¶1 I dissent. I believe it might be easier to follow my reasons for dissenting if I set up the facts and circumstances as I gather them from the record.
¶2 The two defendants were charged with the crime of rape committed on the 24th day of February, 1947, by accomplishing an act of sexual intercourse with the prosecutrix by force and violence. The trial of the matter proceeded in the usual manner up until the time the attorney for the state commenced his presentation of evidence to show that there had been penetrations. Counsel for defendants then stated to the court and jury that it would not be necessary for the state to establish this element, as it was admitted by both the defendants.
¶3 Substantially, then, the only issue of fact was whether or not the acts were committed with the consent of the prosecutrix or over her protest and her resistance.
¶4 At the request of the defendants, the court instructed the jury that the crime as charged in the information included the crimes of battery and assault. The court then defined each of the three offenses and instructed the jury on the elements necessary to constitute the particular offense.
¶5 After the court had instructed the jury, counsel recorded their exceptions and departed. The jury retired to the jury room and after considering the matter for some time, the jurors returned into open court and the jury foreman stated the following:
“We would like to know this, your honor:
“In view of the fact that they admit — or speaking of the defendants —admit having committed sexual intercourse, can the jury consis *178 tently — and we have underlined that — find them guilty of a lesser charge of rape, which would be either of the two other included offenses?”
¶6 The trial judge held the jury in the jury box and attempted to contact the attorneys. After some considerable effort, he was unable to do so and thereupon, reconvened court and made the following statement:
“Under the law, gentlemen of the jury, the court is not permitted to re-instruct you in this case. The question that you have asked would require a definition of what you mean by ‘consistent’, and I can only say this to you, gentlemen of the jury, the instructions of the court seem to be clear to the court. I will ask you if you are having any difficulty understanding the meaning of any instruction. Mr. Aldous, is there any difficulty on that?
“Jury Foreman: I don’t think so, your Honor. I think we are fairly clear on the instructions, other than in the one set of circumstances that we outlined in the question. We realize that there are alternatives in the possibilities — -that is, several possible verdicts, let me put it that way.
“The Court: You have no difficulty understanding the instructions of the court and the meaning of the instructions, including the manner of procedure of the jury in deliberating? Any difficulty on that, Mr. Aldous?
“Jury Foreman: I don't believe we have had any difficulty understanding the instructions. It is a matter of consistently [sic] there, whether one can hold without the other.
“The Court: That matter, gentlemen, is not for the court to decide. It is a matter for the jury to decide.”
¶7 The procedure adopted by the trial judge seems to be in keeping with the requirements of Section 105-33-3, U. C. A. 1943, quoted in the majority opinion. This Section requires that new information must be given to the jurors in the presence of or after notice to the prosecuting attorney and the defendant or his counsel. While defendants were present in court at the time the jury returned, the trial judge was unable to reach or contact the attorneys. The statute requires the presence of the attorney for the state, and I seriously doubt the court could proceed without his presence or at least a waiver on his part.
¶8*179 Without detailing- all of the colloquy between the jury foreman and the judge, the record indicates that the jurors were not having difficulty in understanding the instructions, except that there seemed to be some doubt about the consistency of a verdict, if it were to be rendered on one of the included offenses. The doubt seems to me to have been a belief that the instructions were inconsistent with the evidence. The trial judge did not believe that he could decide the question of consistency for the jurors, and he, therefore, requested them to resume their deliberations, consider all the evidence and all the instructions given by the court, and try to arrive at one of the four verdicts submitted.
¶9 After the jury had again retired to the jury room, deliberations were resumed and approximately an hour and a half later, the jury requested permission to go to dinner. At this time, the foreman of the jury notified the judge that the jury was making some progress and nothing further was said about the prior uncertainty. Some three and a half hours later, the jury returned with a verdict of guilty of the crime of rape as charged.
¶10 I have some doubt under the facts of this case, that the included offenses of assault or battery should have been submitted to the jury. Unless the jury disbelieved all of the parties to the act, the defendants were guilty of the crime of rape or were not guilty. Be that as it may, the defendants requested the instructions on the included offenses and are in no position to complain if they invited the confusion.
¶11 I am willing to concede that there might be some difficulty encountered by a jury in determining how, under the facts testified to by the defendants, the jury could do anything but find one of two possible verdicts — that is— rape as charged or not guilty. It might require some discussion to determine whether or not a verdict of guilty of battery could be consistent, not with the instruction, but with *180 the evidence. In my opinion the instructions were clear and were well understood by the jurors. As a matter of fact, the foreman of the jury insisted that they had no difficulty with the clarity of the instructions. The difficulty they encountered was in molding the admissions into the framework of the crimes as defined by the court. Certainly the court could not tell the jury that one verdict could be rendered with consistency while another would be inconsistent. The instructions as given informed the jury that any one of four verdicts might be rendered with consistency, if the jury found the facts met the tests as outlined by the court.
¶12 If for the moment, we eliminate the instance of the jury returning to ask the one question, under the holding of the prevailing opinion we have the following situation: The majority of this court holds there is evidence from which the jury could find beyond a reasonable doubt that the defendants were guilty of rape. The majority opinion further finds that the instructions as originally given are correct, and no apparent error is present in the record. I now add the element of inconsistency which was suggested by the jury. The addition of this additional element does not, in my opinion, require a holding that the court below committed reversible error. The trial judge concluded he could not add to or detract from the instructions in the absence of counsel. He, therefore, admonishes the jury to deal with the information already furnished it and continue the study of the instructions submitted. The error is necessarily limited to the court’s failure to comment upon the instructions already given and how they can be fitted to the evidence adduced. If the instructions were correct in the original instance, I am unable to conceive how they became erroneous because the trial judge concluded he could not deal with them in the absence of counsel.
¶13 I know of no rule of law or of procedure which holds a trial judge to such a high degree of perfection that he errs when he requests a jury to further study the instructions and continue their deliberations. The judge might have done *181 differently. He could have made further efforts to contact counsel — holding the jury in the jury box, he could have continued the deliberations until the following morning, or he could have followed the course adopted, that is, request the jury to further study the instructions. He may not have selected, what we consider the best method, but that is not the determining factor. The problem posed by this case is whether the means used by the judge were such that we can say he committed prejudicial error.
¶14 Whatever confusion existed in this case was solicited by the defendants in their attempt to convince the jury that if convicted, the conviction should be of a lesser offense. Had the trial judge attempted to tell the jury it could consistently find the defendants guilty of one of the included crimes involved in this litigation, then I am certain that such an instruction, given in the absence of counsel, would not only have been the basis of an appeal but would have been the reason for a reversal. As I understand our procedure, a judge is not permitted to single out which offense might be consistent as under the instructions all verdicts which the jury are permitted to consider should be consistent with the facts.
¶15 In my opinion, the defendants were fairly tried, the jury was properly instructed and the trial judge did not commit error.