People v. O'Hara — 1 Cal. Unrep. 71

Majority

p. 71

PEOPLE, Respondent, v. J. P. O’HARA et al., Appellants.

No. 2295;

February 8, 1859.

Headnote

Criminal Law — Right of Defendant to Written Instructions.— The defendant in criminal eases enjoys a right by statute to have the court’s instructions in writing, to insure their preservation in authentic and accurate form.

Criminal Law — Waiver of Rights — Presumption.—There is, in criminal cases, no presumption to the effect that the defendant has waived a right; the reeord must show the waiver.

APPEAL from Sacramento County.

District Attorney for respondent; G. L. “Waters for appellants.

— In this case the instructions of the court were given orally, and within the case of People v. Demint, 8 Oal. 423, the court had no power to give such instructions. We are asked to review that decision. We think it correct. The right to have the instructions in writing, so as to preserve them in an authentic form, and to secure an entire accuracy of statement is given by the statute; and there is no presumption indulged in criminal cases that any right is waived. The record must show the waiver. We think the policy is good, and there can or ought to be no difficulty in the court or the district attorney’s seeing that the proper entry is made on the records whenever this right is waived.

The judgment is reversed and cause remanded.

We concur: Field, J.; Terry, O. J.