United States v. Gough
Decision Date | 20 March 1893 |
Citation | 8 Utah 428,32 P. 695 |
Court | Utah Supreme Court |
Parties | UNITED STATES, RESPONDENT, v. JOSIAH GOUGH, APPELLANT |
APPEAL from a judgment of conviction and from an order theretofore made refusing a new trial of the district court of the first district. The opinion states the facts.
Affirmed.
Messrs Dudley and Woods, for the appellant.
In California, under similar code provision, oral charges without express consent of defendant is ground of reversal as the statute requiring the charge is mandatory. The People v. Beeler, 6 Cal. 246; People v. Payne, 8 Cal. 341; People v. Demont, 8 Cal. 423; People v. Ah Fong, 12 Cal. 346; People v. Woppner, 14 Cal. 437; People v. Antonio Chares, 26 Cal. 79; People v. Trim, 37 Cal. 274; People v Sanford, 43 Cal. 29; People v. Prospero, 44 Cal. 186; People v. Max, 45 Cal. 254; People v. Hersey, 53 Cal. 574. Section 1093 of the penal code of California is the same as subdivision 6 of § 5033 of criminal code of Utah, and said § 1093 is held to be mandatory in the case of People v. Hersey, 53 Cal. 574. Consent to oral charge is not presumed from failure to object. People v. Antonio Chares, 26 Cal. 79; People v. Trim, 37 Cal. 274; People v. Sanford, 43 Cal, 29; People v. Prospero, 44 Cal. 186. Oral instruction in absence of reporter is error per se. People v. Hersey, 53 Cal. 574.
Mr. Charles S. Varian, U.S. Attorney, for the respondent.
The defendant was accused of the crime of adultery, and a jury found him guilty. He appealed from the order of the court overruling his motion for a new trial, and from the judgment on the verdict.
The court gave an oral charge to the jury which was not taken down by a reporter, and this defendant assigns as error. The last clause of § 5033, Comp. Laws Utah, 1888, is as follows: "If the charge be not given in writing, it must be taken down by the phonographic reporter." It appears from the record that the defendant and his counsel were present when the charge was given, and it does not appear that the attention of the court was called to the omission now complained of, or that any objection was made or exception taken. It does appear that counsel for the defendant first called the attention of the court to the fact that its charge had not been taken down two or three days after the trial, upon his motion for a new trial. If objection had been made to the oversight when it occurred the court would have reduced the charge to writing, or would have ordered it taken down by the stenographic reporter. In the case of Gibson v. State, (Fla.) 26 Fla 109, 7 So. 376, the court said: With respect to an alleged error in the selection of the jury, in the case of Alexander v. U.S., 138 U.S. 353, 11 S.Ct. 350, 34 L.Ed....
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