Page:Dakota Territory Reports Vol 4.djvu/433

 together and file the following papers, which constitute a record of the action: (1) The indictment and copy of the minutes of the plea or demurrer; (2) a copy of the minutes of the trial; (3) the charges given or refused, and the endorsements, if any, thereon; and (4) a copy of the judgment."

Section 343 of the same code, among other things, provides: "The judge must then charge the jury He may state the testimony, and must declare the law, but must not charge the jury in respect to matters of fact. Such charge must, if so requested be reduced to writing before it is given, unless by tacit or mutual consent, it is given orally, or unless it was fully taken down at the time it was given by a stenographic reporter appointed by the court."

From this section it appears that the judge is not required to charge the jury in writing unless he be requested to do so by the defendant, and that in any criminal case he may charge the jury orally, if it be fully taken down by the court stenographer.

It is contended, however, that this section is modified by Section 248 of the Code of Civil Procedure, which reads as follows: "The court, in charging the jury, shall only instruct as to the law of the case; and no judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing; and, when instructions are asked which the judge cannot give, he shall write on the margin thereof the word 'refused,' and such as he approves be shall write on the margin thereof the word 'given;' and he shall, in no case, after instructions are given, qualify, modify, or in any manner explain the same to the jury otherwise than in writing; and all instructions asked for by counsel shall be given or refused by the judge without modification or change, unless such modification or change be consented to by the counsel asking the same."

It is true that Section 248 of the Code of Civil Procedure does provide that "no judge shall instruct the petit jury in any ease, civil or criminal, unless such instructions are reduced to writing," and, if such section is to be construed to mean that such instructions are to be reduced to writing before the jury