State v. Harrington

9 Nev. 91 | Nev. | 1873

By the Court,

Belknap, J.:

The defendant was convicted of murder in the second degree upon an indictment accusing him in the following manner of murder: “That the said James Harrington, in the town of Pioche in the said County of Lincoln, State of Nevada, on the sixth day of July, a. d. 1873, or thereabouts, without the authority of law and with malice aforethought did shoot one John H. Lynch with a pistol, and from the wounds produced from the shooting the said John H. Lynch died in the said town of Pioche, County of Lincoln, State of Nevada, on or about the eleventh day of July, 1873.” This indictment, by fair and reasonable intendment, charges the defendant with the killing. Its form is argumentative, and this would have been a fatal defect upon special demurrer. The objection, however, was not taken; and the imperfection being of form and not of substance, is cured by the verdict.

After the defense had declared its evidence closed, the court allowed the prosecution to introduce further evidence in chief. The bill of exceptions shows that the defendant’s counsel stated to the court that he had the .additional evidence of a dozen witnesses upon the point to which the prosecution’s evidence was directed. These witnesses were not introduced, although permission was requested and obtained for that purpose. The proper practice is for the State in the first instance to introduce its evidence in support of the indictment, after which evidence for the defense should be heard and then follows evidence in rebuttal. Neither side should withhold evidence upon the original cause. But in furtherance of justice the district court may in its discretion allow a departure from this order of proof and permit a re-opening of the case. Stats. 1861, 472. This discretion should be exercised for good reasons only and not to the prejudice of the adverse party. No injustice or abuse of discretion is here shown. In the absence of such showing we cannbt interfere, but must conclude that the discretion was properly exercised. 1 Mon. (Ky.) 115; 29 Ill. 459; 48 Ill. 282; 36 Mo. 493; 4 Cal. 274; 3 Mich. 77; 10 Mich. 155; 18 Iowa, 290; 13 Iowa, 103.

The judgment and order refusing a new trial are affirmed.

"Whitman, C. J., did not participate in the foregoing decision.