Lead Opinion
Thе appellant was convicted of murder in the second degree, on an indictment accusing him of the crime of murder, committed as follows: “ That said Daniel E. Harkin, of the county of Douglаs, State of Nevada, on the ninth day of November, a. d. 1871, or thereabouts, at Genoa, county of Douglas, State of Nevada, without authority of law, feloniously, willfully, and with malice aforethоught to kill William Hardwick, did, with his hands and feet, strike, beat and kick the said William Hardwick in and upon the head, neck, breast and body; then and there, by said beating, striking and •kicking, giving unto said William Hardwick several mortal strokes, wounds and bruises, in and upon the head, neck, breast and body of him, said William Hardwick; from which said several mortal strokes, wounds and bruises, given as aforesaid by said Daniel E. Harkin, he, said William Hardwick, died, on thе fourteenth day of November, a. d. 1871, at Genoa, in the county of Douglas, State of Nevada.”
The defendant demurred, on the ground that the facts stated do not constitute a public, offеnse, as known to our statutes. The demurrer was overruled. On the trial, the prosecution contended that the death resulted from a kick inflicted on the breast of deceased, and introduсed testimony tending to show that the defendant knocked the deceased down and kicked him on the face, and also on the breast. The defendant contended that deceased was not kicked on the breast, and that the wound or bruise on the breast resulted from a fall, which, it was testified, happened the day before the affray. The testimony tending to establish the fact of the kicking on the face was much stronger and more positive than that going to show a kicking on the breast.. The prosecution was allowed — and properly allowed — against thе objection of the defendant, to prove by physicians that they detected signs of bruises or ecchymosis on the breast. The point of the objection was, that the state had not shоwn that any wound or bruise had been inflicted upon the breast of the deceased by the defendant. In overruling this objection, the judge remarked, in the presence and hearing of the jury, “ that thеre was as much testimony that
" Nothing was then said further, and the argument then commenced.”
Had the language objected to occurred in the written instructions given to the jury, the use of it would, beyond question, have constituted such manifest error as to entitle the defendant to a new trial. The wit of man could scarcely devise a more palpable violation of that provision of our organic and statute law, which prohibits judges from charging juries in rеspect to matters of fact. ££ The great object of this provision is to prevent the judge from interfering with the province of juries by any statement of his own judgment or conclusion upon mаtters of fact; to guard against any bias or undue influence which might be created in the minds of jurors, if the weight of the opinion of the court should be permitted to be thrown into the scale, in deсiding upon issues of fact.”
The opinion here expressed was entirely uncalled for. It was not necessary, in order tо explain the ruling, to say anything about the relative weight of the testimony. It.was enough that there was testimony sufficient in law to authorize the jury to infer from it the fact that the deceased sustained the injury in question at the hands of the defendant.
The error, if curable, was not cured by the remarks made at the close of the testimony. At best, they left the matter where it was before. There was no retraction оf the opinion that the -testimony tending to prove the two facts referred to was equiponderant; but merely a disclaimer of any opinion as to the absolute weight of such testimony. As wе held in State v. Ah Tong, ante, the express statement that the whole matter was for the jury to pass upon was insufficient to obviate the effect of the opinion previously expressed.
Moreover, it is difficult to give to these remarks any pertinency whatever, without regarding them as an oral instruction to the'jury; and, so considered, the fact that they were not reduced to writing
Of course, we imрute no want of fairness or impartiality to the learned judge before whom this case was tried. Such inadvertence as this evidently was will sometimes occur in the hurry of a trial, with whatever purity and ability justice is administered. But when it does occur, the injury to the defendant demands redress as imperatively in the case of a mere inadvertence, as in case of a willful evasion оf the law; and, we think, it is shown that to tolerate the former would necessarily result in giving free scope to the latter.
The demurrer to the indictment was properly overruled. Rejecting as surplusage the words “ to kill William Hardwick,” an indictment good on general demurrer remains.
Nothing is gained, howevеr, by a departure from approved precedents and forms. In this case, for instance, days of labor spent in investigating and arguing the sufficiency of the indictment would
The judgment and the order refusing a new trial 'are reversed, and the cause remanded for a new trial.
Concurrence Opinion
I concur in the judgment upon the reasoning of Justice Garber. Upon the other point discussed, I express no opinion.