¶1 (dissenting)—I dissent. The majority bases its conclusion that the defendant should be granted a new trial on four grounds, and I will briefly state my position as to each of them:
¶2 (1) The majority holds that exhibits C and J should not have been permitted to go to the jury room. The trial judge’s certificate stating that exhibits C and J were admitted in evidence should be conclusive on that point. In any event, they were both so clearly admissible that the appellant cannot claim prejudice by reason of the fact that they, together with the other exhibits, were in the jury room.
¶3 (2) The majority holds that the admission of a hearsay statement by the witness Gardner was so prejudicial that the trial court’s subsequent instruction to disregard it could not remedy the error. I agree that the statement of the witness Gardner set out in the majority opinion should not have been admitted; but I see nothing so prejudicial *938 about it that the trial court’s instruction to disregard it should not have rectified the error. The trial court, after telling the jury to disregard the statement, put the direct question to the jury:
“Now is there any member of the jury who thinks it will be impossible to put that entirely out of his mind. Is there any member of the jury who thinks he cannot do that?”
¶4 There was no reply to this question, and the only inference possible from the jury’s failure to make any reply is that each member of the jury was of the opinion that it would be possible to disregard the objectionable statement.
¶5 (3) The majority holds that the admission of the testimony of Mrs. Pratt concerning a statement made to her by Mrs. Kiser, the widow of the man who had been killed, was erroneous and prejudicial. Mrs. Pratt was a rebuttal witness. The purpose of her testimony was not to prove the guilt of the appellant, but to impeach the testimony of Mrs. Kiser to the effect that her husband was a brute and frequently beat her. Mrs. Pratt’s testimony that Mrs. Kiser had told her that the appellant came into their home and destroyed a theretofore peaceful existence, was admissible for the purpose of impeachment, and the trial judge gave an instruction limiting it to that purpose.
¶6 (4) The majority holds that the giving of instruction No. 18 was prejudicial error. That it was erroneous must be conceded; but, far from being prejudicial, it was extremely favorable to the appellant. The instruction read, in part:
“But if his mental condition at the time of the alleged criminal act is such that he was incapable of having any intent, his act is not a crime at all.”
¶7 It opened for the appellant an avenue of escape, - if the jury would accept his defense that his state of intoxication was such that he was incapable of having any intent. The appellant’s argument on this point is that no jury would acquit him, but that, if the result would have been to make him guilty of manslaughter instead of entitling him to an acquittal, the jury might have been willing to find that *939 he was so intoxicated that he was incapable of having any intent. This is an ingenious argument, but it admits that all that has been said before about prejudicial error is window dressing, and amounts to no more than this, that a jury will not follow the court’s instructions if it doés not approve the result. I decline to make a judicial determination to that effect. Under the instruction given, if the jury had believed the appellant incapable of having any intent, he would now be a free man. I can see no conceivable prejudice and a very great advantage to him in such an instruction.
¶8 Being unable to agree with the majority on any of the four propositions on which the reversal is based, I am of the opinion that the judgment on the verdict should be affirmed.
¶9 Jeffers, C. J., and Mallery, J., concur with Hill, J.