People v. Mack

PRESTON, P. J.

Defendant was convicted by a jury of the crime of assault with a deadly weapon. He appeals from the judgment and from an order of the trial court denying his motion for a new trial.

Appellant contends that the court committed prejudicial error in permitting the witness Clayburn to testify, for the reason that said witness had remained in the courtroom during the progress of the trial after the court had made an order excluding all witnesses from the courtroom. There is no merit in this contention. The disobedience of the court’s order to remain outside the courtroom during the progress of the trial might well have subjected the witness to punishment for contempt of court, but it is no ground for rejecting his testimony. (See

People

v.

Boscovitch,

20 Cal. 436; 27 Cal. Jur. 64.)

Appellant also claims the court instructed the jury orally without the consent of the defendant. The statute authorizes such instructions to be given to the jury in a criminal case, if taken down by the phonographic reporter. (Sec. 1093, subd. 6, Pen. Code;

People

v.

Bourke,

66 Cal. 456 [6 Pac. 89];

People

v.

Wheatley,

88 Cal. 114 [26 Pac. 95];

People

v.

Leary,

105 Cal. 486 [39 Pac. 24].)

To avoid uncertainty as to the instructions given the jury the Criminal Practice Act required that the charge be given in writing, except when the parties mutually consented that it be oral. This was the rule until 1874 when section 1093 of the Penal Code was amended to provide: “If the charge be not given in writing, it must be taken down by the phonographic reporter. ’ ’

In 1897 the law was further changed, when section 1127 of the same code was amended. This amendment provides: “All instructions given (except such as might incidentally be given during the admission of evidence) shall be in writing, unless both parties request the giving of an oral instruction, or consent thereto, and when so given orally,