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By Court,

Bristol, J.:

This cause is here by appeal from the district court of the first judicial district in and for the county of Santa Fe. It appears in the record that the defendant was tried and conducted in the court below for the crime of murder in the first degree, and duly sentenced to be executed. From this sentence and judgment the defendant appealed to this court, and assigns several grounds of error, among others that a part of the charge of the court below to the trial jury was given orallyinstead of in writing; this part of the charge appears in the record by a bill of exceptions as follows:

“ The court, in instructing the jury as to murder in the second degree, illustrated murder in the second degree; which said illustration was not given in writing. Illustrated by saying ‘if a man,’ pointing at the counsel in the courtroom, ‘ should fire a pistol into that crowd indiscriminately, without firing at any particular person, and should kill some one, that would be murder in the second degree, and not murder in the first degree.’ To which instruction or illustration, not being given in writing, the said defendant excepted, and now prays that this, his bill of exceptions, may be signed, sealed, and made a part of the record in this cause, which is accordingly done.

“ July 15, 1878.

“ Charles McCakdless, [seal]

“ Chief Justice, Judge, etc.”

There is manifest error in more instances than one in other portions of the charge to the jury, as the same is set forth in the transcript of the proceedings of the court below, but as they are not properly presented by a bill of exceptions, they can not be considered a part of the record for the purpose of review by this court. The only question, therefore, which we consider is, whether such error -was committed by giving the part of the charge above cited, in regard to murder in the second degree, verbally instead of in writing, as will justify this court in setting aside the judgment and granting a new trial.

The statute requiring instructions to a trial jury to be in writing is not directory only, but mandatory in its terms. In states where similar statutes have been enacted, their respective superior courts have uniformly held that oral instructions, in whole or in part, are error, and.sufficient cause for setting aside the judgment and ordering a now trial. The adjudications on this subject present an array of precedents and authority that can not well be ignored: Vide 45 Mo. 64; 6 Id. 399; 19 Ill. 82; 1 Col. 611; 43 Cal. 29; 37 Id. 294; 45 Id. 650.

The only decision of an appellate court to which we have been referred, that in any respect conflicts with this view, is one rendered by the supreme court of this territory, in the year 1859, in the case of Leonardo v. The Territory, ante, 291, that decision being to the effect, that it is wrong and in violation of the statute, to give oral instructions to the jury but that as the fact only of giving the charge orally appeared, without incorporating the charge itself in the record, to show its materiality, no error appeared. We feel obliged to dissent in part from the opinion given by the court in that case, and to establish a different ruling. If the court gave any charge to the trial jury upon the conclusion of the evidence, the presumption, in the absence of the charge, is that it related to matters pertinent to the case, so that if it appear by the record that a charge was given orally, though the charge itself does not appear of record, it is error.

In the case now before us, it is urged, on the part of the territory, by the attorney-general, that the oral instruction in regard to murder in the second degree is not error, because it was wholly immaterial, and could not have influenced the jury, but on what ground can this be assumed ? As this instruction was given, the presumption, in the absence here of the testimony, is, that the case, as presented by the evidence, warranted an instruction in regard to murder in the second degree. There was error in the substance of this oral instruction, in that it illustrated what would be murder in the second degree, which was not necessarily murder in that degree. It omitted important and necessary elements constituting the crime, such as that the killing must have been perpetrated by an act imminently dangerous to others, and in a manner evincing a depraved mind, regardless of human life, but without any premeditated design to effect death. It may be true that the various elements constituting the crime could have been proven only by the act and circumstances of the killing; but that was a matter of evidence to be passed upon by the jury in determining the question whether all these elements had been established. It is not for us to conclude that this defective instruction, with these material omissions, could not, or did not, influence or mislead the jury, nor that if the proper instruction had been given, with the punishment the jury might assess, they would not have rendered a verdict of murder in the second degree.

We are of the opinion that the only proper mode in giving instructions as a charge to a trial jury, and particularly in regard to the higher grades of crime, denominated felonies, is for the district court to give in writing all that it deems necessary or even proper to say to the jury in its charge.

We are of the opinion, for the reasons herein given, that the judgment in the court below ought to be set aside, and a new trial granted, and it is so ordered.

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