Childs v. State

216 P. 487 | Okla. Crim. App. | 1923

Plaintiff in error was convicted on a charge that he did have possession of two gallons of Choctaw beer, with intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined for 60 days in the county jail and to pay a fine of $100. From the judgment he appealed by filing in this court, on August 13, 1921, a petition in error with case-made. The Attorney General has filed the following confession of error:

"The record shows that the trial court, over the objection and exception of the counsel for defendant, persisted in orally instructing the jury and refused to have the instructions reduced to writing for the perusal and exceptions of the defendant, before the jury began its deliberations.

"Section 2687, subsec. 6, of the Compiled Oklahoma Statutes, 1921, provides in part as follows:

"`All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the case.'

"This statute is an old one and was construed in the case of Swaggart v. Terr., 6 Okla. Cr. 344, 50 P. 96, wherein the court held that a refusal to reduce the instructions to writing was reversible error; that counsel had the right to peruse the instructions and argue them to the court, presenting substitutes therefor, if he deems them proper; and that a refusal of the trial court to comply with the statute in the giving of instructions is error."

An examination of the record discloses that the confession of error is well taken. For the reason stated, the judgment is reversed.