Opinion
No. A-165.
Denied January 5, 1911.
(Syllabus by the Court.)
INSTRUCTIONS — Requests and Objections — Record. When the evidence in a criminal case is concluded the judge should give counsel for the state and counsel for the defendant an opportunity to submit any written instructions which they may desire to be given to the jury, and should also give counsel an opportunity to be heard, either in support of or in opposition to instructions to be given to the jury; and the court should require counsel for the defendant, upon such hearing, to point out what objections, if any, they have to the instructions given to the jury, and these objections should be incorporated in the record.
Counsel for the appellant, on motion for rehearing, insist that the instructions in this case were properly excepted to, and they refer to the case-made for the verification of this statement.
After the court had given its charge to the jury, counsel for the defendant stated in open court: "The defendant desires to except to each and every paragraph of the court's instructions to the jury." It is true that, in the case of Frank Buck v. Territory, 1 Okla. Cr. 517, this court did consider similar exceptions to the instructions given, but upon more mature reflection we are satisfied that we were in error in this particular. The action of the court in considering Buck's case could not have operated to the injury of appellant in this case, because that case was not decided by this court until the 11th day of January, 1909, while the exceptions which are presented here were taken by the defendant on the 17th day of October, 1908, nearly three months before the rendition of the opinion in the Buck case. We think that paragraph 5 of section 6823 of Snyder's Comp. Laws of Okla. 1909, is decisive of this question. Said paragraph is as follows:
"When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions. If the questions of law involved in the instructions are to be argued, the court shall direct the jury to withdraw during the argument, and after the argument, must settle the instructions, and may give or refuse any instructions asked, or may modify the same as he deems the law to be. Instructions refused shall be marked in writing by the judge, if modified, modification shall be shown in the instructions, and by refusal to give instructions, or the modification thereof, shall be deemed to be excepted to. When the instructions are thus settled, the jury, if sent out, shall be recalled and the court shall thereupon read the instructions to the jury."
This section clearly contemplates that instructions to juries in criminal cases should be settled before they are read to the jury, and that if counsel have any instructions which they desire to be given, or if they have any objections to any instructions proposed to be given by the court, it is the privilege and duty of counsel to point out such matters to the court before the instructions are read to the jury. Counsel for the defense have the right to be heard in the trial court upon the law as well as upon the facts. This is fair to all parties concerned, and is necessary to the proper administration of justice. It gives the judge an opportunity to correct any errors which he may have made, and it gives the county attorney an opportunity, if he thinks the charge of the court is erroneous, to join with the defendant in requesting that such error be corrected. If counsel desire to make objections to the instructions which the court proposes to give to the jury and requests permission to do so, it would be error on the part of the trial court to refuse to give counsel such opportunity; but in the absence of any such request appearing in the record in this case, we are of the opinion that the exceptions attempted to be taken by counsel for the defendant are altogether insufficient. The instructions given are not above criticism, but in the light of the evidence they are not such as should work a reversal of the verdict. The evidence in the case would support a verdict for murder, and we think that the appellant should congratulate himself upon the zeal and ability of his counsel in securing a verdict of manslaughter with the lowest possible punishment.
The motion for rehearing is therefore denied.