¶1 (dissenting).
¶2 I agree Avith the majority that the defendant did not “confess in open court” and that it was error to instruct the jury to bring in a verdict of guilty. From the holding that such an instruction was error Avithout prejudice I dissent. It is conceded that under the *56 accepted construction of the constitution the jury in a criminal-case has the “power” to acquit notwithstanding the evidence of guilt may he conclusive. That being the case, I cannot follow the reasoning that says an instruction which in effect deprives the jury of that power is without prejudice to the accused’s constitutional rights. It may be that the constitution as it is now interpreted is too generous toward an accused, but obviously that should be corrected by the people, not by the courts. The time may come when the right of trial by jury will be abolished. It has not yet come.
¶3 That a violation of a constitutional right can be without prejudice to the accused I cannot concede, especially where such right if protected embraces the possibility of an acquittal. We might as well say that no prejudice to an accused would arise from his being called by the state as a witness against himself because presumably he tells the truth, or that a deposition used against him could do no harm because other witnesses may have testified to the same effect. If the constitution has been rightly interpreted, it is just as positive in its protection of the accused in his right to a jury trial free from a peremptory instruction of guilt as it is in its protection against being a witness against himself or of his right to be confronted by the state’s witnesses.
¶4 The reason usually assigned for the right of a jury to acquit regardless of the state of the evidence is that the safety and liberty of the citizen will thereby more certainly be secured. Our forefathers had much experience with the king’s judges, and there can be no doubt that the framers of the constitution and of G. S. 1923 (2 Mason, 1927) § 9953, had the security of the accused citizen in mind when they safeguarded trial by jury. I cannot conceive how a directed verdict of guilty comes within the “verdict of a jury” required by that statute. The trial court thereby takes the determination of the case from the jury and it, not the jury, makes the determination of guilt.
¶5 In the case of State v. Koch, 33 Mont. 490, 85 P. 272, 8 Ann. Cas. 804, the supreme court of Montana had before it a case where there was no dispute in the evidence as to the homicide, the defendant *57 there, as here, frankly admitting the facts as shown by the state. The trial court had instructed the jury that it could not find the defendant not guilty. The supreme court in an able and convincing opinion granted a new trial on account of the prejudicial nature of the instruction. That is what I think we should do here. It is better that justice should be thwarted in a single instance than that even a guilty man should be deprived of a constitutional right or a fair trial. A new trial in this case would not necessarily mean ,an acquittal, but it would mean a greater regard for the constitutional rights of an accused, be he innocent or guilty. The problem of enforcing the criminal laws is largely one of apprehending the criminal. After he has been taken, the question of his guilt or innocence should be left where the constitution puts it, with a properly instructed jury.