¶1Concurring in Part With the Views of Justice Stewart. — I concur in the views expressed by Justice Stewart wherein he holds that a rehearing ought not to be granted; but the justice misapprehends my opinion when he states as follows: “I do not agree to that portion of Judge Sullivan’s opinion that such instruction should be given in any ease of the character of the present case. I believe that this court should not approve an instruction followed by the word ‘guilty’ as being the law of this state.” In my opinion I neither state nor intimate that an instruction followed by the word “guilty” is a proper instruction, but I do expressly hold in the former opinion that it was error for the court to indorse “guilty” at the foot of said instruction, but the instruction itself is a proper instruction to be given in any action where the crime is a felony. (See see. 7, art. 1 of the state constitution.) By sec. 7886, Rev. Codes, it is provided that upon each instruction presented and given or refused, the court must indorse and sign its decision as to whether the instruction is given or refused. The indorsement of “given” *412or “refused” and the signature of tbe judge thereto is no part of the principle of law embodied in the instruction. I did not hold in my former opinion that it was proper for the judge to indorse “guilty” in the place of “given” on an instruction and did expressly hold that it was error for him to do so.
¶2I am still of the opinion that the judgment in this case should be reversed for the reasons heretofore stated by me.