(dissenting).
I respectfully dissent from division II of the majority opinion and the result.
I join the majority in denouncing the practice of requiring the jury to deliberate without sleep all night or into the early morning hours. In most instances, it would seem to be the better procedure to provide sleeping quarters or permit the jury to separate overnight at a reasonable hour as authorized by R.C.P. 199(b) as amended by chapter 475, Laws of the Sixty-second General Assembly and made applicable to criminal cases by chapter 308, Laws of the Sixty-third General Assembly, First Ses-' sion, page 482, even though the latter course may create other problems which could contaminate a jury verdict.
However, I do not agree that the evils of overnight deliberation are so absolute that we should go contrary to all the authority *659in the country and deprive the trial court of its traditional broad discretion in determining how long a jury should deliberate. Coulthard v. Keenan (1964), 256 Iowa 890, 898, 129 N.W.2d 597, 601; State v. Siegel (1936), 221 Iowa 429, 434, 264 N.W. 613; 89 C.J.S. Trial § 482, p. 133; 53 Am.Jur. 677, Trial § 962.
It is true we have in recent cases stated our objection to requiring the jury to deliberate into the early hours of the morning. State v. Kittelson (1969), Iowa, 164 N.W.2d 157, 167; Gibbs v. Wilmeth (1968), Iowa, 157 N.W.2d 93, 100; Kracht v. Hoeppner (1966), 258 Iowa 912, 917—918, 140 N.W.2d 913, 916; Coulthard v. Keenan (1964), 256 Iowa 890, 898, 129 N.W.2d 597, 601; State v. Green (1963), 254 Iowa 1379, 1390, 121 N.W.2d 89, 93, 95 A.L.R. 810. We held it sufficient grounds to support the granting of a new trial in Kracht v. Hoeppner, supra, and Coulthard v. Keenan, supra. We did not decide whether it was reversible error in State v. Kittelson, supra, and Gibbs v. Wilmeth, supra. In State v. Green we held the circumstances which revealed the effect of prolonged deliberation on members of the jury deprived defendant of a fair trial and reversed the case on that ground. In so doing we considered the affidavits of five jurors who stated “they were exhausted and that it was impossible for them to properly deliberate, and some of them at least toward the end of the jury deliberation changed their ballot from acquittal to conviction by reason of complete exhaustion.”
The majority opinion recognizes in division III that these matters should not have been considered. See also State v. Banks (1940), 227 Iowa 1208, 1211, 290 N.W. 534; State v. Siegel (1936), 221 Iowa 429, 432, 264 N.W. 613; In re Estate of Osborn (1919), 185 Iowa 1307, 1318, 168 N.W. 288.
Research indicates we went further in State v. Green, supra, in limiting the trial court’s discretion than any other jurisdiction reviewed. The circumstances here are not nearly so aggravated as in Green.
In the following cases under similar circumstances it was held the trial court did not abuse its discretion in requiring the jury to continue deliberations without rest. DeGrandis v. Fay (1964) (CA 2 NY), 335 F.2d 173, 176 (24 hours after two notes from the jury expressing fatigue) ; Martin v. State (1940), 29 Ala.App. 395, 196 So. 753, 754 (overnight); Mills v. People (1961), 146 Colo. 457, 362 P.2d 152, cert. den., 369 U.S. 841, 82 S.Ct. 869, 7 L.Ed.2d 846 (over 27 hours); Cato v. State (1936), 183 Ga. 277, 188 S.E. 337, 338 (23 hours); Walker v. State (1965), 246 Ind. 386, 204 N.E.2d 850, 857 (over 14 hours); State v. Shelby (1933), 333 Mo. 610, 62 S.W.2d 721, 726 (over 26 hours); Commonwealth v. Moore (1959), 398 Pa. 198, 157 A.2d 65, 93 A.L.R.2d 616, 621-622 (overnight); Jones v. State (1945), 148 Tex.Cr.R. 374, 187 S.W.2d 400, 159 A.L.R. 739, 748 (24 hours); Glasser v. State (1921), 90 Tex.Cr.R. 116, 233 S.W. 969, 974 (24 hours). See Annos. 93 A.L.R.2d 627; 164 A.L.R. 1265.
The closest case to the facts here in which it was held the trial court abused its discretion is Commonwealth v. Clark (1961), 404 Pa. 143, 170 A.2d 847, 848. The court recognized it was within the trial court’s discretion to direct a jury to deliberate through the night but held discretion was abused in that case because of the obvious confusion of the jury. Defendant had objected to continued deliberations.
The majority quotes from Jahnke v. State (1903), 68 Neb. 154, 94 N.W. 158, 167-168, 104 N.W. 154. I have no quarrel with the quoted language. There the jury deliberated six days. The verdict was not set aside because the record failed to show they were not rested during this extended period of time. The court recognized the general rule that the length of time a jury is kept together rests largely in the trial court. It is not authority for the proposi*660tion that the trial court abuses its discretion by letting a jury deliberate until 5:30 a. m.
I am not willing to state on this record that the trial court who was present, saw the jury and was cognizant of the circumstances then existing had no authority to permit the jury to deliberate until 5:30 a. m. I do not believe this act, ipso facto, makes the verdict of this jury one of coercion, which must be the reason for setting it aside.
II. There is a second feature. of this particular case which is of even more concern. Defendant’s attorney was with the judge when the jury was reported deadlocked at 2:00 a. m. He and the judge agreed the verdict urging instruction should not be given. No objection was made when the judge told the jury to continue deliberations. He did not re.quest that the jury be put to bed.
In my mind it is unconscionable to permit a criminal defendant to remain silent and gamble on a favorable verdict secure in the knowledge that it will be set aside if it is unfavorable. The state has no comparable advantage in the event of an acquittal. “A defendant may not gamble on the verdict and then secure a new trial if he • loses.. When a jury should be discharged for failure to agree is usually a matter within the sound discretion of the trial court.” Jenkins v. United States (1945), 5 Cir., 149 F.2d 118, 119, cert. den., 326 U.S. 721, 66 S.Ct. 27, 90 L.Ed. 427.
“ * * * if a party obtains knowledge during the progress of the trial of acts of or affecting jurors, which he shall wish to urge as objections to the verdict, he must object at once, or as soon as the opportunity is presented, or be considered as having waived his right to object.”- 89 C.J.S. Trial § 483, p. 134.
• If defendant had objected to keeping the jury deliberating or if the jury itself had protested, an entirely different situation would have been presented and I would, under such circumstances join in holding the trial court did abuse its discretion.
I would hold the trial court did not abuse its broad discretion under these circumstances and that defendant, in any event, waived his right to object by failing to do so when he had the opportunity.
I would affirm the trial court.
SNELL, J., joins in this dissent.