delivered the opinion of the Court—Field, J., concurring.
The defendant was convicted of murder. His counsel insist that *347there is error in the record of conviction, in this: That the Court charged the jury orally, without consent of the prisoner or his counsel. The charge is given in the statement of the Judge below, as he states, as nearly as can be remembered, and the Judge adds that he stated to the counsel that the charge would be given in writing, if required, and there was no expression of dissent, nor was there any exception taken by either party. The statute, for wise purposes, requires the charge of the Judge, in criminal cases, to be in writing. Every lawyer knows how difficult it is to obtain an exact account, in writing, of words spoken during a trial—especially a criminal trial. In such trials, the exact language used is often forgotten, or differently understood by different persons; and, in the press of business, with his attention diverted to various matters, it is next to impossible for a Judge to remember, days after the trial, precisely what occurred during its progress. And yet, in such cases, the life of the prisoner may depend upon a single word or syllable, omitted or added. It will not do to say that the instruction, as given, could do no harm, whether given in writing or orally; for the very point of inquiry is, what did the Judge charge ? The error is in not putting the instruction in such a shape as that the prisoner could certainly get the benefit of it, as the statute intended. If we assume that, whenever it is shown that the instruction was right, the prisoner cannot complain, it would result that the statute would be wholly inoperative and useless; for if the instruction as given, be wrong, the prisoner could avail himself of the error, whether the charge bo in writing or not. The principle of that case was decided in People v. O’Hara, at this term. We say in this case: 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 District Attorney’s seeing that the proper entry is made on the record, whenever this right is waived.”
The fact that the Judge told the counsel he would put the instruction in writing, if desired, does not help the error. This was after the charge was given. The mischief intended to be prevented by the act *348might have been partly done. The charge could not be orally given without the consent of the prisoner. He had given no such consent. He and his counsel were entitled to stand on their strict legal rights. They were not bound to assist in curing any errors of which they might avail themselves to defeat a conviction.
We presume, after the charge was given, they did not desire it to be in writing. The mere declination to insist on a right, in a criminal case, is not a waiver of that right. But it was not even that; all that this failure, not to insist, amounted to, was a failure to request the Court to correct the error it had already committed. Nor is it so clear that the error could be corrected in that way; the object of the statute being to prevent mistake on the part of the jury, .as to the law, as well as to preserve authentic evidence of the very language used' to the jury in the charge. The prisoner was not bound to except at the time. The rule would be difficult in civil cases; but in criminal cases, the prisoner, on motion for a new trial, may bring up any ruling of the Court which denies him the benefit of a statutory privilege like this. This was decided in effect in O’Hara’s case, before referred to.
Judgment reversed and cause remanded for a new trial.