State v. Stoller ( 1945 )

I concur in the result.

I have some doubt whether Sec. 105-33-3, U.C.A. 1943, applies to the case where oral instructions through stipulation are later presented in writing to the jury at its request. The jury is not informed on any point of law in regard to which it was not informed in the presence of the defendant and his counsel. It is simply given the same instruction in writing which was given to it orally. The stipulation that the court might give oral instructions was not to withhold from the jury a better opportunity to consider the law applicable but for the purpose of expediting the trial. The parties had opportunity to take their exceptions. The stipulation is a waiver of the requirement that the jury must be instructed in writing. It is not meant to substitute a requirement that the instructions must be given orally. The stipulation in effect gives the court a choice whether it will give oral or written instructions, a choice it would not have if the parties did not stipulate. See State v.Aikers, 87 Utah 507, 51 P.2d 1052.

WADE, J., concurs in the opinion and also in the views expressed by Mr. Justice WOLFE.