Hersey

After the jury had retired to deliberate on their verdict, they returnee! into Court and propounded to the Judge certain questions as -to the law of the case, which were answered orally by the Judge, in the absence of the phonographic reporter, and without the consent of the defendant. At the close of the oral charge one of the jurors inquired of the Judge whether they were “ to go by the written instructions ”; to which the Judge orally replied: “Yes, sir; you are to go by the written instructions as to the law of this case, and by nothing else.” After the jury had again retired, and the phonographic reporter had *575 returned into Court, the Judge stated to the reporter his recollection of what had occurred, and it was then reduced to writing by the reporter. This action of the Court was excepted to by the defendant, and is relied upon as error.

Sec. 1093 of the Penal Code, as amended in 1874, and in force at the time of the trial, provides, in subd. 6, that “ if the charge be not given in writing it must be taken down by the phonographic reporter.” There can be no doubt that this provision was intended to be mandatory and not merely directory.

From an early period in the…