State v. Anderson

4 Nev. 265, 1868 Nev. LEXIS 36

• Court: Nevada Supreme Court
• Decided: July 1, 1868
• Status: Published

Opinions

By the Court,

Beatty, C. J.

The defendant was convicted of murder in the first degree, moved the Court below for a new trial, which was refused, and now appeals to this Court from the order refusing a new trial.

The first point made is, that the indictment is insufficient to support the judgment of the Court below. In the case of The State v. John Millain, (3 Nev. 409) we held that an indictment which complied with our statutory requirements was sufficient, and that it was not necessary that it should contain all the old common law averments. The body of this indictment is as follows:

“ Defendant, Rufus B. Anderson, above named, is accused by the Grand Jury of the County of Lander, State of Nevada, by this indictment of the crime of murder. Committed as follows:

“ The said Rufus B. Anderson, on the fifth day of May, A.D-1868, or thereabouts, at the City of Austin, County of Lander, State of Nevada, without authority of law, and with malice aforethought, killed Noble T. Slocum, by shooting him with a pistol, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Nevada.”

This is in strict compliance with the form prescribed in the statute and is similar to the Millain indictment, except in this — that it fails to state that “ by means of the shooting with the pistol aforesaid, the said Noble T. Slocum then and there died.” The prisoner’s counsel contend that this, or some equivalent averment, was absolutely necessary to make the indictment good. Counsel contend that the averment that the prisoner killed Slocum by shooting him with a pistol on a certain day cannot be held to mean that he fired the fatal shot, and that the prisoner also died on that day. If it only means that accused fired the fatal shot on the day alleged, then there is no allegation that the party shot was dead when the indictment was found, for a party may live for a long period after receiving a mortal wound. On the other hand, if it only means that Slocum died on the day alleged, then there is no averment that the wound was inflicted within a year and a day. We are inclined to think that the allegation that defendant, “ On the fifth day of May, 1868, * * * killed Noble T. Slocum by shooting him with a pistol,” means not only that Slocum died on that day, bat that the fatal shot was also fired on the same' day. But admitting it does not clearly show both events accrued on the same day; still it does aver, we think, most distinctly that Slocum •died on that day. There can be no killing before death. A mortal wound may be given on one day, and death ensue on another. But we never say a man is killed until he is dead, unless we use the word “killed” in a figurative sense. If we mean to convey the idea that a party has received a wound of which he will die, we do not say he is killed, but that he is mortally wounded. If the allegation only means that Slocum died on the 5th day of May from the effect of a pistol shot, previously fired, we see no reason why this should make the indictment defective. If the shot was fired more than a year and a day before the death, then the law would presume that the party died from some other cause than the wound. No proof of a shooting which took place more than a year and a day before the death of the party would be received, and of course the prisoner could not be in any danger from this source. The indictment follows the form of the statute, is as formal and precise as the form of indictment now in use in England, and quite as full as the form recommended by the Code Commissioners of New York, (See 3 Nev., pages 464 and 466) and is in our opinion sufficient.

The next error complained of is the action of the Court below in regard to peremptory challenges. The facts in relation to this point are as follows : After twelve jurors had been examined and passed by both sides, all challenges for cause interposed up to that time having been disposed of, the Court required the respective parties to make their peremptory challenges to the jurors then in the box. The District Attorney interposed no challenge. The prisoner challenged four of the twelve jurors. The Court then directed the eight jurors in the box to be sworn to try the cause, and also ordered that in filling the panel each juror thereafter called shall be finally passed on by the exercise or waiver of the peremptory right of challenge. After eleven jurors had been sworn to try the cause, and defendant had exhausted nine of his peremptory challenges, he asked leave to challenge one of the eleven jurors then sworn to try the cause. This privilege was refused. The prisoner then exhausted his tenth challenge on another juror who was called, and the jury was completed.

Whilst perhaps in cases of felony it might be the best practice to have the panel full before any of the jurors are sworn to try the" cause, y.et we see no violation of law in pursuing a different course.

Our Criminal Practice Act clearly contemplates the swearing of jurors before the panel is completed. The California Criminal Practice Act is similar in language, and the Courts of that State have held that jurors may be sworn to try the cause as they are passed on without waiting for the full panel to be made up. People v. Reynolds, (16 Cal. 128.) The Court there held that the allowance of a peremptory challenge after a juror has been accepted and sworn, is not a matter of right. It may be permitted, says the statute, for good cause. (Section 384, Criminal Practice Act.) . In this case no attempt to show cause was made why the peremptory challenge should be allowed. The case of the People v. Jenks, (24 Cal. 11) is not in conflict with this rule. There, there was an offer made to challenge one of the jurors before he was SAVorn to try the cause.

The third point made for the prisoner is, that the Court excluded certain evidence offered by the defendant. This evidence was intended to prove that defendant had been in difficulties, and was in a state of mental excitement just prior to the killing, arising from difficulties or quarrels with other persons than the deceased. It was also offered to prove that he procured and carried the pistol with which the shooting was done on account of those other difficulties. Slocum, the party slain, as was admitted by the prisoner’s counsel, had no connection with these other difficulties. It was also admitted by the District Attorney that the defendant did not procure or carry the pistol with any design of using it against Slocum. We think this testimony was properly refused. It had no connection with the case. If the defendant had quarreled with anybody else, we cannot see how that could mitigate his offense in killing Slocum.

The defendant asked for three instructions, which were refused by the Court, and each of the three is claimed as being correct.

The first was as follows: “ If the jury entertain a reasonable doubt whether the killing was willful, deliberate, and premeditated, they should find him guilty of such crime as to which they, the jury, believe him guilty beyond a reasonable doubt.”

- It is a well-settled rule in cases of homicide, that after the killing has been satisfactorily established, the burden of proof to reduce the crime from murder to manslaughter is thrown on the defendant. This instruction is not very intelligible, but so far as we can understand it, it seems to be in conflict with this principle. The Court on this point gave very clear and explicit instruction — fully as favorable to prisoner as he was entitled to. It was not, then, error to refuse an ambiguous instruction, calculated to mislead, when the Court had already given one on the same point which was clear and explicit.

The second instruction asked was this: “ If the jury believe from the evidence that immediately before the firing of the pistol by the defendant, the deceased had assaulted the defendant, or had given to him a serious and highly provoking injury, sufficient to excite an irresistible passion in a reasonable person, and that such provocation did excite in the defendant a sudden, violent impulse and irresistible passion, and that acting under such passion he, the defendant, fired upon and killed the deceased, the jury should find the defendant guilty of manslaughter.” This instruction uses the disjunctive or, and would require the jury to find the defendant guilty of manslaughter only if they found that he had been assaulted just before the shooting. This is not law. It is not every assault which will reduce a homicide from murder to manslaughter. (See 2 Bishop on Criminal Law, Secs. 544-560, and cases cited.) The proof in this case showed that if there was any assault at all it was of the slightest kind, the mere touch of a finger or the laying of a hand on the coat of the defendant. It further showed if there was any such assault, it was brought about by the misconduct of the defendant himself.

The third instruction refused was in the following language: “ That in order to constitute the crime of murder, there must be a willful, deliberate, premeditated, and malicious intention to take human life, and if the jury should believe that the killing of Slocum by the defendant was not willful, deliberate', premeditated, and malicious, that they cannot find him guilty of murder in the first degree.”

The opening clause of this instruction gives a false definition of murder. This was a sufficient reason for refusing to give it. The conclusion of the instruction was right, but the Court should not have given it in the form presented.

Undoubtedly when counsel offer instructions in favor of a prisoner which are in the main correct, but contain some error or fatal defect in some part of the language used, it would in many cases be but just and humane in the Court to point out -the defect and allow counsel to correct their instructions; but whereas in this case counsel seek to get instructions on points where the Court has already instructed the jury, the Court is perfectly right in rejecting every instruction which is not technically correct. In this case the Court instructed the jury on all the points intended to be embraced by the three rejected instructions, and framed its instructions much more accurately than those prepared by counsel.

The next error assigned is, that the Court below erred in giving its instructions to the jury; the part of the instruction complained of is the following language : “ That it is not every assault that is deemed sufficient in law to mitigate a killing by the person assaulted, to the grade of manslaughter. Merely shaking a finger in the face of another, or touching his face with his finger, or laying a hand on his collar or breast, cannot be deemed an attempt to commit a serious personal injury on the person touched. Neither is a refusal to pay a debt, whether justly due or not, to be deemed such a serious and highly provoking injury as to be sufficient to excite an irresistible passion in the mind of a reasonable person.

“ If the jury believe that the only assault made on the defendant was of the character above stated, and that the only other injury inflicted upon him consisted in the refusal to pay the money claimed by his mother, and in the use of such words as: You must not speak to me in that way ; I won’t allow you to speak to me in that way, or words of similar import; even with the addition of the words: Well, by God; it would be going a great ways to say that such assault and provocation are sufficient to excite an irresistible passion in a reasonable person.” The principal argument urged against this part of the instruction is, that the Court in giving it violated that part of the Constitution which declares that “ Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare . the law.” The prohibition against charging juries in respect to matters of fact was only intended to prevent Judges from saying in regard to any fact in regard to which there was any evidence introduced that it was or was not established. Whilst the Court is the sole judge as to the admissibility of evidence, after it has been admitted, as to any point in a case, the jury are the sole judges as to its credibility, weight, and sufficiency. Whilst the jury must determine whether a disputed fact, (about which some evidence has been introduced) has been established, the Court may properly tell the jury what will be the legal effect of the establishment of such fact. In this case the Court did not pretend to tell the jury whether an assault had been made on the defendant, but merely told them if such assault had been made, as was described by the defendant in his own testimony, what would be the legal effect of such assault. The law, as applied to the supposed state of facts, was certainly correct.

The next point made by appellant is in regard to the misconduct of the jury. It appears that during the progress of the trial and whilst the Court had taken a recess, the jury were in the Court House in charge of a Deputy Sheriff. There was an open window to the Court-room, and a number of persons were standing about this window on the outside. The jury and Deputy Sheriff were at the same window inside. One of the jurors nearest the window saw a newspaper in the hands of a spectator and asked him for it. The party addressed handed up the paper to the juror, saying no more than “ certainly,” “ you are welcome,” or some short answer of this kind, having' no reference to anything other than the loan of the paper. The juror glanced over the Eastern dispatches, and just at this time the Judge came in and he handed the paper back to the party from whom he borrowed it. This is complained of as misconduct of the jury entitling the defendant to a new trial. Nothing which took place on this occasion could by possibility have influenced the mind of the juror in finding his verdict. The proof is satisfactory that no other conversation did occur than as related above. Whilst it was imprudent in the juror even to have held-such conversation, it certainly shows no improper motive on his part, no willful or premeditated disobedience of the instructions of the Court, no intent to do wrong, and no possible injury to defendant. It is not such misconduct as to entitle defendant to a new trial.

The last point made by defendant is that a juror served on the panel who, before the trial, had expressed an unqualified opinion as to the guilt of the prisoner. The - facts appear to be that the juror stated on his examination touching his qualifications as a juror that he had formed and expressed an unqualified opinion as to the guilt or innocence of the prisoner, but subsequently had modified that opinion. With this state of facts presented to the prisoner’s counsel, they failed to challenge the juror for either implied or actual bias, but accepted him without objection. If the prisoner accepts a juror without objection, whom he knows to have formed and expressed an unqualified opinion, he cannot, after verdict, raise this objection. If he willfully takes his- chance with such a juror, he must abide the result. Otherwise a prisoner could always get a new trial by simply refusing to exercise his unquestioned right to challenge such jurors for implied bias.

The judgment of the Court below is affirmed, and that Court will fix a day for carrying its sentence into execution.