The opinion
Hoyt, J.
(dissenting). — I am unable to agree with the conclusions of the majority of the court as stated in the foregoing opinion. There are only two of the reasons for reversal that I think of sufficient importance to require at *620 tention. One of these is the action of the court in imposing a fine upon counsel for defendant during the progress of the trial. I agree with what is said by the majority as to the impropriety of the proceeding. There is nothing disclosed by the record sufficient to justify the court’s action in that respect. On the contrary, if the facts stated therein were all that induced such action, it was entirely unwarranted. It does not follow, however, that the people of the state should be put to the expense of a re-trial of the cause. It does not sufficiently appear that it was prejudicial to the defendant to warrant a reversal. In my opinion such action instead of injuring the cause of the defendant with the jury would have a tendency to excite their sympathy in his behalf.
The other alleged error as to which I desire to say a word is the one founded upon instruction number ten. In my opinion this instruction stated the law. An instruction similar to this, only that it stated that the presumption would be that it was murder in the “second degree” was sustained by this court in the case of State v. Payne, cited in the foregoing opinion. If it was “ murder in the second degree,” it was “murder,” and the instruction stated only a fact deducible from our former decision.
It is claimed, however, that the jury might have assumed that the facts stated would warrant the presumption that murder in the first degree had been committed. If the instruction stood alone it might have been so construed, but taken in connection with the other instructions it could not. Such other instructions clearly defined murder in the first degree, and such definition compared with what was said in the instruction under consideration so limited and qualified it that it was not possible that the jury could have been misled thereby.
An instruction identical with this one was sustained by the supreme court of the State of Missouri in State v. Evans, 65 Mo. 574 , and I am content to follow the authority of that learned court, especially when under all the circumstances I am satisfied the defendant could not have been *621 injured by the instruction. The evidence introduced upon the trial satisfies me that no other verdict could have been rightfully rendered. ' Such being the fact, the judgment should not be reversed unless it appeared from the record that error had been committed of such a nature as to have probably tended to the injury of the defendant.
Scott, J., concurs.