People v. Bourke (1885) · DecisionDepot

People v. Bourke

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Feb 25, 1885 No. No. 20,056Published

Before: Morrison

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Holding. The court affirmed the judgment because the defendant failed to provide the evidence or instructions necessary to demonstrate that the trial court erred in refusing a requested instruction or in delivering an oral charge.

Issues

Whether the trial court erred in refusing a requested instruction in the absence of the trial evidence.
Whether an oral charge to the jury constitutes error when the record does not affirmatively show it was not taken down by a phonographic reporter.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Unless there was some evidence in the case upon which the instruction asked was properly predicated, it was right in the court to refuse it.”

“The legal presumption is that that was done. It is for the defendant to overcome that presumption. He must affirmatively show error; the court will not presume it.”

Synopsis

flRTivTTN'AT, Law—Instructions—Refusal to Give when- Hot Ground for Reversal.—The action of the trial court in refusing to give an instruction requested by the defendant, the correctness of which depended upon the evidence, cannot be reviewed by the appellate court in the absence of the evidence and the instructions given.

Id—Oral Charge—Presumption.—Where the record on appeal is silent as to whether an oral charge given to the jury was taken down by the phonographic reporter, the legal presumption is that it was so taken down, and to overcome this presumption, the defendant must make an affirmative showing to the contrary.

Morrison, C. J. This case comes before us without any of the evidence given on the trial, and without any portion of the court’s charge to the jury, and we are asked to reverse the judgment on two grounds: first, because the court erred in refusing to give an instruction asked by the defendant, and secondly, because the court gave an oral charge to the jury.

The instruction requested was the following :

“Under this information, according as the evidence satisfies the jury, the following verdicts may be found:

1. Guilty of robbery.

2. Guilty of grand larceny.

3. Guilty of an attempt to commit robbery.

4. Guilty of an attempt to commit grand larceny.

5. Guilty of an assault with an intent to commit robbery.

6. Guilty of an assault with an intent to commit larceny.

7. Guilty of an assault.

8. Guilty of petit larceny.

9. Wot guilty.

The defendant was charged with the crime of robbery, and was found guilty of that crime.

But, as the evidence is not before us, we cannot say that the . instruction should have been given, even if it is the law. Unless there was some evidence in the case upon which the instruction asked was properly predicated, it was right in the court to refuse it. (People v. Sanchez, 24 Cal. 17; People v. Williams, 43 Cal. 344; People v. Strong, 46 Cal. 302.)

And it may be, that the instructions given fully covered all the points in the case which properly arose under the evidence. In the absence of the evidence and the instructions given, we are not able to say that there was error.

The transcript shows that the court gave an oral charge to the jury. It has been held in several cases that an oral charge without the consent of the defendant was error, but since those decisions were made the Penal Code has been amended. By section 1093 of the Penal Code, it is provided that “ if the charge be not given in writing, it must be taken down by the phonographic reporter.” It does not affirmatively appear in this case that the charge was not taken down by the phonographic reporter, and we are asked to presume that it was not, [457]

People v. Bourke

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