Swaggart v. Territory

Opinion of the court by McAtee, J.: The case is brought here upon assignment of error, (1) that the court erred in overruling the motion to quash the indictment, and (2) in overruling the objection of the defendant to the introduction of testimony, and (3) in giving oral instructions to the jury without the consent of the defendant, and (4) in giving subsequent oral instructions to the jury, after the jury had returned for their deliberation, and being called into open court without the consent of the defendant. *346 Upon the first assignment of error, no defect in the indictment is pointed out in the brief of the plaintiff in error, nor is there any. The indictment is in proper form in all respects, charging, as it does, that the defendant unlawfully, willingly and knowingly allowed and permitted a building, (describing the building) which he owned and controlled, to be used as a place for persons to visit for the purpose of unlawful sexual intercourse. The indictment is upon a statute which declares that, every person who lets any building or portion of any building, knowing that it is intended to be used for any purpose declared punishable by this chapter, or who otherwise permits any building or portion of building to be so used, is guilty of a misdemeanor. Among the purposes declared punishable by the chapter are the keeping of “any other house or place for persons, to visit for unlawful sexual intercourse.” The second assignment of error is overruled upon the same ground. No suggestion being offered in support of it, except the insufficiency of the indictment. Upon the third assignment of error, that the court erred in giving oral instructions to the jury without the consent of the defendant, the Statutes of 1893 provide, sec. 5196, paragraph 6, that: “All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the case.” The question has been repeatedly passed upon by the supreme court of California upon a statute which provides, that: “Such charge shall be reduced to writing, or instruction be given to the jury, otherwise than in writing, unless by the mutual consent of the parties.” *347 Upon this statute it was said in People v. Beder, 6 California 246, that: “The rule prescribed by the statute is mandatory and not directory.” The judgment was reversed because the statute was not observed by the court below. In People v. Payne, 8 Cal. 341, an instruction had been given in writing, but a verbal qualification had been added, and the judgment was reversed. In People v. Demint, 8 Cal. 423, the judgment was reversed upon the sole ground of non-compliance with the statute in respect to reducing the charge of the court to writing, before it was given to the jury. In People v. Ah Fong, 12 Cal. 345, the judgment was reversed here on the same ground, Baldwin, J., delivering a somewhat elaborate opinion to the effect that a charge given, not in writing at the time, amounts, per se, to an error for which the judgment will be reversed, and that an offer to reduce it to writing after it had been given, would not cure the error. In People v. Shaw, 26 Cal. 78, a written charge had been delivered, and the jury had retired; they subsequently came in and were orally instructed by the court in explanation of the charge already given in writing — the defendant neither consenting or objecting to the oral explantion. The judgment was reversed, the court saying: “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 in 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. Sanford, 43 Cal. 35.) And this view will be adopted here. *348 The defendant was present in court in person and by liis counsel while the jury was being instructed. No objection was made at the time and no exceptions reserved. No error has been pointed out in the instructions. They contained a correct statement of the law as applied to the facts produced in evidence. They were taken by the court stenographer, reduced immediately to writing and appear in the record for review. The error was in this case immaterial, and must have been so considered by the defendant and his counsel at the time, and the case will be regarded as one of those in which the substantial rights of defendant were not affected, and the judgment will not be reversed here. (Sec. 5330 Statutes of 1893.) Tarsney, J., having presided in the court below, not sitting; Dale, C. J., and Bierer, J., concurring; Keaton, J., dissenting.