By the Utah Code of Criminal Procedure of 1878, the charge of the court to the jury 'must be reduced to writing before it is given, unless by mutual consent of the parties it is given orally.' Section 257, cl. 7. Within five days after judgment upon a conviction, the clerk must annex together and file the papers necessary to constitute the record, including '(4) a copy of the minutes of trial; (5) a copy of the minutes of the judgment; (6) the bill of exceptions, if there be one; (7) the written charges asked of the court and refused, if there be any; (8) a copy of all charges given and of the indorsements thereon.' Section 339. The defendant may either take exceptions to the instructions of the court to the jury in matter of law at the trial of an indictment; or he may, without a bill of exceptions, appeal from a final judgment of conviction, on any question of law presented by written charges requested, given, or refused, or any other question of law appearing on the record. Sections 309, 315, 358, 360. The manner of taking an appeal is by filing a notice with the clerk of the court in which the judgment is entered, and serving a copy thereof upon the attorney of the adverse party. Section 363.
The statute expressly and peremptorily requires that the charge of the court to the jury shall be reduced to riting before it is given, unless by mutual consent of the parties it is given orally; and, as has already been adjudged by this court in this case, the giving, without the defendant's consent, of any oral charge or instruction to the jury, is an error, for which judgment must be reversed. 104 U.S. 631. The requirement of the statute that the clerk of the court in which the trial is had shall include, in making up its record, a copy of all written charges, as well as of the minutes of the trial, is equally positive. The object of these provisions, requiring the instructions to be in writing and recorded, is to secure an accurate and authentic report of the instructions, and to insure to the defendant the means of having them revised in an appellate court. When the record shows that the jury were charged by the court, nothing can excuse the omission to set forth in the record a charge in writing, except express consent of the defendant that it should be given orally, and that consent must appear of record. The record must either set forth the charge in writing, or a waiver by the defendant of such a charge. If it does neither, it fails to show what is made by express statute an essential requisite to the validity of the conviction, and contains upon its face a fatal error, of which the defendant may avail himself by appeal, without tendering a bill of exceptions.
The duty of making up a complete record is the duty of the clerk; and the duty of seeing that the record contains everything that actually took place, necessary to support the conviction, is the duty of the district attorney. If the copy of the record made up by the clerk of the district court, and entered by the defendant in the supreme court of the territory, was defective in a material point, the district attorney might have moved in the latter court to have the defect supplied by certiorari or other proper process. The defendant and his counsel were under no obligation to cure, and cannot be held to have waived, any defect in the record, but were entitled to take advantage, either in the supreme court of the territory or in this court, of any error apparent upon the record as it stood in that court. Applying these principles to the record before us, the conviction cannot be supported. The record merely states that the court charged the jury, and does not state whether the charge was written or oral. If the charge was written, it should have been made part of the record, which has not been done. If it was oral, the consent of the defendant was necessary, and that consent does not appear of record, and cannot be presumed.
It is hardly necessary to add that the affidavit taken since the entry of the case in this court cannot be considered. The lawfulness of the conviction and sentence of the defendant is to be determined by the formal record, made up and transmitted as required by law, of what was done in his presence at the trial in open court; and not by ex parte affidavits of private conversations supposed to have afterwards taken place in his absence between the counsel and the clerk.
Judgment reversed, and case remanded, with directions to order the verdict to be set aside and a new trial granted.
WAITE, C. J., and HARLAN, J., dissented.
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