Smith v. People

1 Colo. 121

Opinion

Gorsline, J.

The plaintiff in error, George Smith, was indicted at the May term, 1868, of the district court of Gilpin county, for the murder of William Hamblin. He was arraigned and pleaded not guilty, and was tried at the same term, the chief justice presiding. The jury returned a verdict of guilty, and the prisoner sued out a writ of error from this court. There were no exceptions taken at the trial to the decisions of the court in admitting or rejecting testimony, or to the instructions given to the jury in behalf of the people, or to the refusal by the court to give instructions asked for by the prisoner. The only exception taken was to the decision of the court in overruling the motion for a new trial interposed by the prisoner.

The argument of the case in this court was not confined to the exception taken as mentioned above, but extended to a discussion of such instructions given by the court below, as the counsel for the prisoner conceived to be erroneous, and to the refusal to give other instructions asked for by the prisoner. We permitted this, reserving the right to consider whether we could, in accordance with the law, regard matters which were not contained in the record before us.

It becomes us then to determine on this presentation of the case the appellate jurisdiction of this court, and to ascertain whether agreeably to the forms of law we can decide upon matters, which in no legal manner have been submitted for our consideration. At common law a writ of error only carried to the superior court such matters as appeared of record. The testimony of witnesses, the opinions of the court upon questions of evidence, the charge of the court and other incidents attending the trial of a cause never appeared upon the record, and therefore were never removable by writ of error. This rule being extended as well to criminal as to civil cases it followed, as a necessary sequence, that a person convicted of crime, although many errors might have intervened in the course of the trial, was remediless except by an appeal to the consideration of the same court in which such errors occurred.

To remedy this evil the statute of Westminster 2d, 13 Edward I, chapter 31, was enacted, which gave the bill of exceptions. It was considered in England, however, and so adjudged, that this statute, although general and unrestricted in its phraseology and terms, had no application to criminal causes. This statute has been substantially enacted in this territory, and we suspect in most of the States of the Union. In some of them, however, the courts being of the opinion that the statute did not apply to criminal cases, the legisla ■ tures of the respective States were compelled to extend the law specifically to that class of cases. In Pennsylvania, for instance, the orginal statute of Westminster 2d was passed in 1792, yet the court entertaining the opinion that it did not apply to criminal cases, persons under conviction for crime had no redress until the year 1860, when a law was passed which gave defendants, under indictment for murder or voluntary manslaughter, the right to except to the decision of the court upon any point of evidence or law, which exception should be made a part of the record as in civil cases. Thus it will be seen that in that State, previous to 1860, a defendant convicted of murder, notwithstanding errors very dangerous to him might have been committed during the progress of the trial, had no remedy whatever, except perhaps a motion for a new trial, addressed to the same court in which the error occurred. Our statute (Laws 1865, page 92) makes it the duty of the judge before whom any case shall be tried in the district court to sign and seal a bill of exceptions when tendered to him, and provides that such bill of exceptions, when allowed, signed and sealed by the judge, shall be filed by the clerk, and shall become a part of the record of such cause. It follows, then, that exceptions to the “rulings, opinions and decisions” of the court, as expressed in the statute, form no part of the record until they are reduced to writing and signed and sealed by the judge; much less can it be said that the proceedings on the trial of a case form a part of the record of such case, when no exceptions whatever were taken to the same. The question now arises, whether this court can, we will not say with propriety, but according to uniform and established rules of law, take cognizance of such proceedings as occurred in the progress of the trial, which do not come before us in any approved or legal manner. To this question there can in our opinion be but one answer. We should wander very far from the line of our duty if we should assume to determine matters which do not appear in the record before us. The evil consequences of such a precedent would greatly outweigh any good or favorable result which could be derived in a particular case, however important it might be. It would be contrary to the law as we understand it from the nearly uniform decisions of the courts, and we are bound to decide according to law. By doing so we should undertake to review points-first made in this court, and not taken in the court below or made a part of the record of the case.

In the case of Hopkins v. The Commonwealth, 50 Penn. 9, which was also an indictment for murder, the chief justice, in delivering the opinion of the court, with great emphasis inquires, in regard to a point to which no exception had been taken at the trial, if it would not be an impertinent interference with the established course of administering criminal law to obtrude a discussion of the point which was suggested by counsel in the argument. And the court, in that case, held, that they could not legally inquire whether that part of the charge of the court below, to which no exception had been taken, was correct or otherwise. The courts of this country, which proceed according to the course of the common law, have been nearly uniform in their decisions upon this question. There is one remarkable exception, which we will presently notice. The supreme court of the United States has expressed but one language, and has always held that objections to instructions given, or to the refusal to give instructions asked, can only be taken advantage of and preserved by bill of exceptions. Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 592 ; Thompson v. Riggs, 5 id. 663. The latter case is somewhat remarkable in this, that the counsel for the defefidant in error waived the objection that there was no proper bill of exceptions to raise the principal question involved in the case. Notwithstanding this waiver, the court declined to discuss it on the ground that the record was not properly before them. Justice Clifford, in rendering the .Opinion of the court, says: “ Settled practice in this court is, that neither the rulings of the court in admitting or rejecting evidence, or in giving or refusing instructions, can be brought here for revision in any other mode than by a regular bill of exceptions.” And, in relation to the-practice generally, he further says: “Instructions requested or given rest in parol, and do not, in the practice of this court, or in any other court where the common law prevails, become a part of the record unless made so by a regular bill of exceptions, sealed by the judge who presides at the trial.” The instructions which are given or refused, or whatever else may transpire, ore tenus, during the trial, become no part of the record, any more than do the arguments of counsel, until exceptions to the same are signed and sealed by the judge, when, upon filing the same with the clerk, according to the statute, they form a part of the record. There is a decision, however, in conflict with the opinion we have announced herein, and, we believe, also opposed to the uniform decisions of the courts of common laws in this country and in England. It is in the case of Falk v. The People, reported in 42 Ill. 331. The question arose upon an instruction given by the circuit court, to which no exception was taken. In the opinion of the court, which upon this point contained no argument, and we suspect that court could find neither reason, argument or authority to sustain the extraordinary decision which they made, we find the following inquiry: “Suppose all the instructions given by a court to a jury in a capital case are wrong, that they do not announce correct legal principles, or, being correct, are inapplicable to the case, and no exceptions are taken to them, would it be the duty of an appellate court, under such circumstances, when the record shows the prisoner has been illegally condemned by misapplication of the law to his case, and he asks a review of the proceedings, that such court, in the face of the record, should pronounce the sentence of death upon him?” How, with great deference, we say that what is implied by this inquiry is a begging of the whole question. It assumes that, in some manner, not by the record, for as we have seen, the only way to make an instruction a part of the record is by exception signed and sealed, but perhaps by street rumor, by a newspaper report, or by what some person may have told the court, they are informed that a certain instruction was given. The court evidently makes a point that it is a capital case. In Shorter v. The People, 2 N. Y. 193, which was an indictment for murder, the court, certainly one of as high authority as that of Illinois, speaking through Justice Broesoe, one of the ablest judges who ever adorned the bench of that State, says: “The law concerning bills of exceptions is the same in criminal as in civil cases,” and further says : “ We should not allow our feelings to draw us into the making of a bad precedent.” In the case of Gill v. The People, decided at the same term as Falk v. The People, and reported in the same volume, which was an indictment for an assault with intent to kill, the court absolutely refused to review the proceedings in the circuit court, because they were not preserved by bill of exceptions, and they had no record before them. It will be seen, therefore, that the supreme court of Illinois, in the case of Falk v. The People, not only contradicted their former decisions but ignored the cases of Hopkins v. The Commonwealth, Shorter v. The People, Thompson v. Riggs, and, we may add, the opinions of respectable courts everywhere. It may be thought that we can consider this case as upon an agreed statement of facts. This cannot be for two reasons. First, the transcript sent up by the clerk of the district court does not contain, nor does it pretend to contain the facts, but it does purport to contain the evidence, which consists of the testimony of witnesses. Second, Because the rulings and opinions of the district court cannot be reviewed in this manner; it can only be done by bill of exceptions. Pomeroy's Lessee v. State Bank, 1 Wall. 592. It is alleged as error that the verdict of the jury was informal and insufficient. The verdict was in these words: “We, the jury, find the defendant guilty.” Under the indictment in this case the jury might have found the prisoner guilty of manslaughter, and it is urged that they should have specified in their verdict of what offense they convicted him. We are referred, in support of this proposition, to the case of the State v. Dowd, 19 Conn. 387, and McGee v. The State, 8 Mo. 495. It will be found upon examination, however, that these decisions were given under peculiar statutes of those States. In Connecticut the statute prescribed that the jury, if they should find the defendant guilty, should ascertain in their verdict whether it be murder in the first or second degree. The court, in its opinion, states that this is a positive provision of the statute, without any exception or qualification. And so in Missouri the statute provided that, “Upon the trial of any indictment for any offense, where by law there may be conviction of different degrees of such offense, the jury, if they convict the defendant, shall specify in their verdict of what degree of offense they find the defendant guilty.” These statutes seem to be imperative, and the courts of those States were compelled to yield obedience to them. We have no statute upon the subject, and our practice has conformed to the general practice of courts in those States where they have no peculiar statutes with reference to the matter.

Mr. Bishop, in his very excellent work on criminal proceedure, vol. 2, sec. 627, says : “ That a general verdict of guilty convicts the prisoner of all matters which are well charged against him in the indictment.” So are the cases of The People v. Marsh, 6 Cal. 542 ; Bond et al. v. The People, 39 Ill. 26, and numerous others which might be cited. We are of the opinion that this verdict is sufficient in form. The prisoner made a motion in the court below for a new trial, on the ground, among other things, that the verdict was against the law and the evidence, and also because of newly-discovered evidence. This brings up the question as to whether there was sufficient evidence to sustain the verdict. It seems, from the evidence, that the prisoner and Robert Reynolds, both colored men, were at the cabin of Hamblin on the night of the affray, which resulted in his death. For what purpose they were there, is not disclosed. The evidence consisted mainly of the confessions of the prisoner; some made immediately after his arrest, and some at different times while he was in prison previous to his trial. The first were made in the presence of Joseph Harper, a witness, who testified to them, and who says that the prisoner on being asked why he did such a horrible deed, and what he hit the deceased with, replied that he got mad and hit him with the stool he was sitting on, and knocked him down ; that the deceased was likely to get up again, and he hit him with a chunk of wood and knocked him down again; that, in struggling round, Hamblin made such a fuss that they put a string around his neck and another around his arm, and hauled him off and put him in a shaft; that the prisoner struck the deceased two blows, and Reynolds struck Mm once, and that they dragged him to the shaft and put him in. The confessions made by the prisoner to Mr. Grimes, the sheriff, after he was confined in jail, vary in some respects from the foregoing. He admits having commenced the affray by hitting the deceased with the stool and the piece of wood, but says that Bob put the rope around his neck; that he remonstrated with him for so doing, and that Bob replied that it would make no difference, for he was dead anyhow. He also, in these conversations with the sheriff, admitted that he and Reynolds dragged the body to the shaft, and Reynolds threw it in; that Reynolds went ■ back to the house, and he to a cabin below, where they remained until nearly morning, when they went together to the Childs’ House at the foot of Guy Hill; that the dispute was between Hamblin and the prisoner about some blankets, and Bob had nothing to say until after the fight commenced. The prisoner also stated that Bob locked the door and threw the key away, describing the place where it was thrown.

Such were mainly the confessions made by the prisoner. The body of the deceased was found in a shaft as proven, some twenty or thirty yards from the house ; when found, there was a rope tied tightly around the neck so as to be imbedded in the flesh; another rope, also, loosely drawn around the neck, and another around the wrist were dis covered; Ms pockets were turned wrong side out; there was a pool of blood near the door, and a stick was found colored with blood; there were gashes on the head of the deceased, and the surgeon testified that they were made by blows sufficient to knock him down ; the key of the house was found in the place designated by the prisoner. The surgeon also testified that the death was caused by strangulation. Such were the main facts upon which the jury found the verdict of guilty, and the question is, whether upon this evidence the jury were warranted in their conclusion, or whether the verdict should be set aside, and a new trial awarded.

Murder is defined in our statute to be the unlawful killing of a human being in the peace of the people with malice aforethought, either express or implied. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, or ivhere all the circumstances of the killing show an abandoned and malignant heart. These are statutory definitions (Laws of 1861, page 292) and are similar to the common law. We presume that if Reynolds and the prisoner had been tried together, there could have been but little question as to the correctness or justice of the verdict. We also presume that if the confession of the prisoner, as narrated by the witness Harper, stood alone, disconnected from that made to the witness Grimes, there could no lawyer be found, who would question it. In Rex v. Shaw, 6 Carr. & Payne, 480, the prisoner confessed that he and the deceased quarreled; that the deceased struck him and the prisoner knocked him down ; he got up and the prisoner knocked him down again and kicked him, and then put a rope around his neck and dragged him into the ditch. This case only differs from the one at bar in this, that only two participated in the fight and the deceased struck the first blow, certainly under greater provocation than is proven to have existed in this case. “But,” said Pattebsow, Justice, “if two persons fight, and one of them overpowers the other and knocks him down and then puts a rope around his neck and strangles him, that is murder. The act is so willful and deliberate that nothing can justify it.” There can be no doubt, we think, that this proposition is correct, and we might cite many more cases of similar purport, if we did not deem it entirely unnecessary. Now the confessions made to Sheriff Grimes stand upon a basis a little different. In those statements the prisoner asserted that Reynolds put the rope around the neck of the deceased against his remonstrances. His statements, however, in regard to the rest of the affray are substantially the same as those related by the witness Harper. It was contended in argument that, although the prisoner commenced the affray, yet the act by which the killing was effected was performed by Reynolds, and therefore he and not the prisoner was the one guilty of murder. We do not believe such to be the law. • If two persons combine to do an unlawful act and death ensue, it is considered by writers on criminal law and by the decisions of the courts to be murder as to both of the participants. Here the prisoner, without any provocation which appears in proof, with a stool and with a chunk of wood, knocked the deceased down twice, once at least hitting him on the head, and after his confederate Reynolds had tied the rope around his neck, the prisoner assisted to drag the body some forty or fifty yards to a place of concealment. If this was not murder on the part of the prisoner, we think it cannot be denied that he did stand by and “aid, abet and assist” in the perpetration of the crime. The principle is well stated in the case of Brennan et al. v. The People, 15 Ill. 511. The court say: “ The prisoners may be guilty of murder, although they neither took part in the killing nor assented to any arrangement having for its object the death of Story. It is sufficient that they combined with those committing the'deed to do an unlawful act, such as to beat or rob Story, and that he was killed in the attempt to execute the common purpose.”

The motion for a new trial was further made on the ground of newly-discovered evidence after the trial and ver diet, and was supported by the affidavit of Clara Brown. We cannot conceive that what she states in her affidavit could have made any possible difference in the result. Certainly none in favor of the prisoner. If any thing, it would have told against him, as exposing a motive on the part of these men in being at the cabin of Hamblin, from which the jury might well have inferred a malicious intent.

The prosecution might well have admitted every thing stated in the affidavit as true without any injury to its cause. We believe, therefore, on this whole record, that the prisoner, upon the law and evidence, is guilty of the murder of William Hamblin, and that the jury, in rendering a verdict of guilty, arrived at a correct conclusion.

The judgment of the district court is affirmed.

Affirmed.

A petition for rehearing was presented by counsel for the prisoner, and, at an adjourned session of the court in January following, the petition was denied.

Mr. Justice GtOESLIíte was not present at that session, and the opinion of the court was drawn up by

Hallett, C. J.

The plaintiff in error asks a rehearing in this cause, mainly upon the ground that the opinion of the court is erroneous upon the question of practice respecting exceptions to instructions given in the court below. This point was very fully considered in the opinion of the court, and we have re-examined it with such care and attention as we are able to command. It is urged that the authorities cited in the opinion of the court are not to be regarded in this territory, for the reason that, in the States from whence they are taken, it is the practice to charge juries orally, while our statute requires such charges to be reduced to writing. In the first place, it is to be observed that it was always the practice in civil cases, and in criminal cases where exceptions were allowed, to write down the part of the charge objected to, and the statute has simply changed the time for putting the charge into writing and provided that the whole shall be written out, whether objected to or not. We do not perceive that the'objection and exception to the ruling of the court, which was always necessary, is, by the statute, rendered unnecessary. The obvious intention of the statute was to prevent mistake or misapprehension respecting the language used by the court, by requiring that the charge should be put into writing, and there is nothing to show that it was intended that the instructions, when written down, should become part of the record. It is not provided that the instructions shall be authenticated in any way whatever, or that they shall be filed among the papers in the cause. It is true that the judge is required to signify his approval by writing the word “given” in the margin of the instructions, and his disapproval by the word “refused,” but this is so obviously designed as a mark of distinction rather than of authentication, that we think it not necessary to comment upon it. We cannot lightly assume that it was intended to incorporate the instructions into the record without any authentication whatever. The mere filing of a paper in a cause is not alone sufficient to make it a part of the record. In McKinney v. The People, 2 Gilm. 551, the rule upon this point was stated as follows :

“In a criminal case, after the caption stating time and place of holding the court, the record should consist of the indictment as found by the grand jury, the arraignment of the accused, his plea, the impaneling of the traverse jury, their verdict, and the judgment of the court. This, in general, is all the record need state. If, during the progress of the prosecution, motions are made and 'overruled, the facts can be preserved by a special entry on the record, or by bill of exceptions. In one or the other of these ways it is necessary to preserve every fact that the prisoner may deem essential to his rights, and a fair and regular trial.”

We believe this to be good law, although the same court seems to have adopted a different rule in Falk v. The People. According to this rule, instructions do not become a part of the record unless made so by bill of exceptions. Again, the language of the statute of 1865, respecting exceptions in criminal cases, seems to leave no doubt , as to the necessity of an exception upon every point reserved for the consideration of a court of review. That statute is as foh lows:

“In all cases in the district court where either party shall except to any ruling, decision or opinion of the court, and shall reduce such exception or exceptions to writing, it shall be the duty of the judge to allow the same, and to sign and seal the same. * * * And when such bill of exceptions is so allowed, and signed and sealed by the judge, % * * * it shall thereupon be filed by the clerk, and shall become a part of the record in such cause.”

It will be noticed that the statute does not declare that the ruling of the court alone, however certified, shall become part of the record. It is only when such ruling is accompanied by an exception, and is properly certified, that it gains the legal quality necessary to its admission to the record. Bouvier defines an exception to be, “the statement in writing of the objection made by a party in a cause to a decision of the court on a point of law, which, in confirmation of its accuracy, is signed and sealed by the judge or court who made the decision.”

From this, it appears that three things are comprised in an exception ; the ruling of the court, the objection thereto, and the authentication. The objection of the party appears to be quite as indispensable as either of the other qualities, and we know of no ground upon which it can be said to be unnecessary. It is one of the essential elements of an exception, and the exception cannot exist without it. In Falk v. The People, the supreme court of Illinois assumes that the record shows the instructions, which is the very point in controversy. How can the record show the instruction when the exception for which the statute calls, and which is the essential condition upon which they are to be entered of record, is wanting ? For ourselves, we must continue to say that we cannot thus interpret the law. It is written that exceptions to the rulings of inferior courts shall be entered of record, and shall be open for review in this court, and we cannot say otherwise, even if we would. What is here said will furnish an answer also to the suggestion, that the instructions being found in the bill of exceptions are the subject of judicial cognizance in this court. We have here the certificate of the judge who tried the cause as to these instructions, but in the absence of any exception to them we are not judicially informed of their character. The modern practice of putting all the exceptions taken throughout the whole course of a cause into a single bill has not changed the rule that each exception stands upon its own merit. The circumstance that a ruling to which no exception has been taken is incorporated in the same bill with another ruling to which an exception has been taken, cannot affect the status of the former. Each must stand or fall by itself. It was also urged that the judge of the district court should have entered exceptions in behalf of the accused, or, at all events, that it ought to be assumed that all exceptions were taken at the proper time. We are acquainted with the ancient maxim, adopted in the days when persons charged with crime were not allowed the assistance of counsel, which declares that a judge shall be counsel for the prisoner, but we doubt whether it has ever been carried so far as to require the judge to object to his own ruling. We may say, with Foster:

“In capital cases the courtis so far of counsel with the prisoner that he should not suffer him to consent to any thing manifestly wrong, and to his own prejudice,” but this is not saying that the court is bound to object to every thing that is done in the progress of the cause. A proper respect for the maxim would doubtless restrain the judge from misapplying or misinterpreting the law. But if, after stating the law as judge, he should be required as counsel for the accused to state an objection to his ruling, he would appear to be in an exceedingly perplexing situation. One who is bound to lay down the law correctly, and immediately show himself wrong by stating a valid objection to it, is certainly in need of an ingenious mind. If a judge believes a ruling to be erroneous he ought not to make it, and if he believes it to be correct, he cannot state a valid objection to it. The statute provides that theparty shall except to the ruling of the court, which is sufficiently explicit and free from ambiguity. There are authorities also which hold strong language upon this point. In Clem v. The Commonwealth, 2 Metc. (Ky.) 10, which was a capital case we find the following language:

“ It is insisted on behalf of the appellant that the circuit court committed errors to his prejudice in admitting important evidence against him. It does not appear from the record, however, that any exceptions were taken to any of the evidence offered by the Commonwealth and permitted to go to the jury, and for this reason, even if it appeared that improper evidence had been admitted upon the trial, the appellant could not avail himself of such error as a ground of reversal.”

So also in 1 Bishop’s Crim. Law, § 843, it is said: “If the defendant permits illegal testimony to be given to the jury, as shown by his making no objection to it, he cannot afterward claim any privilege on account of its admission.” The rule is here stated with reference to testimony, but it is the same in respect to instructions, as we may learn from the case of Hopkins v. Commonwealth, cited in our opinion in this cause. If a superior court is required to assume that objection has been made to an instruction or to testimony upon a trial in an inferior court, or if a judge upon a trial of a capital cause is bound to interpose an objection when none is made by the prisoner, these authorities are strangely silent upon those points. Upon a careful examination of the opinion drawn up by our brother Gorsline, we are again compelled to express our concurrence therein, and we are constrained to add that we do so under a profound sense of the responsibility resting upon us, as the minister of the law, listening to the last appeal of a wretched man who is about to take his place upon the gallows.

In this connection we will briefly allude to the instructions given upon the trial below for the purpose of freeing the case from any suspicion of illegality that may be cast upon it. We have not lost sight of the fact that these instructions are not before us in a way which will enable us to pronounce a judicial opinion upon them, but we desire to make some observations for the purpose of showing that the instructions are not, as has been claimed, wholly unsupported by the law. The case of The People v. King, 27 Cal. 507, was an indictment for murder, and upon the trial in the district court an instruction was given which, as will be seen, was substantially the same as the one of which complaint is made in the case at bar. We give the remarks of the court at length :

“It is next claimed that the court erred in giving the following instruction : ‘In the case that is now being submitted to you, there is no evidence on any points or matters given in proof which reduce the crime charged in the indictment to manslaughter; if the defendant be found guilty, therefore, you cannot consider the question of manslaughter upon the evidence in this cause.’ This instruction is not a little obscure, and if it was given as represented in the transcript, it is quite possible that the jury may have found some difficulty in determining its exact meaning. The record does not contain the evidence, or any part thereof, and we cannot, therefore, read the instructions in the light of the testimony in view of which it was given, but are forced to determine its meaning by its own terms. If there was any evidence before the jury tending, however slightly, to reduce the homicide to the grade of manslaughter, this instruction was erroneous. If the expression ‘ there is no evidence on any points or matters given in proof’ is to be understood as admitting that there were ‘points and matters given in proof’ which, if true, would reduce the offense to manslaughter, but declaring the evidence as to such points or matters to be insufficient to warrant the jury in finding them to be true, it was erroneous, because it assumed to pass upon the weight of evidence which, under our constitution, is left entirely to the jury, and in regard to which the judge, contrary to the rule of common law, is not allowed to express an opinion. On the other hand, if there was a total absence of all testimony as to such facts and circumstances as would, under the law, reduce the offense from murder to manslaughter, and the instruction is to be under stood as declaring such to be the case, then it was not erro ■ neous, because judges, although not allowed to charge juries with respect to matters of fact, may state the testimony and declare the law (sec. 17, art. VI of the Constitution). At common law a judge is allowed to express his opinion as to the weight of evidence. Commonwealth v. Child, 10 Pick. 252. In this respect the constitutional provision referred to was intended to change the rule so as to leave the weight of the evidence entirely to the jury ; but judges may still, as formerly, state what facts are in evidence and what are not; or in other words, they may state the evidence pro and con. in view of which the existence of certain facts is affirmed or denied, which includes the right to state to the jury, that there is no evidence as to particular facts or issues, when such is the case ; counsel for defendant seems to have understood the judge as instructing the jury that there was no evidence as to facts, which, under the law, would reduce the offense charged to manslaughter, and to have excepted to the instruction upon that ground, so understood, there being no evidence of the character in question, the instruction was not erroneous.”

So, also, in The People v. Byrnes, 30 Cal. 207, the court say:

“ It is neither necessary nor proper for the court, on the trial of an indictment for murder, to give an extended or any definition of murder in the second degree, unless there is evidence in the case tending to prove that the crime was or may have been of that grade in the given instance. Instructions are always to be given with reference to the facts proved before the jury. * * * The circumstance that counsel conducted the defense on the theory of murder in the second degree, assuming that he did so, did not in itself make it necessary that the court should deal with the case in an aspect which it did not in fact present.”

The constitution of the State of California, like our statute, restrains courts from charging juries respecting matters of fact, and therefore these decisions are in point. It is true that the constitution of that State expressly declares that the courts may state the testimony, but as our statute is silent upon that point, and courts were always, by the common-law practice, allowed to state the testimony, we may safely affirm that the law is the same in this territory. We learn from these decisions that it is not error to withdraw from the consideration of the jury a crime concerning which there is no evidence before them. Whether there is any evidence at all to prove a fact charged is always a question for the court, but the sufficiency of evidence to prove the facts charged must be determined by the jury. If, in a case of felonious homicide, the evidence shows the killing to have been deliberate and intentional, there is no question of manslaughter presented, and therefore no reason for submitting that question to the jury. To require the jury in such a caseto pass upon the question of manslaughter would be as unreasonable and absurd as to instruct them respecting the crime of larceny. So in the case of the State v. Mill, 3 Nev. 444. The court instructed the jury that they must find the prisoner guilty of murder in the first or second degree or not guilty; thus taking from them the right to find the prisoner guilty of manslaughter, and the supreme court of that State say: “ If it was proper, under such a state of facts, to charge the jury they might, in their discretion, find the prisoner guilty of manslaughter, it was equally proper to charge they might find.him guilty of an assault to commit murder, or even guilty of a simple assault, for both of these are crimes of which a party under our statute may be convicted upon an indictment for murder; yet in a case where a party was beyond all question slain, and another party indicted for the murder, it would seem ridiculous to charge the jury that they might find the defendant guilty of a simple assault.”

We agree, that if the evidence tends to prove a case of manslaughter, or if, upon the evidence, there is any doubt whatever as to the grade of the crime, the question of manslaughter ought to be submitted to the jury; but when all the evidence tends to prove murder, if it proves any thing, it cannot be wrong to say to the jury that the only question before them is, whether the accused is guilty of that crime. It is true that in the case at bar the question of manslaughter was withdrawn from the consideration of the jury, but there was no evidence whatever tending to establish that crime. To adopt the language used in The People v. Byrnes: “We consider that all the evidence tended to prove murder * * * * , and it is certain that there is none having the slightest tendency to the contrary.”

The evidence in this case shows that the deceased, after being twice knocked down upon the floor of his isolated cabin by the blows of the plaintiff in error, was strangled to death by the latter’s companion in the terrible crime. The combat was commenced by the plaintiff in error, so far as we know, without provocation, and after he had reduced his victim to a condition of helplessness, the cause of death was applied by this man and his associate, or by his associate alone. The guilty pair then bore away the body of deceased and threw it into a neighboring mining shaft, and together fled from the scene of the tragedy. According to the statement of one witness, the prisoner protested against the act of Reynolds in tying the rope around the neck of deceased, but if the jury accepted this as true we cannot say that it tended to reduce the crime to manslaughter. The only effect of it would be to deny on the part of the prisoner any participation in the killing. The statute declares, that “in cases of voluntary manslaughter there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury upon the person killing. The killing must be the result of that sudden violent impulse of passion supposed to be ..irresistible. And again, the killing being proved, the burden of proving cir cúmstances of mitigation, or to justify or excuse the homicide, will devolve on the accused unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the ac'cused was justified or excused in committing the homicide.” ,

With the law and the evidence in this case, before us, we are' unable to perceive that there was any question of manslaughter arising in the case. The accused must be guilty of murder if he is guilty of any thing, and we have already said that we' entertain no doubt as to his guilt. We deplore thfe necessity which rests upon us to declare this conclusion and we'would gladly avert the dreadful doom of the wretched man, who now invokes our aid, if it were possible to do so, but we have a duty to perform as officers of the law which cannot be controlled by any feeling of sympathy for the prisoner, and it is in the discharge of that duty that we now declare that the petition for rehearing must be denied.

Petition denied.