By Court,
Titus, 0. J.:This is an appeal by William Gertrude from a judgment of death pronounced upon him by the district court of the second judicial district of Arizona, on a trial for murder.
There was no assignment of error, and the case was submitted on briefs without oral argument. On inspection of the transcript, however, it does not appear that the charge of the judge before whom the case was tried was in writing and read to the jury; nor does it appear that the defendant consented in open court, or otherwise, that the charge should be given verbally.
The law of Arizona, sec. 388, Compiled Laws, p. 137, proceedings in criminal cases, is as follows: “The charges of the court to the jury shall be in writing, signed by the judge *76and filed with the papers in the case, unless the defendant consent in open court for the charges to be given verbally.”
This court has decided at its present term, in the eases of the Territory v. Michael Kennedy, and the Territory v. Milton B. Duffield, felonies not capital, that the record must show on appeal in such cases as these that the charge was in writing and read to the jury, or that the defendant consented in open court that the charge should be verbally given.
It is the opinion of this court, in the present case, that if the record must show these things in cases such as those, a fortiori it ought to show the same things in cases such as this, whose penal consequences are so much more severe, and that the record failing to show them in this case, the judgment ought to be reversed.
The judgment of the district court is therefore reversed, and the cause remanded for a new trial.