State v. Hymer

15 Nev. 49

• Court: Nevada Supreme Court
• Decided: January 15, 1880
• Docket: No. 1001
• Status: Published

Opinions

By the Court,

Hawley, J.:

1. The court did not err in refusing to strike out all the testimony of the witness Collins. Some, if not all, of the testimony set forth in the bill of exceptions was clearly admissible. But even if it was not, the objection of appellant would still be untenable, because the bill of exceptions does not show that it contains all of the testimony of said witness.

The presumption would therefore be, that the witness did give material and relevant testimony.

If appellant desired to have the court strike out any portion of the testimony, he should have specified that part which he considered irrelevant and immaterial. His motion ‘‘to strike out all the testimony of the witness ” was properly overruled.

2. The court did not err in instructing the jury as to the test or distinction between murder in the first and murder in the second degree. The instruction complained of is the same as was given in The State v. Harris, 12 Nev. 414. This court there said, “ that it contains no substantial error. ”

3. The court did not err in giving respondent’s instruction number five, relative to the weight and effect to be given to defendant’s evidence.

This instruction was copied from The People v. Cronin, 34 Cal. 195, 196. We concur in the opinion, expressed by the court in that case, that the instruction “ was in all respects legal and proper.”

There is nothing in the instruction “ charging the jury in regard to matters of fact,” as claimed by appellant.

4. The other grounds upon which appellant moved for a new trial are equally untenable, and, as they are not relied upon by appellant’s counsel, need not be specifically noticed.

The judgment and order overruling defendant’s motion for a new trial are affirmed, and the district court is directed to fix a day for carrying its sentence into execution.