[266]*266By the Court,
Sanders, J.:
The defendant, Thomas Russell, a Mexican, was accused by information of the murder of one Mamie Johnny, an Indian woman, with a knife, on the 15th day of September, 1922, at Elko, in the county of Elko.
The defendant prosecutes this appeal from a conviction of murder in the first' degree, with the death penalty assessed.
When the case was called for trial the defendant made application for a change of venue, on the ground that he could not obtain a fair and impartial trial in Elko County. The application was refused, but the defendant did not except to the order of refusal. While the evidence in support of the application is contained in the record, it is not incorporated in the bill of exceptions. We, therefore, are not authorized to consider or pass upon the sufficiency of the evidence to support the order of refusal.
It is urged by counsel for the defendant that had there been no other serious error in the case, that of the trial court in denying and overruling the defendant’s challenge to the talesman, Richard F. Wood, on the ground of actual bias, would of itself be sufficient to warrant this court in remanding the case for new trial. The challenge is predicated upon the talesman’s bias against Mexicans. It appears that when both counsel for the defendant and the state had probed the tales-man as to his state of mind with respect to his bias [267]*267and feeling against Mexicans, the trial judge examined the juror with this result:
“Court. You answered counsel for the defendant that you did not like Mexicans ? A. I don’t like the Mexican race.
“Court. As a race? A. No, sir.
“Court. Now, I will ask you to consider carefully, and search your own mind, and answer me this question: Do you think that that feeling against the race would in any manner influence you for or against this defendant, unconsciously or otherwise, if you were chosen as a juror? Do you think that would enter into your mind or enter into your opinion, unconsciously or otherwise, and prejudice you against the individual on trial? A. No, sir; I have no feeling against this individual.
“Court. And your feeling against the race would not be carried as against the individual? A. No, sir.
“Court. And I will ask you this: Could you sit here and consider this case with the same fair impartiality and with entire absence of prejudice, the same as if it were a white man or any one else on trial in this case ? A. Yes, sir.
“Court. You are sure that you can do that? A. Yes, sir.
“Court. And your feeling would not in any way prejudice you against this defendant? A. No, sir.
“Court. The challenge is denied.”
Upon careful review and consideration of the entire examination, we find nothing which leads to a just inference, in reference to the case, that the talesman would not act with entire impartiality. Both on reason and on authority, if such prejudice or feeling by a tales-man is not sufficient to prevent him from trying a case to which a Mexican is a party according to the law and the evidence, the talesman is competent. This principle was applied in a criminal case where the defendant was an Italian, and a juror testified that that was a race he was “not particularly fond of,” and did “not think much of, judging from those we have here.” Balbo v. People, [268]*26880 N. Y. 498. The- principle finds support in numerous criminal cases where the defendants were of the Negro race. See annotated case of Johnson v. State, Ann. Cas. 1912b, 965.
The defendant complains that the trial court abused its discretion in appointing an interpreter to interpret the testimony of the prosecuting witness, Mamie Johnny, the mother of the deceased, and of other Indian witnesses. Counsel insists that the witnesses could speak English, and that the court was therefore not authorized under the statute to appoint an interpreter. In this connection the record discloses that the court, after the witness, Mamie Johnny, had refused to answer questions propounded to her, stated:
“Let the record show that the witness has been on the stand and examined for a period of twenty minutes; that during that time all the questions that have been propounded no answers have been elicited; and that it appears from the appearance of the witness on the stand and from the observation of the court at this time of the witness that an interpreter is necessary in this case, and the objection to the use of an interpreter is overruled.”
The interpreter was used only to interpret for the witness, Mamie Johnny. The other witness, Bessie Johnny, was examined without the aid of the interpreter, except as to a few questions which she could not understand. The interpreter selected was one suggested by counsel for defendant. It also appears that the defendant was allowed an interpreter to keep check on the state’s interpreter. The record clearly supports the position taken by the trial court that an interpreter was necessary in the case in the interests of justice.
Many of the exceptions relate to adverse rulings upon questions propounded by counsel for the defendant to the state’s and his own witnesses to show motive and to affect the credibility of the state’s witnesses, particularly the witness, Mamie Johnny.
The homicide occurred between the hours of 9 and 10 o’clock on the night of September 15. The evidence shows that there were no eye-witnesses to the homicide other than the mother of the deceased, Mamie Johnny, [269]*269and her sister, Bessie Johnny. The deceased expired from the effects of a stab wound in her right breast before first aid could be had. Doctor Shaw, a physician and surgeon, testified that in pursuance to a call he went to that portion of Elko adjacent to and west of the Nevada Wholesale Company’s warehouse, and found there lying on the ground near the road an Indian woman, who had been stabbed to death, and standing near her another Indian woman, who had been stabbed in the upper right arm. The woman referred to as standing near by was Mamie Johnny.
The defense was that the mother, Mamie Johnny, inflicted the mortal wound, and that the defendant in no way participated in the crime. The defendant, as a witness in his own behalf, made it appear that Mamie Johnny was angered at the deceased and the defendant, because they were indebted to her in the sum of $15, and in a quarrel between the parties she drew a knife and struck the fatal blow. Counsel tried to elicit from Mamie Johnny on cross-examination the unfriendly relations between her and the deceased and the defendant, for the purpose of showing motive on the part of the mother for inflicting the wound. Counsel complains that the refusal of the court to allow him to go fully into the animus, bias, and prejudice of the complaining witness, Mamie Johnny, deprived the defendant of his right to impeach her testimony and to establish his defense.
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[266]*266By the Court,
Sanders, J.:
The defendant, Thomas Russell, a Mexican, was accused by information of the murder of one Mamie Johnny, an Indian woman, with a knife, on the 15th day of September, 1922, at Elko, in the county of Elko.
The defendant prosecutes this appeal from a conviction of murder in the first' degree, with the death penalty assessed.
When the case was called for trial the defendant made application for a change of venue, on the ground that he could not obtain a fair and impartial trial in Elko County. The application was refused, but the defendant did not except to the order of refusal. While the evidence in support of the application is contained in the record, it is not incorporated in the bill of exceptions. We, therefore, are not authorized to consider or pass upon the sufficiency of the evidence to support the order of refusal.
It is urged by counsel for the defendant that had there been no other serious error in the case, that of the trial court in denying and overruling the defendant’s challenge to the talesman, Richard F. Wood, on the ground of actual bias, would of itself be sufficient to warrant this court in remanding the case for new trial. The challenge is predicated upon the talesman’s bias against Mexicans. It appears that when both counsel for the defendant and the state had probed the tales-man as to his state of mind with respect to his bias [267]*267and feeling against Mexicans, the trial judge examined the juror with this result:
“Court. You answered counsel for the defendant that you did not like Mexicans ? A. I don’t like the Mexican race.
“Court. As a race? A. No, sir.
“Court. Now, I will ask you to consider carefully, and search your own mind, and answer me this question: Do you think that that feeling against the race would in any manner influence you for or against this defendant, unconsciously or otherwise, if you were chosen as a juror? Do you think that would enter into your mind or enter into your opinion, unconsciously or otherwise, and prejudice you against the individual on trial? A. No, sir; I have no feeling against this individual.
“Court. And your feeling against the race would not be carried as against the individual? A. No, sir.
“Court. And I will ask you this: Could you sit here and consider this case with the same fair impartiality and with entire absence of prejudice, the same as if it were a white man or any one else on trial in this case ? A. Yes, sir.
“Court. You are sure that you can do that? A. Yes, sir.
“Court. And your feeling would not in any way prejudice you against this defendant? A. No, sir.
“Court. The challenge is denied.”
Upon careful review and consideration of the entire examination, we find nothing which leads to a just inference, in reference to the case, that the talesman would not act with entire impartiality. Both on reason and on authority, if such prejudice or feeling by a tales-man is not sufficient to prevent him from trying a case to which a Mexican is a party according to the law and the evidence, the talesman is competent. This principle was applied in a criminal case where the defendant was an Italian, and a juror testified that that was a race he was “not particularly fond of,” and did “not think much of, judging from those we have here.” Balbo v. People, [268]*26880 N. Y. 498. The- principle finds support in numerous criminal cases where the defendants were of the Negro race. See annotated case of Johnson v. State, Ann. Cas. 1912b, 965.
The defendant complains that the trial court abused its discretion in appointing an interpreter to interpret the testimony of the prosecuting witness, Mamie Johnny, the mother of the deceased, and of other Indian witnesses. Counsel insists that the witnesses could speak English, and that the court was therefore not authorized under the statute to appoint an interpreter. In this connection the record discloses that the court, after the witness, Mamie Johnny, had refused to answer questions propounded to her, stated:
“Let the record show that the witness has been on the stand and examined for a period of twenty minutes; that during that time all the questions that have been propounded no answers have been elicited; and that it appears from the appearance of the witness on the stand and from the observation of the court at this time of the witness that an interpreter is necessary in this case, and the objection to the use of an interpreter is overruled.”
The interpreter was used only to interpret for the witness, Mamie Johnny. The other witness, Bessie Johnny, was examined without the aid of the interpreter, except as to a few questions which she could not understand. The interpreter selected was one suggested by counsel for defendant. It also appears that the defendant was allowed an interpreter to keep check on the state’s interpreter. The record clearly supports the position taken by the trial court that an interpreter was necessary in the case in the interests of justice.
Many of the exceptions relate to adverse rulings upon questions propounded by counsel for the defendant to the state’s and his own witnesses to show motive and to affect the credibility of the state’s witnesses, particularly the witness, Mamie Johnny.
The homicide occurred between the hours of 9 and 10 o’clock on the night of September 15. The evidence shows that there were no eye-witnesses to the homicide other than the mother of the deceased, Mamie Johnny, [269]*269and her sister, Bessie Johnny. The deceased expired from the effects of a stab wound in her right breast before first aid could be had. Doctor Shaw, a physician and surgeon, testified that in pursuance to a call he went to that portion of Elko adjacent to and west of the Nevada Wholesale Company’s warehouse, and found there lying on the ground near the road an Indian woman, who had been stabbed to death, and standing near her another Indian woman, who had been stabbed in the upper right arm. The woman referred to as standing near by was Mamie Johnny.
The defense was that the mother, Mamie Johnny, inflicted the mortal wound, and that the defendant in no way participated in the crime. The defendant, as a witness in his own behalf, made it appear that Mamie Johnny was angered at the deceased and the defendant, because they were indebted to her in the sum of $15, and in a quarrel between the parties she drew a knife and struck the fatal blow. Counsel tried to elicit from Mamie Johnny on cross-examination the unfriendly relations between her and the deceased and the defendant, for the purpose of showing motive on the part of the mother for inflicting the wound. Counsel complains that the refusal of the court to allow him to go fully into the animus, bias, and prejudice of the complaining witness, Mamie Johnny, deprived the defendant of his right to impeach her testimony and to establish his defense. In so far as the cross-examination of said witness and the direct examination of any witness in the case went to show the ill-will, animosity, or malice of Mamie Johnny toward the defendant, the court was quite liberal in its rulings, but, when the purpose of the examination disclosed an attempt to prove the innocence of the defendant through the guilt of Mamie Johnny, the court properly refused to permit such questions. It is competent for the defendant to show by any legal evidence that another person committed the •crime with which he is charged, and that he is innocent of any participation in it, but both on reason and on authority we are of opinion that remote acts, disconnected and outside of the crime itself, cannot be separately proved for such a purpose. 8 Ruling Case Law, [270]*270sec. 178, p. 185. A fortiori, such acts and conduct cannot be inquired into or' established by cross - examination. One accused of crime may show his innocence by proof of the guilt of another, but the evidence of such guilt must relate to the res gestae of the event — the perpetration of some deed entering into the crime itself. Levison v. The State, 54 Ala. 520; Carlton v. People, 150 Ill. 181, 37 N. E. 244, 41 Am. St. Rep. 346.
Nothing elicited by the questions overruled afforded any reasonable presumption or inference that Mamie Johnny, the mother of the deceased, struck the fatal blow. There is no evidence whatever which even tends to show that the wound upon the upper right arm of Mamie Johnny was inflicted by the deceased or was self-inflicted. The defendant left the scene of the crime before the deceased had expired, and was arrested the next morning on board a freight train rolling upon the Western Pacific railroad at Montello, in Elko County, and brought back to Elko. He claimed he left the scene of the crime at the urgent request of the deceased; that she did not want her mother prosecuted for the crime; that before he left her she stated to him that she was not much hurt, and that he did not know that the deceased had been mortally wounded until after his arrest. A more improbable defense can scarcely be conceived of. Although the defendant was allowed, practically without interruption, to tell his story and embellish it with all the unfriendly relations and ill-will of the complaining witness toward him, and of his affectionate regard for the deceased, they having lived together as man and wife for a period of more than six months prior to the homicide, the jury did not believe his defense. To our minds the rulings of the court upon the objections to the questions propounded to elicit motive on the part of the mother of the deceased for inflicting a mortal wound upon her own child were propér and without prejudice to the defendant.
As to the question of impeaching testimony, the-defense was allowed to show that Mamie Johnnie was a woman of immoral and dissolute habits, and to introduce testimony of a third party from which the jury [271]*271might infer that Mamie Johnny, prior to the homicide, had once attempted to poison the defendant. We aré unable to agree with counsel that he was unduly restricted and thwarted in his efforts to impeach the testimony of Mamie Johnny.
January 23, 1924.
It is complained that the court erred to the great prejudice of the defendant in allowing the state to exhibit in evidence the garment worn by the deceased at the time of the homicide. The garment had since that date been in the continuous possession of the mother of the deceased. We confess that we do not see the relevancy of the evidence, there being no dispute as to the identity of the deceased, the nature or character of the mortal wound, or how it was inflicted. It did not serve the purpose of honestly explaining the occurrence, and we cannot bring ourselves to believe that the garment was designedly offered to prejudice the defendant. We should dislike to impugn to any district attorney a dishonorable purpose in offering this character of evidence to arouse and inflame the passion and prejudice of the jury. The garment as evidence was entirely irrelevant and immaterial, and defendant was not prejudiced by its admission in evidence.
We find no error in the instructions to the jury, and none in the refusal of the court to give those requested by the defendant.
We have carefully examined all the evidence and maturely considered every proposition of law, and reach the conclusion that there is no reversible error in the record. The judgment, therefore, is affirmed.
On Petition for Writ of Prohibition
MeCarran & Mashburn, for Petitioner:
Diskin & Powell, for Respondent:
[274]*274By the Court,
Ducker, C. J.:
We are of the opinion that the application should be denied.
The basis of the application is that the jury, though returning a verdict of guilty of murder in the first degree in the case whereupon he was on trial, did not fix the death penalty, or any penalty, and that the j udgment of the court so fixing it is void, since there can be no such penalty adjudged by the court until the jury has by its verdict fixed it at death.
During the trial of the case the court gave an instruction to the effect that if the j ury return a verdict finding the defendant guilty of murder in the first degree, it would follow as a matter of law that the court would have to pass a sentence inflicting the death penalty, unless the jury also, by its verdict, fixed the penalty at life imprisonment, or failed to agree in fixing a penalty.
The authorities are divided upon the proposition presented, but in view of the fact that our statute is identical with the California statute, from which it was probably taken, we are of opinion that we should follow the interpretation placed upon the statute of that state long before our statute was adopted, wherein it was held that a verdict identical with the one in this case, under an instruction similar to the one complained of,, was valid.
Por this reason we deny the writ.