Opinion
Appeal from the County Court, Santa Clara County.
COUNSEL:
B. B. Kingsbury, for Appellant.
J. G. McCullough, Attorney-General, for Respondent.
JUDGES: Rhodes, J.
OPINION
RHODES, Judge
The defendant was indicted for an assault with the intent to commit murder. After the jury had retired to consider of their verdict, they were returned into Court, at their request, for further instructions, and the Court gave them oral instructions in explanation of the instructions previously given. The defendant was present, but neither consented nor objected thereto. The District Attorney was not present. The defendant now assigns for error, the giving of the instructions orally.
It is provided, in section three hundred and sixty-two of the Criminal Practice Act, that the charge to the jury " 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 mutual consent of the parties." This provision has been repeatedly held to be mandatory. The cases are numerous and uniform to the point that the giving of an oral charge or instruction to the jury, in a criminal case, without the consent of the defendant, is error, and that his consent cannot be presumed from his presence and failure to make the objection, when the oral instruction is given. (People v. Payne , 8 Cal. 341-344; People v. Demint , 8 Cal. 423; People v. Ah Fong , 12 Cal. 345; People v. Woppner , 14 Cal. 437.)
Judgment reversed and the cause remanded for a new trial.