¶1(concurring specially): I agree this case should be affirmed, but object to the opinion approving the criticism, of the jury given by the trial court. It is improper in either a civil or criminal case for the court, after a verdict has been returned, but before it has been received, to seriously criticize the jury for what the court conceives to be a disregard by the jury of certain evidence in the case.
¶2The appellant’s abstract shows, that when the court made its criticizing remark “the jurors spoke up two or three of them at once and said, ‘We didn’t understand it that way. We picked up the wrong verdict and signed it and would like to have an opportunity to correct it.’ ” The court then asked the jury if that was true and they all answered in the affirmative and stated further that they had by mistake picked up the wrong form of verdict. This coming so spontaneously upon the inquiry of the court, and from several of the jurors, and being confirmed by all of them, conclusively shows that the verdict first signed was not the one agreed upon and was signed by mistake, and in that situation it was proper for the court to permit the jury to return to the jury room and sign the verdict which they really had agreed upon. From the attitude of the jury, no doubt the same thing would have occurred had the court simply asked the jury if the verdict rendered was their verdict and if they *394were satisfied with it. Especially is this true in view of the fact that the former conviction had been clearly established, not even having been denied by the defendant when he was on the witness stand. I, therefore, base my affirmance of the judgment upon the fact that the record unmistakably discloses that the verdict first signed by the foreman and brought in was signed by mistake and was not the verdict which had been agreed upon by the jury. Thus I would overlook, but not approve, the inadvertent remark of the court.