(dissenting in part).
I cannot agree with the ruling of the majority of the court on Bill of Exception No. 7. I do not subscribe to the holding that the mandatory provisions of Article 389 of the Code of Criminal Procedure, R.S. 15:389, are applicable only to criminal cases triable before a jury.
The law on this subject before the adoption of the Code of Criminal Procedure in 1928 was Section'28 of the Revised Statutes of 1870, as follows:
“In all cases appealable to the Supreme Court, it shall be the duty of the judge #o-deliver his charge to the jury in writing, if the counsel of either party require the same.” (Italics ours.)
The present law, Article 389 of the Code of Criminal Procedure, reads:
“The judge shall deliver his charge in writing, whenever requested so to do either by the prosecution or the' defense prior to the swearing of the first witness.”
It is therefore obvious that the redactors of this Code intended that this law should no longer apply only to cases appealable to the Supreme Court or to charges delivered to the jury, but intended it to apply to-all criminal cases whether felonies or misdemeanors. Certainly the statute itself makes no distinction between cases triable by a judge and those triable before a jury, and in my opinion the omission from the present law of the provisions which I have italicized in quoting the statute of 1870 is significant.
The jurisprudence is legion that the provisions of these statutes are mandatory, and that the refusal of the judge to comply with .them by giving a written charge when requested is fatal to the verdict. See State v. Rini, 151 La. 163, 91 So. 664, and cases there cited; State v. Wilson, 169 La. 684, 125 So. 854.
I dissent.