State v. Bennington

Decision Date08 November 1890
Citation25 P. 91,44 Kan. 583
CourtKansas Supreme Court

Appeal from Barber District Court.

THE opinion states the case.

Judgment reversed.

E Sample, and Chester I. Long, for appellant.

L. B Kellogg, attorney general, for The State.

STRANG C. All the Justices concurring.



This is an appeal from the judgment of the district court of Barber county. The appellant, who was there charged with grand larceny, was tried, convicted, and sentenced to three years in the penitentiary. He appeals to this court, and says the court below committed error in the trial of his case by giving a portion of its instructions to the jury orally. The bill of exceptions shows that the court gave some of its instructions to the jury in writing, and some of them orally, which latter were taken down at the time by the stenographer, and afterward copied and delivered to the jury on retiring, with the other instructions. Is this method of instructing a jury a compliance with § 236, criminal code, P 5304, General Statutes of 1889? We think not. Paragraph 5304, so far as it relates to this question, reads as follows: "The judge must charge the jury in writing, and the charge shall be filed among the papers in the cause."

The requirement of the statute seems to be imperative, and there is no reason why it should not be followed. It is argued by the attorney general that so far as this case is concerned, the statute was substantially complied with, because the portions of the charge which were given to the jury orally, were taken down by the stenographer and afterward copied and delivered to the jury with the other instructions, before they retired to consider the case. The bill of exceptions shows that the portions of the charge given orally and afterward copied and delivered to the jury, were copied and delivered to the jury as they were about to retire. What purpose had the legislature in view in requiring the judge to charge the jury in writing? We think the legislature required the charge of the trial court to be given in writing and filed among the papers in the case for the following, among perhaps other reasons:

First, to preserve the instructions for use in appeals to this court, so as to facilitate the making of a correct and satisfactory bill of exceptions. Every one knows how difficult, if not impossible, it is for the judge himself to remember the exact language of his charge when, some time after the trial, a bill of exceptions is sought to be made, and that a change of a few words, or a slight change in the phraseology, might give to the charge a different color and meaning and thus deprive the accused of his right to have the exact charge of the trial court reviewed in this court.

Second, that the jury may have the instructions of the court, which are, so far as they are concerned, the law of the case, with them in the jury-room, that they may refer to them, and thus settle among themselves any misapprehension of the language of the court, or difference of opinion, or want of recollection as to what the instructions were.

Third, that the attorneys trying the cause may have the instructions in that form so that they may, with greater facility and accuracy, apply the law to the facts in their arguments to the jury.

That this latter object was considered of some importance by the legislature, is evidenced by the fact that in P 5295, General Statutes of 1889, that body, in regulating the order of trial, provides that the court shall charge the jury before the counsel argue the case, changing the old rule in that regard. This change of the order of trial from the old rule under which the instructions of the court were given to the jury after counsel had argued the case, was not without a purpose, and the object was to aid the counsel in the presentation of the case to the jury. Thus it will be seen that the...

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11 cases
  • State v. Hathaway
    • United States
    • Kansas Supreme Court
    • April 11, 1936
    ...code provides that the court 'must charge the jury in writing'; and it is error to omit to do so in any criminal case." In State v. Bennington, 44 Kan. 583, 25 P. 91, was a case of grand larceny, the trial court gave some instructions in writing and some of them orally; the latter being tak......
  • Burnett v. State
    • United States
    • Arkansas Supreme Court
    • April 30, 1904 stenographic characters are not a compliance with § 23, art. 7, of the constitution. 52 L. R. A. 856; 76 Ind. 374; 21 Col. 272; 44 Kan. 583; 95 Ga. The court's charge upon the facts invaded the province of the jury. 70 Ark. 319; 69 S.W. 621; 92 N.W. 40; 70 S.W. 272; 93 N.W. 819; 70 S.W. ......
  • State v. Myers
    • United States
    • North Dakota Supreme Court
    • May 24, 1945
    ... ... is a violation of the law, is generally held to be error per ... se, and cannot be said to be harmless error. State v. Porter, ... 35 La.Ann. 535; People v. Sanford, 43 Cal. 29; State v ... Cooper, 45 Mo. 64; State v. Bennington, 44 Kan. 583, 25 P ... 91; State v. Harding, 81 Iowa 599, 47 N.W. 877; Train v ... Sisti, 146 Misc. 362, 262 N.Y. 167, 175-176; State v. Fisher, ... 23 Mont. 504, 59 P. 903; 2 Thomp. Trials, 2d ed., Sec. 2375; ... State v. Mitchell, supra; Clark v. State, 138 Tex.Cr.App ... [19 N.W.2d 29] ... ...
  • State v. Armstrong
    • United States
    • Oregon Supreme Court
    • October 19, 1903
    ... ... obedience to law, the better." The precept is enunciated ... and supported by numerous authorities. Wheatley & Co. v ... West, 61 Ga. 401; Willis v. The State, 89 Ga ... 188, 15 P. 32; State v. Bennington, 44 Kan. 583, 25 ... P. 91; State v. Stoffel, 48 Kan. 364, 29 P. 685; ... Ellis v. The People, 159 Ill. 337, 42 N.E. 873; ... State v. Birmingham, 74 Iowa, 407, 38 N.W. 121; ... State v. Harding, 81 Iowa, 599, 47 N.W. 877; ... Hopt v. Utah, 104 U.S. 631, 26 ... ...
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