dissenting: I must respectfully dissent from holding-’ (5) in the syllabus and the corresponding portion of the court’s opinion. The court has concluded that under the facts disclosed; by the record, the district judge’s belated instruction and subsequent events did not coerce the jury so as to constitute reversible: error. I do not agree.
We condemn lawyers for making statements to a jury not within the issues of the case. We should be much more careful with; respect to similar statements made by a district judge. In the' instant case, the judge referred to the expense of trials, particularly-in connection with a retrial of the appellant if agreement was not reached. That had nothing to do with the question of the appellant’s: guilt or innocence as disclosed by the evidence. .
I have previously stated my disapproval of an Allen or “dynamite” instruction in my dissent in State v. Oswald, 197 Kan. 251, 263, 417 P. 2d 261. The trend of courts everywhere appears to disapprove such an instruction, and I think rightly so. The anno-: tator at 100 A. L. R. 2d 177, 181, makes the following comment:
"While it might be problematical to attempt to discern any definite trend in the courts’ views of the propriety of instructions urging dissenting jurors to give due consideration to the majority’s opinion, it may be noted that such instructions have been disapproved, or at least criticized, in several recent decisions, both in the federal and in the state courts.”
See, in addition to cases cited in the annotation, Burroughs v. United States, 365 F. 2d 431 (10 Cir. 1966).
*249In the case at bar, the remarks of the district judge equated his own position as a trier of the facts with that of the jury. This analogy was obviously improper and clearly unwarranted in view of the constitutional entitlement of an accused to a unanimous verdict by a jury of twelve of his peers before conviction. Likewise, the use of the term “pigheaded” by the district judge in addressing the jury was highly improper. No juror should be subjected to censure or ridicule for adhering to his honest convictions. Moreover, veiled reference to keeping the jury a long period of time was made. A jury should be left free to act without any real or seeming coercion on the part of the district court.
The district judge’s remarks went substantially beyond those in Oswald. In my judgment they were of such objectional nature it is impossible to escape the conclusion the result was coercive. I would reverse the judgment and grant a new trial.