Territory of Arizona v. Duffield , 1 Ariz. 58 ( 1872 )

By Court,

Reavis, J.:

This cause was brought into this court on appeal from the district court of Pima county. There are numerous errors complained of on behalf appellant;but we do not feel called upon, nor do we deem it necessary, to examine more than the two following points, urged by counsel for appellant, a proper solution of which, in our judgment, will dispose of this whole matter:

First, it is claimed that the indictment in this cause in the court below contains two separate and distinct charges; and second, that the court erred in delivering an oral charge to a jury when the same should have been in writing, the defendant not having waived his right to have it so given.

There are two counts in the indictment, and the record shows that the jury returned a verdict of guilty as charged in both.

The first charges the defendant with an offense against public justice, to wit, in resisting the sheriff of Pima county in attempting to execute a lawful order of the judge of the district court for said county, issued while sitting in the capacity of a committing magistrate, and directed to such sheriff for execution. Sec. 94, Criminal Code.

The second charges an offense against the person of an individual, that is to say, with an assault with a deadly weapon upon the person of said sheriff, with intent to put him in fear, and by fear to compel such sheriff to obey an unlawful command of said defendant. Sec. 50, Criminal Code.

We have no doubt of the erroneous joinder of those two offenses in the same indictment. Section 217 of our criminal code provides that “the indictment shall charge but one offense, but it may set forth that offense in different forms under different counts. ” In the case before us, it can not be claimed, as we think, with any kind of propriety, that the same offense has been set forth in different forms in the several counts therein contained. The offenses are wholly dissimilar, and can have no possible connection. The first is a crime against the public justice of the country, without reference to the person of the officer; while the second is a crime against the person of an individual, without reference to his official character. The other point to which our attention is directed is one of the gravest importance, and demands careful and serious consideration. The criminal code, sec. 368 of the compiled laws, requires the judge in all criminal cases to give his instruction to the jury in writing, unless its being so given shall be expressly waived by the defendant in each particular case in open court. How does the fact stand in this case ? The record shows that the presiding judge below charged the jury orally, and that on the day following the return of the verdict, he filed with the clerk a manuscript purporting to be the charge he had given the jury the day before. Was this a substantial compliance with the statute ? We think not. In the case of the People v. Ah Fong, 12 Cal. 345, the supreme court held, that “the fact that the judge told the counsel he would put the instruction in writing if desired does not help the error.” This was after the charge was given. The mischief intended to be prevented by the act might have been partly done. The court further remarked in that case: “In such trials the exact ^language used is ofjj"orgotten or differently understood by different persons; and in the press of business, •with his attention diverted to various matters, it is next to impossible for a judge to remember days after the trial precisely what occurred during its progress.” The same principle was decided in People v. O’Hara, by that court during the same term. It is true that the language of the statute under which the decisions referred to were made, is not identical with that o£ the statute of this territory on the same subject; yet we are of the opinion that the spirit and intent of the two acts are for all the purposes of justice substantially the same in effect. When the charge of the court to the jury in a criminal case is required to be given in writing, the presiding judge must first reduce it to writing and deliver its contents to the jury by reading in their hearing from the original manuscript. And it is no answer that the charge of tb£© court was in writing at the time of its delivery to the jury when the judge gives orally from his recollection what purports to be the contents of the written charge. The jury in that case would be left wholly dependent upon the memory of the judge for the accuracy of his statements, however widely they might differ from those he had reduced to writing, and which, when filed, the law makes a part of the record.

The true point of inquiry is, What did the judge charge ?

The defendant in a criminal case has an undoubted right to hear every word uttered by the judge to the jury, written at large in the record, and a failure to do so when required, touching the charge to the jury, as the law directs, is error.

The substantial requirements of the law in the particulars mentioned, not having been complied with, on the trial of this cause in the court below, the judgment must be reversed; and as we are of opinion that no valid conviction can be had upon the indictment herein, no new trial will be ordered.

It is therefore directed that the bail of appellant herein be and it is hereby exonerated, and the cause remanded for such further proceedings as shall be necessary and proper according to law.

Tweed, J., concurred.