Page:Dakota Territory Reports Vol 4.djvu/437

 clause, as to taking the charge by the court stenographer. This clause is introduced by the same words, "or unless," etc.; clearly indicating that it is intended to qualify the firs( clause, and to make the section to mean that, in case the defendant requested the charge to be reduced to writing, it would be sufficient reason for not doing so if either there was a subsequent tacit or mutual consent to an oral charge, or the charge was taken down by a court stenographer.

It follows from this construction that it is the duty of the defendant, if he desired the charge to be first reduced to writing, to make the request; and that, after he has made such request, the court can only be excused from reducing his charge to writing by the tacit or mutual consent of the defendant, or by having the charge taken down by a court stenographer. This affirmative action is cast upon the defendant, to make the request, and the record must show such request before the record would be required to show a consent or a taking by the stenographer; and, in absence of both charge and request in the record, following the doctrine of Hopt v. U. S. supra, the inference would seem to be that such charge was oral, and that no such request was made; and it would seem that, if the record contained such a request, it should further contain the written charge or a statement of the fact that it was given orally by consent, or was taken down by the court stenographer. Section 446 of the Code of Criminal Procedure, which requires that the charge of the court shall be made a part of the judgment roll, must be construed, in connection with Section 343 of the same code, to mean that the charge when reduced to writing as provided for in that section, shall be attached to and made a part of the judgment roll. But if the view contended for by defendant's counsel, to-wit, that if the charge is taken by the stenographer, and cannot be appended immediately, it should be done without delay, be the correct one, it is difficult to see how such an omission by the clerk or stenographer could affect a judgment otherwise correct, and already rendered, perhaps, and entered. It would be, at most, a mere ministerial act, which he could compel the performance of, but which could