are instructed, the section is certainly in conflict with Section 343 of the Code of Criminal Procedure above quoted; and in such case we are to be governed by the canon of construction found in Sections 16 and 17 of the "General Repealing Act" of 1877, in which it is to be provided that all the codes are to be deemed to have been passed on the same day, and as parts of the same statute;" and that "if the provisions of any code, title, chapter or article, conflict with, or contravene the provisions of any other code, title, chapter or article, the provisions of each code, title, chapter or article must prevail as to all matters and questions arising thereunder, out of the same subject matter." Under this rule the section of the Criminal Code as to charging the jury, so far as it *-is in conflict with and contravenes" Section 248 of the Code of Civil Procedure, must prevail, and govern the courts in the matter of instructions to juries in criminal cases.
Hopt v. Utah, 114 U. S. 488, 5 Sup. Ct. Rep. 972, is cited and relied upon by defendant in support of his position that the charge of the court is a necessary part of the judgment roll, and that a failure to insert it will reverse the case on error. An examination of that case, which has been four times to the supreme court of the United States, and there three times reversed, will show that the statute of Utah, on which the case in 104 and 114 U. S. was determined, is essentially different from ours. Under the Utah statute, as the court says, **the statute expressly and peremptorily requires that the charge of the court to the jury shall be reduced to writing before it is gives, unless by mutual consent of the parties, it is given orally." 114 U. S. 490, 5 Sup. Ct. Rep. 973. In that case the record showed that the judge charged the jury, but the record presented no charge of the court. The inference was irresistible that he charged orally; or, in the language of the court, **the record merely states that the court charged the jury, and does not state whether the charge was written or oral. If the charge was written it should have been made part of the record, which has not been done. If it was oral the consent of the defendant was
