Page:Dakota Territory Reports Vol 4.djvu/436

 and, giving to such words their usual and ordinary meaning, we must come to the conclusion, as already announced in reference to the words "if so requested," that they were intended to limit and control the sentence or clause between the words of which they are inserted, to make the sentence read and mean that, if the defendant so request, the charge must be reduced to writing before it is given, and that, if he do not so request, it need not be reduced to writing before it is given.

We have no difficulty with the construction of the section so far, and, but for the insertion of the word **tacit" in the next qualifying clause, there would seem to be no ambiguity in the amendments made. The words "unless by tacit and mutual consent it is given orally," may qualify the preceding clause very properly with the words, "if so requested," left out, but the effect of their qualification with those words in is not so apparent. But effect must be given to both amendments, if possible, and we must construe the latter amendment as made subsequent to the first, or as qualifiyingqualifying [sic] the preceding clause as it now exists; and we must then conclude that, by the "tacit and mutual consent," (that is, consent expressed by silence, or actual consent, expressed by both parties,) the charge need not be reduced to writing in the case provided for in the preceding clause as it reads, after the amendment is made by inserting the words, "if so requested." That is to say, it need not be reduced to writing "if so requested," if subsequent "tacit or mutual consent" be given to an oral charge. In other words, the first clause must have the full modifying force of the words "if so requested," which would require the defendant in every case to make the request. Otherwise the court would be authorized to charge orally; and this clause, modified by "tacit and mutual consent," would make the effect to be that, if there be a "tacit" or "mutual consent" to the oral charge, the court would not be required to reduce his charge to writing, even though the defendant had previously requested him to do so. This is the logical and only deduction that can fairly be drawn from the order and character of these amendments, and this construction is sustained by the succeeding and qualifying