There is no mandatory statute in this state requiring that in all instances instructions to juries shall be in writing. The language of the law is:
"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." (Wilson's Rev. Ann. St. 1903, § 5484, par. 6.)
The presumption of law is that all proceedings in courts of record are regular. The burden is on the party who questions this *Page 286 regularity to show clearly that irregularity exists. The statute having in express terms provided that written instructions may be waived, in cases where the instructions have not been reduced to writing, the presumption will be that written instructions were waived unless the record affirmatively shows to the contrary. Counsel for defendant in their petition for a rehearing say:
"Sections 5518 and 5525 (Wilson's Rev. Ann. St. 1903), which, at least impliedly, command instructions in criminal caused to be reduced to writing, if they do not require them to be given in writing."
Section 5518, Wilson's Okla. Rev. Ann. St., is as follows:
"In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the indorsement or answer, what part of each charge was given and what part refused."
The court must state to the jury all matters of law which it thinks necessary for their information, and if the court states the testimony of the case, it must, in addition thereto, inform the jury that they are the exclusive judges of all questions of fact. There is no express or implied command here that the instructions must be reduced to writing. The rest of the statute relates to written instructions, which may or may not be requested by the defendant. There is no claim made that any such written instructions were requested by the defendant in this case. Therefore this statute is not material to the question now before us.
Section 5525, Wilson's Okla. Rev. Ann. St., relied upon by counsel for the defendant, is as follows:
"On retiring for deliberation the jury may take with them the written instructions given by the court; the forms of verdict approved by the court, and all papers which have been received as *Page 287 evidence in the cause, or copies of such parts of public records or private documents as ought not, in the opinion of the court, to be taken from the person having them in possession."
So it is seen that this statute is merely permissive. We cannot agree with the contention of counsel for the defendant that these two sections of the statute by implication require that instructions given shall be reduced to writing. It is an old proverb of universal acceptance that "Actions speak louder than words," and when oral instructions are given to a jury, and the defendant does not object and save an exception, he thereby waives his right to have such instructions reduced to writing, and cannot afterwards be heard to complain that such instructions were not in writing. As the giving of instructions in writing may be waived it cannot be said that the failure of the court to reduce the instructions to writing affects the jurisdiction of the court, or goes to the foundation of the case, and such failure does not constitute fundamental error.
Rehearing denied.