By the Court,
Hawley, J.:Appellant appeals from an order of the district court denying his motion for a new trial, and from the judgment. The record is presented without any bill of exceptions; and we are asked to review the charge of the court to the jury, provided we entertain the opinion that the court had authority to charge the jury of its own motion, a power which appellant’s counsel denies.
In the State v. Forsha, ante 137, it was held, “ that only such instructions as are asked of the court by the parties are to be considered a part of the record,” and that “the charge given by the court of its own motion * * * can only be brought up by bill of exceptions.” Sections 426 and 450 of the Criminal Practice Act and People v. Hart, Cal. Sup. Court, Oct. term, 1872, are cited in support of the *255decision. We think this. decision is undoubtedly correct. Section 386 of the Criminal Practice Act provides that ‘' In charging the jury the court shall state to them all such matters of law as it shall think necessary for their information in giving their verdict.” Section 387 provides that "Either party may present to the court any written charge and request that it may be given. If the court think it correct and pertinent, it shall be given; if not, it shall be refused.”
These sections refer distinctly to .two different classes of instructions: first, to those given by the court of its own motion; second, to those asked of the court by either party. By section 426, it is. provided that "When any written charge has been presented and given or refused, the question or questions presented in sueh charge need not be excepted to nor embodied in a bill -of exceptions; but the written charge itself, with the indorsement showing the action of the court, shall form part of the record; and any error in the decision of the court thereon may be taken advantage of on appeal in like manner as if presented in a bill of exceptions.” ' Section 450 designates what shall constitute the record in a criminal action, and in the seventh subdivision specifies " the written charges asked of the court, if there be any.” We have cited these various sections at length, in order to call the .especial attention of the profession to the rule of practice therein prescribed.
We are satisfied, first, that the court has authority to charge the jury .of its own motion; second, that such charge can only be considered by this court when properly embodied in a bill of. exceptions. The statute will not admit of any other construction.
The argument of counsel that there exists no good reason why any distinction should be made between charges given by request of either party and the charge given by the court of its own motion, might with propriety be addressed to the legislature in support of an amendment to the law, so as to avoid this distinction. Our province, however, is to decide what the law is, not what it ought to be.
*256Appellant next claims a new trial upon the ground that he was not indicted by his proper name. The record shows that he was indicted by the name of Thomas Burns; that upon arraignment he stated his true name to be Thomas L. Burns. After verdict he filed an affidavit stating that at the' time of his arraignment he was ignorant of the fact “that he' was improperly named in the indictment ” and averring his true name to be Thomas L. Byrne. Appellant cannot contend that he is not sufficiently identified. In the minutes of the judgment the court refers to him as follows : “ Thomas L. Burns.alias Thomas L. Byrne, as you now state your name to be.” Again, after referring to the indictment, the court says to appellant: “To this indictment you pleaded not guilty and at the time suggested that your true name was Thomas L. Burns without taking any exception to the orthography of your surname as it appears in the indictment.”
Unquestionably, a defendant in a criminal action should be indicted by his true name when known. But if unknown, he may be indicted by any name that is sufficient to identify him. When arraigned he should give his true name; and if he fails to do so upon request, he cannot afterwards complain because the court proceeded to try him by the name specified in the indictment (or the name given upon arraignment) although subsequently proved to be not his true name. Criminal Practice Act, Secs. 270, 271, 272; People v. Kelley, 6 Cal. 213; People v. Jim Ti, 32 Cal. 61; State v. White, 32 Iowa, 19.
There is no error in the record. The judgment of the district court is affirmed. '