Ludwig

Defendant appeals from tbe judgment. He asks for a reversal upon tbe ground that tbe court orally instructed tbe jury, and tbat sueb instructions wben given were not taken down by the phonographic reporter as contemplated by section 1093 of tbe Penal Code.

If the facts are as contended for by appellant, be has shown reversible error, but be fails in establishing those facts. The minutes of the trial disclose that oral instructions were given to the jury, but we fail to find anything in the record showing that they were not taken down at the time by the phonographic reporter. the legal presumption is that such was the fact, and it is for the defendant to overthrow that presumption. (People v. Ferris, 56 Cal. 442 .) Defendant produces the judgment-roll, or more properly speaking, the record of the action, and this record contains no charge of the court to the jury. He argues that the instructions are made a part of the record of the action by section 1207 of the Penal Code, and that wben be produces the record of the action, properly certified, containing no instructions, it must be assumed that the charge was not taken down by the phonographic reporter. In People v. January, 77…