¶1In a petition for a rehearing appellant insists that when instructions in a criminal case are oral, they are deemed excepted to, and that it is not necessary to file exceptions within the twenty-day period as provided by the statute. It is true that § 10,824, Comp. Laws 1913 does state, "If the charge of the court, or any part thereof, is given orally, the same must be taken down by the official stenographer and shall be deemed excepted to by the defendant." If the instructions are oral, the defendant has no opportunity of considering and determining whether they are vulnerable to objection, and for his assistance the law steps in and says in effect: You need not except at this time, the instructions are deemed excepted to. This does not make any record, however, upon which error can be predicated, if there is any in the instructions, and so the law steps in again and says: We have excused you from making exceptions at this time, as you had no sufficient opportunity to pass upon the instructions, but you must make your record, and so we give you twenty days in which you are to file your exceptions in the office of the clerk of the district court. The making of exceptions and the filing of the same are two different things, and while oral instructions are deemed excepted to at the time they are given, the exceptions must thereafter be written out and filed within twenty days or they are waived. The petition is denied.
¶2CHRISTIANSON, BIRDZELL, BURR, and NUESSLE, JJ., concur. *75