State v. Mitchell

193 N.W. 310, 49 N.D. 726, 1923 N.D. LEXIS 18

• Court: North Dakota Supreme Court
• Decided: April 21, 1923
• Status: Published

Opinion

Birdzell, J.

This is an appeal from a judgment convicting the defendant of keeping and maintaining a nuisance. A number of errors are assigned, but, inasmuch as the record clearly shows a mistrial in the matter of the instructions to the jury, it will not be necessary to refer to any of the other assignments.

The certified transcript contains the following:

“Counsel having finished argument to the jury, the attorney for the defendant being present at all times and making no objection or suggestion and the court overlooking the obtaining of consent to the giving of an oral charge, the following oral charge was given by the court to the jury.”

The giving of the oral charge is assigned as error. Section 10,822, Comp. Laws, 1913 reads:

“In charging the jury, the court shall only instruct as to the law of the case, and all instructions must first be reduced to writing, unless by consent of both parties entered in the minutes, the instructions arc given orally and taken down by the stenographer of the court, in shorthand.” . . .

This statute is clearly mandatory in its requirements that the instructions first be reduced to writing. The defendant on trial has a right to assume that the statute will be complied with and his silence can not be construed as consent. In the absence of inquiry it could not be known whether or not he was willing to assent to an oral charge being given. The court makes it clear in the transcript that such consent was not obtained. It follows that there was a mistrial and that the judgment must be reversed. See People v. Sanford, 43 Cal. 29; Gile v. People, 1 Colo. 60; State v. Potter, 15 Kan. 302; Hopt v. People, 104 H. S. 631, 26 L. ed. 873, 4 Am. Crim. Rep. 365; 2 Thomp. Trials, 2d. ed. § 2375.

Reversed and remanded for-a new trial.

Bronson, Ch. J., and Johnson, Christianson, and Nuessle, JJ., concur.