People v. Hersey

By the Court, Crockett, J.: After the jury had retired to deliberate on their verdict, they returnee! into Court and propounded to the Judge certain questions as -to the law of the case, which were answered orally by the Judge, in the absence of the phonographic reporter, and without the consent of the defendant. At the close of the oral charge one of the jurors inquired of the Judge whether they were “ to go by the written instructions ”; to which the Judge orally replied: “Yes, sir; you are to go by the written instructions as to the law of this case, and by nothing else.” After the jury had again retired, and the phonographic reporter had [575]returned into Court, the Judge stated to the reporter his recollection of what had occurred, and it was then reduced to writing by the reporter. This action of the Court was excepted to by the defendant, and is relied upon as error.

Sec. 1093 of the Penal Code, as amended in 1874, and in force at the time of the trial, provides, in subd. 6, that “ if the charge be not given in writing it must be taken down by the phonographic reporter.” There can be no doubt that this provision was intended to be mandatory and not merely directory.

From an early period in the legislation of this State it was the uniform policy to require the charge to the jury in a criminal case to be in writing, and sec. 362 of the Criminal Practice Act, as amended in 1855, provided that “ such charge shall be reduced to writing before it is given, and in no case shall any charge or instruction be given to the jury otherwise than in writing, unless by the mutual consent of the parties.” In construing this statute it has been repeatedly held to be error per se to charge the jury orally, except with the consent of the parties. (People v. Beden, 6 Cal. 246; People v. Payne, 8 Ibid. 341; People v. Demint, 8 Ibid. 423; People v. Ah Fong, 12 Ibid. 345; People v. Shaw, 26 Ibid. 76 ; People v. Sanford, 43 Ibid. 29; People v. Prospero, 44 Ibid. 186.)

Sec. 1093 of the Penal Code, as amended in 1874, is not substantially different from the statute under which these decisions were made. It explicitly provides that if the charge be not given in writing, it must be taken down by the phonographic reporter; the only change being that the charge need not be in writing, provided it is taken down at the time by the phonographic reporter. In either event the charge is thus reduced to writing, either by the Judge or by the reporter, when it is given, and there can thereafter be no uncertainty as to what the charge was. But if the Court could charge the jury orally in the absence of the phonographic reporter, and could thereafter require him to take down the charge, according to the recollection of the Judge as to its contents, it would introduce into the proceeding the very element of uncertainty which it was the purpose of the statute to prevent. Nor can the practice pursued in this case be supported under sec. 1138 of the Penal