. 399, was decided provided:
“That in no criminal case shall any court give to the jury any charge or instruction on any question of law or fact, except the same be in writing and filed in the cause.” (p. 402.)
Other statutes were referred to and the decisions thereunder. It was 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.” (State v. Potter, 15 Kan. 302, 319.)
The court then stated five propositions which it concluded may fairly be deduced from the authorities. We summarize these: (1) Where no written charge is given it is error, compelling reversal. (2) Where the record simply states a part of the charge was given orally, without stating what part, the statute will be held to apply and the judgment reversed. (3) It is immaterial whether the oral portion of the charge is given before or after the jury retires. *614It is error in either case. (4) The fact that an oral communication has passed from the court to the jury is not itself proof that the statute has been violated, but the court may properly make oral statements as to the form of the verdict, the manner in which the trial has been conducted, the behavior of the jury or counsel or parties, or any other oral statement which is not fairly and strictly a direction or instruction upon the question or rule of law involved in or applicable to the trial, or a comment on the evidence. (5) Where the jury propounds a question the court may make a direct answer without reducing it to writing if, in so doing, it does not make an independent statement or rule of law. The opinion then says:
“It may be remarked . . . that the purpose of this statute is to secure to the defendant the exact rulings of the court, in order that he may avail himself of any error in those rulings; that it was not intended to cast any unnecessary burdens upon the court, or to hamper or restrict communications between the court and jury; that it should be so construed as fairly to secure that purpose, and not made a mere weapon of technical error.” (p. 320.)
In State v. Bennington, 44 Kan. 583, 25 Pac. 91, while the opinion, written by a commissioner, does not disclose it, the abstract reveals that of the nine instructions given to the jury four of them were given orally, and that these pertained specifically to matters of law necessary for the information of the jury in reaching its verdict. It is obvious the trial court had not seriously attempted to conform to the statute. The opinion, however, lays more stress upon decisions from other states, where the statute had more specific prohibition respecting oral statements by the court, than our statute has, as pointed out in State v. Potter, supra.
In State v. Stoffel, 48 Kan. 364, 29 Pac. 685, several hours after the case had been submitted, the court sent for the jury and learned that it did not fully understand the law of the case, or the written instructions which had been given. In answer to inquiries, and upon its own motion, the court proceeded “to orally charge the jury at considerable length as to what constitutes felonious intent and the unlawful taking of the property of another, as well as what are the duties of a juror in measuring the value of testimony. Explanations of some portions of the general charge were made, and in some.cases the court modified the rules of law originally stated to the jury.” Obviously this oral statement related to matters of law necessary for the information of the jury in arriving at a verdict. The court properly held the statute (R. S. 62-1447) had been violated.
*615In the three decisions above cited reversing the trial courts (State v. Hubber, State v. Bennington, and State v. Stoffel, supra), the statute was clearly- violated. The statement in State v. Potter, 15 Kan. 302, of the purpose of the statute is sound and has stood throughout the years. It is not designed to be “made a mere weapon of technical error.” It was not held to apply in that case where what was said orally to the jury more nearly pertained to a “matter of law necessary ... for their information in giving their verdict” than what was stated orally in this case. In later cases, where the appellants sought reversal for violation of this statute, the point was held not to be well taken. (State v. Chandler, 31 Kan. 201, 1 Pac. 787; State v. Hobbs, 62 Kan. 612, 64 Pac. 73; State v. Gill, 63 Kan. 382, 65 Pac. 682; State v. Borchert, 68 Kan. 360, 74 Pac. 1108; State v. Labore, 80 Kan. 664, 103 Pac. 106; State v. Keehn, 85 Kan. 765, 118 Pac. 851; State v. Evans, 90 Kan. 795, 136 Pac. 270; State v. Dunford, 91 Kan. 898, 139 Pac. 430; State v. Parks, 133 Kan. 568, 570, 1 P. 2d 261; State v. Jones, 137 Kan. 273, 20 P. 2d 514; State v. Finney, 141 Kan. 12, 34, 40 P. 2d 411.)
Some of these had to do with a communication between court and jury concerning punishment to be imposed — fully as objectionable as what was done in this case.
Examining the question from another viewpoint:’ Let us concede for the purpose of this part of the discussion that the statement orally made by the court to the jury pertained to “matters of law necessary for their information in giving their verdict,” within the meaning of R. S. 62-1447, and hence was a violation of that section. This is appellant’s contention, and for him it is the most favorable position to state it. Does it follow that the judgment of the trial court should be reversed? Not on the record before us. This shows that so far as the guilt or innocence of defendant, or the “merits of the case,” are concerned a just result was reached. No complaint is made of the selection of the jury, that any disqualified person served as a juror, that there was any misconduct of the jury, or of the prosecuting attorney; that any improper evidence was received on the part of the state; that any evidence defendant desired to offer was excluded, or that written instructions were not given the jury covering “all matters of law . . . necessary for their information in giving their verdict.” By not abstracting the evidence, and by the statement of his counsel at argument, appellant concedes the evidence sustains the verdict. It seems clear to me *616appellant is using R. S. 62-1447 solely as “a weapon of technical error.”
Tn the trial of any important contested case irregularities, even violations of statutes, are likely to occur. Early in our history it was said:
“The whole spirit of civil and criminal codes of practice, alike, is-to disregard technicalities and observe the substance only.” (Territory v. Reyburn, McCahon 134, 1 Kan. [2d ed.] 551, 555.)
We have a statute which reads:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (R. S. 62-1718.)
This statute is being given more and more effect as the years go by, and its wisdom is appreciated. When mistakes of procedure, or even of law, occur in the progress of the trial, instead of reversing the judgment of the trial court for that reason alone, we look to see what result, if any, followed. If it did not affect the substantial rights of a party to the action it is ignored. Indeed, the party complaining of the mistake has the burden of showing that it affected him adversely. (See the many cases annotated under this section in our Revised Statutes and Supplement thereto.) Some of these cases show direct violations of statutes of a character practically impossible to show a bad effect (see particularly State v. Peterson, 102 Kan. 900, 171 Pac. 1153; State v. Smith, 114 Kan. 186, 188, 217 Pac. 307), yet, because of the lack of such a showing the violation was ignored. Here appellant makes no showing that the action of the court of which he complains had any effect on his substantial rights. All he does is to contend the statute has been violated, and asks a reversal because of it. That is not enough.
Two matters of less consequence are mentioned. It is said the court made the oral statement complained of after the jury was “hopelessly locked.” On that point the record shows the jury had been out about two and one half hours. The court, closing its business for the day, sent for the jury. The following colloquy between its foreman and the court is shown:
“The Court: Members of the Jury: Have you agreed upon a verdict?
“The Foreman: No, sir; we have not, Judge.
“The Court: Pass up the papers, please.
“The Foreman: We are hopelessly locked.
“The Court: It is rather early to take to being hopeless.”
*617The court then admonished the jury and discharged them for the night. It will be observed the statement was volunteered by the foreman; the court had not asked for it. Anyone familiar with the trial of, such cases knows the idea expressed by the foreman had been formed prematurely, and was so regarded. No trial court would place any reliance on such a statement made so soon after the jury had been considering a murder case such a short time. If the jury had been out two and one half days instead of that many hours the statement might have meant something; as it was, it meant nothing. The point is trivial and serves only as something to talk about.
The other matter is the suggestion in the opinion that counsel would have been entitled to argue this oral instruction. It does not appear appellant or his counsel ever thought of this point; for no request to argue it was made at the time, and no complaint has been made, either in the trial court or here, that such argument was refused. More than that, it formed no basis for additional argument. (See State v. Gill, supra.)
A just result was reached in the trial of this case; the contrary is not seriously contended. There is no error in the case which affected the substantial rights of appellant. The judgment should be affirmed.