While concurring in the reversal of the conviction on the ground that the appellant was not an agent within the meaning of the statute cited, I differ in some respects from what is said of the time of giving the advisory instruction. I am in disagreement on the necessity and wisdom of declaring the place of such an instruction in a trial to be controlled by a rule which leaves the judge no choice within the given description of cases. It seems to me possible that in some one of the many and varied situations that may arise in trials, it may be found more convenient and more conducive to a just result that the jury be advised of the meaning of a statute earlier than at the end of the trial, whether the defendant be making defense on it or not, and even if it prevents argument to the contrary. I do not quite see that there is any substance in a distinction between the court's doing *Page 278 that, and its stopping and correcting a misstatement of law by counsel even at the opening of trial, which was held proper inSimond v. State, supra. Upon these considerations I think the court should go no further than to declare the better practice in the present case, and thus avoid adoption, for all trials, of a rule departure from which in any other instance coming within the description given would constitute reversible error.
It seems to me that it is desirable to shun, when possible, the promulgation of such unyielding rules for procedure.