dissenting.
Although a majority of the Court did not join in an opinion which I earlier authored in this case, it is gratifying indeed to observe that there are now four members of the Court adhering to the principles which were espoused in Rueth. Other than that the Court fails to comprehend the principles which were reaffirmed in Rueth, and here arrives at the wrong result, today’s opinion is a commendable example of an appellate court’s attempt to achieve a desirable consistency in decision law.
Some additional emphasis needs to be placed on the views of Judge Cunningham in regard to the remedying procedures he determined to employ. First, it must be noted that he was quick to recognize the impropriety of not conforming to the statutory provisions1 and that he did not have *157the benefit of the Rueth case, which had not then been handed down.2
Where I differ from the other members of the Court is in the understanding and application of steps 3 and 4 of the Rueth four-step procedure. In particular, our apparent disagreement narrows down to the situation where the communication is shown, as is so here, and the ensuing concern is whether it appears to have been of such a character that it may have affected the jury. Examples of mere technical errors in judge-jury communications readily coming to mind would include (and have been known to include): a note or verbal inquiry to the judge asking permission to call home; an inquiry from the foreman complaining of the heating system, or of the air conditioning; an inquiry as to dinner arrangements; an inquiry as to hours of deliberation; ad infinitum. Such communications, of course, “may affect” the jury in a sense of having some adverse or beneficial affect on some or all of the jurors, personally, but I would not expect any serious argument that “may affect the jury” has any such application in a personal context.
What that language is meant to apply to is communications which may affect the jury in its deliberations. Any contention to the contrary would be pure sophistry.
From that point one simply steps to the next. An instruction, in writing, sent from the trial court to the jury, comprised of twelve members who have taken an oath to follow the court’s instructions, can hardly be said to be other than a communication of a character which may have affected the jury in reaching its verdict. More simply put, the test is whether the communication may have affected the jury verdict. And, the only answer is that an instruction to the jury as a matter of law is unarguably such a communication. It is exactly that classification of communication which specifically must not be given to the jury unless there is full compliance with I.C. § 19-2204:
“After the jury have retired for deliberation, if there is any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney and the defendant or his counsel, or after they have been called.” (Emphasis added.)
Here, unlike Rueth, we deal with a known and preserved communication — but it isn’t merely a communication, it is an instruction from the court as to the law, and furnished to the jury on a particular point whereon the jurors wanted further enlightenment. As a matter of law it cannot be said, as per step 4 of the four-step procedure, to have not had any effect.
That is exactly Randolph’s contention. The state, on the other hand, has persuaded the Court that the instruction, although given to the jury after it had retired to deliberate, and given in violation of a statutory mandate designed to preserve the integrity of jury deliberations, was correct, and, that being so, where is the harm?
I submit that most practicing attorneys, even of little experience in the criminal trial field, will have little trouble in perceiving the fallaciousness of the state’s argument and the Court’s rationale.
It is not enough that, following such a violation as here occurred, defense counsel are given an after-the-fact opportunity to see the instruction, and attempt to demonstrate any error inherent therein. Nor will I put myself in that box and attempt to climb out, as counsel here avoided doing.
Perhaps the instruction, as far as it goes, is not incorrect. Is that the underlying principle of Rueth ? Is that the end of appellate inquiry? I think not. Had the statute been complied with, defense counsel, for one thing, could have asked for and *158been given time to furnish the court with additional clarifying instructions. For certain the instruction was not all that complete: In supplying the definition requested, the court wrote in terms which many trial lawyers would also find in need of defining, to-wit, “physical custody or the right to physical custody.” “Physical custody” probably would present no problem. But what, exactly, is the right to physical custody?
And, it may well be asked, who for the state or who on the court can with absolute confidence assure Randolph that all of the jurors had the instruction read to them? There is both a probability and a possibility that one or more may have been attending to their physical needs, or simply were not interested. Such are not idle musings. There is a better way.
As stated in United States v. Noble, 155 F.2d 315, 318 (3d Cir. 1946):
“For not only are counsel and the defendant entitled to hear the instructions in order that they may, if they are incorrect, object to them and secure their prompt correction by the trial judge, but it is equally important to make as certain as may be that each member of the jury has actually received the instructions. It is therefore essential that all instructions to the jury be given by the trial judge orally in the presence of counsel and the defendant.” (Emphasis added.)
In the case at bar, in the face of a wholly irregular proceeding we are inferentially asked to assume that the belated instruction was read to the jury, that all heard it, that all recognized it as an instruction of the court, and hence binding upon them. The procedure followed in the present case precluded defendant’s ability to review the jury’s request, comment on its propriety, suggest additional or alternative instructions, or have the entire jury further instructed in open court. Most importantly, it also precluded Randolph’s counsel from arguing this instruction, with respect to the evidence and other given instructions. As was noted in Bland, “[t]he law has its best observance and commands the highest respect where its sanctity and inviolability in all its provisions is uniformly recognized and enforced by the courts. The interest of the people at large in maintaining its administration above reproach must always equal if not exceed the private or personal interest of any litigant.” (Emphasis added.) 9 Idaho at 805, 75 P. at 782-83. I.C. § 19-2204 is mandatory in its terms.
The state’s main contention is that the communication was harmless in that the definition of control given by the court was correct. However, the rule as set forth in Bland and Rueth is inapposite, stating that such a communication can be harmless only where it could not have had any effect on the verdict. The issue in question is not whether the instruction was correct, but whether the communication may have affected the verdict. As stated by Chief Justice Traynor of the California Supreme Court, and quoted with approval in Rueth, “the judgment below is suspect whenever an error has occurred which is more than a ‘mere technicality’ and which affects a substantial right and ‘unless the appellate court believes it highly probable that the error3 did not affect the judgment, it should reverse.’ ” Traynor, The Riddle of Harmless Error 35 (1970), quoted at 100 Idaho at 208 n.2, 596 P.2d at 80 n.2. The type of communication that may be held harmless was addressed in Rueth as follows:
“[W]e should be reluctant to overturn the results of a lengthy trial where the procedural violation amounts to a mere technicality, or where it is clear that the procedural violation occurred after the jury had actually reached its verdict, or where the misconduct involved could in no way *159have prejudiced and may even have benefited the losing party.” 100 Idaho at 207, 596 P.2d at 79 (emphasis added).
The communication in the present case cannot be said to amount to a mere technicality, nor can it be said that it could not have had any effect. This instruction went to the primary issue at trial, whether Randolph had possession or control of the marijuana. The fact that the jury requested this definition shows that they were concerned about whether Randolph had control, and, being given this definition, they resolved the issue against Randolph. In this regard the issue, although nearly identical to Rueth, is stronger in favor of reversal. There the court gave no further instructions, removing from contention any claim as to the accuracy of a belated instruction. Were we to have adopted in that case the state’s theory now pushed upon us, we would have held that there was no error simply because the court did not further instruct. Since the improper communication here cannot be held to be harmless error, the judgment should be reversed.
. Judge Cunningham was at some length in detailing his perplexity to counsel:
“If counsel will refer to 94 A.L.R. 271, they will find an exhaustive annotation regarding this specific question. I think it’s fair to state that the general law is that it’s improper for any communication to be had between the court and jury, either verbally or written communications in the absence of the defendant or defendant’s counsel. There is even an annotation as to when a defendant and his counsel waives this right, some cases hold that they waive this right if they’re not in the courtroom, but without any determination on my part as to whether or not the defendant and his counsel waived the right by their absence, I’ll say that I think, and would find, that the conduct, as I have outlined, is improper. That there should not have been any communication between the court or the jury, either written or verbal.
“The next question that comes, of course, is, is this sufficient to grant the motion for a new judgment, or motion for mistrial, or any of the motions that defendant has requested.
“You can find about any shade, an nuances, answers to this question that you want to in this annotation. In short, the Court, having gone all over the parade ground, you can pick your favorite case and justify it. There are cases holding that harm and prejudice is presumed; there are cases holding that there is no such presumption. There are cases holding that it’s up to the defendant to show, and to prove, by what weight of evidence I don’t know, but to prove that there was prejudice.
“This leads to a matter that has grated in my craw for quite sometime, and that is that in the past courts, particularly appellate courts, have spent a great deal more time considering the rules than they have on considering what effect the rules might have on a defendant. It’s my candid opinion, while it’s well to discuss theory, I think it should be well to discuss substance, so I guess what I’m saying, the court probably, including this court, spent a great deal more time talking about theory as distinguished from substance.
“In this particular case, there’s no question in my mind but what the defendant should be given the right to object to any communication, and I will shortly give the defendant that right. But, in this case, it seems to me that it takes an awful lot of presuming to presume that the communication, the question and answer, the manner in which it has been done, prejudiced the defendant in any way, so I don’t accept the theory that the mere act itself presumes, for instance in this case I’m not going to require the defendant to prove that he was prejudiced, all I’m saying is I cannot see that it did prejudice him, not presumptive on its face, particularly in view of the facts which I have stated.
“Now, I said I think the defendant should have an opportunity to object to the communication, that is, object in the sense that he explain to the Court, if he desires, why this particular communication prejudiced his client. That is what would have been done if counsel had been here, and through my failure to check with the clerk, or my failure to go further than I did go to find the defendant, he was prevented from this opportunity to object. If you want to object now and make your argument fine, if you wish time to consider it, that’s fine. What are your thoughts? But, on the whole, as it sits right now, I would deny the motion, because as I say, I believe I would follow, and do follow that line of decisions found in this annotation which shows that under these facts there is no presumption that the defendant was prejudiced until there is such a presumption or some weight brought to the attention of the Court that he was prejudiced, I would deny the motion.”
. I would surmise that Judge Cunningham would have granted a new trial on the basis of Rueth, had it been available.
. The word “error” as here used applies to the erroneous or irregular procedure and not to whether the communication was itself an erroneous statement. Undoubtedly the other members of the Court mislead themselves into rationalizing that any error-free instruction sent to the jury after it has retired to deliberate cannot be a prejudicial violation of I.C. § 19— 2204 and the Rueth principle. I find this somewhat amazing, to say the least, observing that the precedential effect of the Court’s opinion could well be devastating.