(concurring) — I concur in the conclusion reached in this case as well as in all that is said, except in so far as a distinction is attempted to be drawn in paragraph two of the opinion, between an oral instruction and the language used by the learned trial court in withdrawing from the consideration of the jury certain evidence which had been erroneously allowed to come into the case upon the trial. I agree that in this no error was committed by the learned trial court for which defendant may complain, but I am not,prepared to say that what was said by the court below might not, had it been unfavorable to defendant instead of favorable to him, have been error, for that it was in the nature of an oral instruction to the jury in the face of the statute which requires all instructions to juries to be in writing.
As stated, however, what was said in this case was not hurtful error for which defendant may complain. This for the reason that the Statute of Jeofails (Sec. 5115, R. S. 1909) provides, among other things, that “no indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected . . . for any error committed at the instance or in favor of the *516defendant.” I think the provisions of the section from which I quote effectively prevent defendant from bottoming reversible error upon what was said by the trial court, and the manner of the saying thereof, and upon this ground, so far as paragraph two is concerned, I base my concurrence.