(dissenting).
I dissent. Here is a clear case of taking from a defendant the court’s instruction of his presumption of innocence and his right to acquittal unless his guilt is proved beyond a reasonable doubt. This is the necessary result of saying, “You *973don’t have to pay any attention to my instructions unless you want to.”
Here at 5 p. m. the jury is in a dispute, coming from the jury room so hot and loud that it is heard by the judge in his chambers. He tells the jury it is likely if they do not come to an agreement that they will be locked up for the night. To me it is an absurdity to say of a jury, in such heat it must be reprimanded by the judge, that all the jurors will at once regain the required calm deliberation necessary for what t'he court describes as a “conscientious conviction.” In such heated pressure those for conviction were in a position to say, “The judge himself has told you you don’t have to bother about this business of burden of proof and presumption of innocence. Let’s settle our quarrels and go home.”
No accused in our American system should be put in such a position. The judgment should be reversed.
Rehearing denied; DENMAN, Chief Judge, dissenting.