Mack

Defendant was convicted by a jury of the crime of assault with a deadly weapon. He appeals from the judgment and from an order of the trial court denying his motion for a new trial.

Appellant contends that the court committed prejudicial error in permitting the witness Clayburn to testify, for the reason that said witness had remained in the courtroom during the progress of the trial after the court had made an order excluding all witnesses from the courtroom. There is no merit in this contention. The disobedience of the court’s order to remain outside the courtroom during the progress of the trial might well have subjected the witness to punishment for contempt of court, but it is no ground for rejecting his testimony. (See People v. Boscovitch, 20 Cal. 436 ; 27 Cal. Jur. 64.)

Appellant also claims the court instructed the jury orally without the consent of the defendant. The statute authorizes such instructions to be given to the jury in a criminal case, if taken down by the phonographic reporter. (Sec. 1093, subd. 6, Pen. Code; People v. Bourke, 66 Cal. 456 [ 6 Pac. 89 ]; People v. Wheatley, 88 Cal. 114 [ 26 Pac. 95 ]; People v. Leary, 105 Cal. 486 [ 39 Pac. 24 ].)

To avoid…