The opinion of the court was delivered by
Hatcher, C.:This is an appeal from a conviction of forcible rape. The sufficiency of the evidence to sustain the conviction is not challenged. We need not, therefore, present in detail the revolting facts surrounding the forcible ravishing of a young girl twelve years of age.
Limited pertinent facts will be presented as we discuss the specific issues to which they apply.
The appellant first contends that it was nineteen days after the motion for a new trial was overruled before he was sentenced, con*55trary to the provisions of K. S. A. 62-1723 which, after providing for disposing of a motion for new trial, states:
. . If the motion for a new trial is overruled, sentence shall be imposed within five days. . . .”
In State v. Nelson, 200 Kan. 411, 436 P. 2d 885, we considered a similar contention and held:
“The provision of K. S. A. 62-1723 relative to sentence being imposed within five days if a motion for new trial is overruled is merely directory, not mandatory nor jurisdictional, and a valid sentence may be imposed within a reasonable time thereafter.” (Syl. 1.)
We also stated in the Nelson case that the purpose of the time limitation was to prevent prolonged, unreasonable delay in the sentencing of a defendant after his motion for new trial was overruled. To hold that the statute is anything but directory could well affect the propriety of the sentence. The circumstances in the case before us present a fair example of necessity for additional time.
Immediately after the motion for a new trial was overruled, the trial court proceeded to sentence the defendant. The question of sentence under the habitual criminal act then arose. The court expressed a doubt as to whether the crime of conspiracy, presented as a previous conviction, was a felony under the laws of the state of Iowa where the previous conviction took place. The matter of sentencing was continued for further evidence. The above proceedings took place on October 4, 1967, and the final sentence was pronounced on October 23, 1967.
Under the facts and circumstances presented we cannot say that the delay in the sentencing was unreasonable.
The defendant lays great stress on the contention that he was in fact denied the constitutional right to counsel because of incompetency of his trial counsel. Different counsel was appointed for the appeal.
Defendant’s attorney was appointed by the trial court at defendant’s request. He had some thirty-five years of general experience in the practice of law. It would appear, however, that counsel was not familiar with K. S. A. 60-421, contained in the new rales of evidence, placing limitations on evidence of previous convictions of crime as affecting the credibility of a witness.
When the appellant took the stand to deny his guilt, his counsel questioned him as- to his criminal record with the evident intent of taking the sting from such facts when he was cross-examined by the *56prosecution. However, such cross-examination would not have been proper under the provisions of K. S. A. 60-421. We quote the direct testimony of appellant:
“Q. Now, you have a previous record, don’t you?
“A. Yes, sir.
“Q. You have had several altercations with the police?
“A. Yes, sir.
“Q. Had a jail breaking episode when you were just a boy?
“A. Yes, sir.
“Q. And charged with burglary and a few offenses—
“A. (interrupting) Yes, sir.
“Q. —of that nature? You understand, of course, that all of that is going to be brought up by the County Attorney on cross-examination and the jury is going to be fully advised of all of your past misdeeds?
“A. Yes, sir.
“Q. Notwithstanding that, though, are you saying under oath here and now drat you are not guilty of the charge here in this case?
“A. Yes, sir.”
The prosecution on cross-examination pressed for details of appellant’s previous crimes and asked if appellant had not been charged with forcible rape in 1964. At this point appellant’s counsel objected and, regardless of the direct examination, the trial court stopped the entire line of examination and directed the jury to disregard the question and any inference that might be drawn from it. Again, before delivering the written instructions, the trial court orally instructed the jury that “any evidence of the prior criminal record of the defendant in this case is to be disregarded by you in reaching your decision in this case.” If the jury followed the instructions of the court no prejudicial error resulted. We must assume that it did.
This was the only slip on the part of counsel for appellant and it resulted in nonprejudicial error under the court’s instructions. In all other respects counsel showed unusual diligence and ability, particularly on the motion for new trial when he even went so far as to accuse himself of incompetency.
We doubt if one of the best lawyers ever laid claim to having tried a case with absolute perfection. Any good lawyer, having finished the trial of a case, can think of errors that he could have avoided and also think of moves that might have improved his client’s chances. New trials cannot be granted for such reasons. An accused cannot be guaranteed a lawyer that will present a perfect trial. He can only be guaranteed a trial free of prejudicial *57error. In Hicks v. Hand, 189 Kan. 415, 417, 369 P. 2d 250, the court stated:
“The guarantee of effective assistance of counsel does not guarantee the most capable or learned counsel possible, but only a competent and reputable member of the bar. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; and Trugillo v. Edmondson, 176 Kan. 195, 270 P. 2d 219.) . . .”
I£ convictions were to be set aside because counsel stated on motion for a new trial that he had overlooked or misconstrued a statute, or after trial thought of some move that might have been beneficial to the accused, it is doubtful if many criminals would be placed in confinement.
The appellant objects because the trial court did not instruct in writing regarding prior offenses citing State v. Roth, 200 Kan. 677, 438 P. 2d 58 in support of his contention. It will suffice to suggest that the Roth case requires written instructions when evidence of prior offenses are admitted, not when the juiy is instructed to disregard such evidence.
The appellant contends that he was denied due process because one of the jurors fell asleep during the trial and that another juror was hard of hearing. At the hearing on the motion for a new trial, counsel for the appellant examined a large number of the jurors close to the point of harassment but failed to establish facts supporting either contention. The trial courts conclusion that the evidence did not support the contentions disposes of this issue.
A careful examination of the record discloses no trial errors that would justify the granting of a new trial.
The judgment is affirmed.
approved by the court.