Page:Dakota Territory Reports Vol 4.djvu/435

 necessary, and the consent does not appear of record not be presumed." 114 U. S. 491, 5 Sup. Ct. Rep. 9

The case is clearly distinguishable from the one inference arises, from the neglect of the clerk to court in the judgment roll, that the judge charged o inference would not affect the rights of the defend our statute, unless it affirmatively appear that he rec judge to charge in writing, Our statute is the cour the Utah statute. It requires all charges to be in w less by mutual consent it be oral; ours permit all chi oral, unless, by request, it be reduced to writing, c down by the court stenographer. All reasonable pre are in favor of the judgment. The presumption it statute was complied with; and if the presumption in absence of any charge found in the judgment judge charged orally, the presumption would also I absease of any request found in the record, that was made by the defendant to the judge to reduce his writing. Our statute is a peculiar one. It is founde California statute, which was adopted in Utah withou the section we are now considering. The original was that "such charge must be reduced to writing given, unless by mutual consent of the parties i orally." Our codifers changed tWs part of the secti read: "Such charge must, if so requested, be reduce ing before it is given, unless by tacit or mutual co given orally, or unless it is fully taken down at the given by a stenographic reporter appointed by the c

It will be observed that three important changes made in the original statute: (1) By inserting the so requested;" (2) by inserting the word "tacit;" and serting the clause as to taking down the charge by a pher. These changes were intentional. The codi have had the Utah or California section before them, they used these significant words, in the peculiai which they are found, they must have intended them the particular clauses with which they were used in c