People v. Lazard

ROTH, J.

The evidence in this case abundantly justifies a verdict of guilty for a violation of Penal Code, section 211, by appellant who also admitted three prior felony convictions.

Appellant urges however that a reversal is required because of a technical noncompliance with section 1127 of the Penal Code. This section reads:

“All instructions given shall be in writing, unless there is a phonographic reporter present and he takes them down, in which case they may be given orally; . . . Upon each charge presented and given or refused, the court must endorse and sign its decision and a statement showing which party requested it. If part be given and part refused, the court must distinguish, showing by the endorsement what part of the charge was given and what part refused.”

The record before us augmented to include the entire file of the superior court, contains all the instructions which must be considered adequate for the protection of appellant’s rights. These instructions in the file are topped by a pink binder containing in print the title of the court and cause with a subheading at the left with the printed words:

f Given

“instructions -jBefused”-

The pink binder is signed by the trial judge.

Attached to and following the pink slip are 15 instructions, all requested by the People. No instructions were requested by appellant. The said instructions are variously numbered. Each one is signed by the trial judge on the line in the right-hand corner at the bottom thereof provided for that purpose.

[349]

Bach instruction has printed in the lower righthand portion thereof extending from line 32 to line 37 the following:

The instruction which immediately follows the pink slip hears at the top in print the number 51 and has a red check after the word “Refused.” None of the other 14 instructions are checked in any of the four places provided. All of them however are signed by the trial judge.

The reporter’s transcript does not set forth verbatim, in substance or otherwise, the context of the 14 instructions referred to, but the reporter’s transcript and the clerk’s transcript each contains the statement that the jury was instructed.