AILSHIE, C. J.
The defendant was convicted of the crime of rape, and sentenced to a term of ten years in the state penitentiary, and has appealed, and presents his case in this court upon the record of conviction commonly designated the judgment-roll. The first two assignments of error are general ones, and call for no specific consideration here. The third, fourth and fifth assignments of error cover, in fact, all the grounds of complaint presented by appellant, and are sufficiently specific to require our special attention. The third and fourth will be considered together. The record in this ease was certified up to this court under section 8051, Revised Statutes, and appears to contain the entire record as defined and required by section 7996, Revised Statutes. The record as presented to this court does not show [92] that the appellant was informed by the court, or anyone under the court’s direction, of his right to challenge an individual juror, and that he should do so before the jury was sworn. Further, it does not show that during the course of the trial the court admonished the jury from'time to time upon the taking of an adjournment that they should not converse one with the other or with any third parties, or form or express any opinion on the case until it was finally submitted to them. Both these assignments of error may be disposed of in the same manner. In the first place, the record as defined by section 7996, Revised Statutes, is not required to show these facts; it is sufficient if the facts actually exist. All the presumptions are in favor of the regularity of the proceedings of courts of record. In the absence of any showing to establish the fact whether the court did or did not comply with these requirements of law, the presumption of law will at once arise that the court complied therewith and discharged every duty the statute imposed upon it in the trial of the case. And since the statute does not require these facts to be incorporated in the record as prescribed and defined by section 7996, supra, it was the duty of the defendant, if the court in fact failed to comply with the law in these respects, and the defendant felt aggrieved over the court’s action, to take exception thereto and incorporate the same in a. bill of exceptions and present it to this court on appeal. His failure to do so was a waiver of any objection that he might have had, and leaves the presumptions all against him and in favor of the regularity of the proceedings leading up to and including his conviction and sentence. In People v. Waters, 1 Idaho, 560, it was said: “This court cannot presume that anything was omitted to be done by the court below that the law requires to be done to insure a fair trial, but must presume in the absence of any showing to the contrary by .the defendant that everything necessary to be done was done.” And again, in People v. Ah Hop, 1 Idaho, 698, it was said: “The presumptions are in favor of the regularity of the proceedings in the district courts in criminal as well as in civil cases.” To the [93] same effect, see People v. Mortier, 58 Cal. 266; People v. Elsworth, 92 Cal. 594, 28 Pac. 604. Counsel for appellant cite People v. Gaines, 52 Cal. 479, with apparently great confidence, in support of the proposition that the record must affirmatively show that all the requirements of the statute were complied with in a criminal case, and that in the absence of such a showing it will be assumed that the requirements of law were not complied with. That was a case where the record failed to disclose that the defendant had ever been arraigned or had entered any plea. The court held that since the statute required that “every plea must be oral and entered upon the minutes of the court in substantially the following form,” etc. (the same as section 7756, Revised Statutes), and" also required that the record should contain “a copy of the minutes of the trial” (same as section 7996, Revised Statutes), a failure of the record to show these facts would carry with it a presumption that they never occurred. It was held that the state, in order to sustain the conviction, would be required to furnish a record disclosing a compliance with the statute in these respects. We have no fault to .find with this authority, but that case is not a parallel with the case at bar. Here the'facts that appellant complains of the record not showing are not required to be contained in the record on an appeal from the judgment.
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AILSHIE, C. J.
The defendant was convicted of the crime of rape, and sentenced to a term of ten years in the state penitentiary, and has appealed, and presents his case in this court upon the record of conviction commonly designated the judgment-roll. The first two assignments of error are general ones, and call for no specific consideration here. The third, fourth and fifth assignments of error cover, in fact, all the grounds of complaint presented by appellant, and are sufficiently specific to require our special attention. The third and fourth will be considered together. The record in this ease was certified up to this court under section 8051, Revised Statutes, and appears to contain the entire record as defined and required by section 7996, Revised Statutes. The record as presented to this court does not show [92] that the appellant was informed by the court, or anyone under the court’s direction, of his right to challenge an individual juror, and that he should do so before the jury was sworn. Further, it does not show that during the course of the trial the court admonished the jury from'time to time upon the taking of an adjournment that they should not converse one with the other or with any third parties, or form or express any opinion on the case until it was finally submitted to them. Both these assignments of error may be disposed of in the same manner. In the first place, the record as defined by section 7996, Revised Statutes, is not required to show these facts; it is sufficient if the facts actually exist. All the presumptions are in favor of the regularity of the proceedings of courts of record. In the absence of any showing to establish the fact whether the court did or did not comply with these requirements of law, the presumption of law will at once arise that the court complied therewith and discharged every duty the statute imposed upon it in the trial of the case. And since the statute does not require these facts to be incorporated in the record as prescribed and defined by section 7996, supra, it was the duty of the defendant, if the court in fact failed to comply with the law in these respects, and the defendant felt aggrieved over the court’s action, to take exception thereto and incorporate the same in a. bill of exceptions and present it to this court on appeal. His failure to do so was a waiver of any objection that he might have had, and leaves the presumptions all against him and in favor of the regularity of the proceedings leading up to and including his conviction and sentence. In People v. Waters, 1 Idaho, 560, it was said: “This court cannot presume that anything was omitted to be done by the court below that the law requires to be done to insure a fair trial, but must presume in the absence of any showing to the contrary by .the defendant that everything necessary to be done was done.” And again, in People v. Ah Hop, 1 Idaho, 698, it was said: “The presumptions are in favor of the regularity of the proceedings in the district courts in criminal as well as in civil cases.” To the [93] same effect, see People v. Mortier, 58 Cal. 266; People v. Elsworth, 92 Cal. 594, 28 Pac. 604. Counsel for appellant cite People v. Gaines, 52 Cal. 479, with apparently great confidence, in support of the proposition that the record must affirmatively show that all the requirements of the statute were complied with in a criminal case, and that in the absence of such a showing it will be assumed that the requirements of law were not complied with. That was a case where the record failed to disclose that the defendant had ever been arraigned or had entered any plea. The court held that since the statute required that “every plea must be oral and entered upon the minutes of the court in substantially the following form,” etc. (the same as section 7756, Revised Statutes), and" also required that the record should contain “a copy of the minutes of the trial” (same as section 7996, Revised Statutes), a failure of the record to show these facts would carry with it a presumption that they never occurred. It was held that the state, in order to sustain the conviction, would be required to furnish a record disclosing a compliance with the statute in these respects. We have no fault to .find with this authority, but that case is not a parallel with the case at bar. Here the'facts that appellant complains of the record not showing are not required to be contained in the record on an appeal from the judgment.
The fifth and last assignment of error is that the court failed to give such instructions as were necessary and applicable to the case in order for the jury to properly understand the law concerning the crime of which defendant was charged. The attorney general, however, insists that since the defendant failed to except to any of the instructions given at the time of the trial, and failed to incorporate his exceptions in a bill of exceptions, that he cannot be heard at this time to complain. Section 7946, Revised Statutes, provides as follows: “When written charges have been presented, given, or refused, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges with the indorsements showing the action of the court form part of the record, and any error [94] in the decision of the court thereon may be taken advantage of on appeal in like manner as if presented in a bill of exceptions.” This section, it will be observed, has reference only to instructions requested by either the state or the defendant; such instructions are deemed to have been excepted to and become part of the judgment-roll, and may be presented without incorporating the objections in a bill of exceptions. Section 7940 provides that the defendant may take exceptions to the decision of the court “in charging or instructing the jury upon the law on a trial of the issue.” This section evidently has reference to the instructions given by the court on its own motion. Section 7996, Revised Statutes, which defines what shall constitute the record, among other things enumerates in subdivisions 7 and 8 the following: 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.” From an examination of the foregoing provisions of the statute, it would seem that all the instructions given and all the instructions requested become a part of the record, and under section 8051 must be transmitted to this court when an appeal is perfected. While the statute gives the defendant an exception to all instructions requested and all instructions given upon the request of the state, it is still obligatory upon the defendant to except to any instruction given by the court on its own motion at the time that it is given, and if he fails to do so, he will be deemed to have waived any objection he had, and to have been satisfied with the instruction at the time it was given. In order, therefore, to present his objection on appeal, it is necessary to take exception and have the same settled in a bill of exceptions. Of course it is unnecessary to incorporate instructions in the bill of exceptions, as they are required to be sent up in the record anyway, but it is necessary to note the exception and in some proper manner identify the particular instruction to which defendant objects and excepts, and the objectionable portion thereof. This same question was considered in People v. Walter, 1 Idaho, 386, and People v. Biles, 2 Idaho, 114, 6 Pac. 120. In [95] each of these cases the court held to the same view above expressed; but the court also went to the extent of saying that the instructions should be incorporated in the bill of exceptions. We do not think that necessary if they are properly referred to or identified by the bill of exceptions; otherwise we are in accord with the views expressed in those eases. Notwithstanding the fact that the record in this ease is not presented in such manner as to require an examination of the instructions given by the court on his own motion, we have nevertheless examined them, and are satisfied that no error was committed against the defendant in the giving of instructions. The judgment must be affirmed, and it is so ordered.
Sullivan, J., concurs.