State v. Hymer
15 Nev. 49
Nev.
1880
Check Treatment

Lead Opinion

By the Court,

Hawley, J.:

1. The court did not err in refusing to strike out all thе 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, hе should have specified that part which he considered irrelevant and immaterial. His mo*54tion ‘‘to strike out all the testimony оf 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 murdеr 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 contаins no substantial error. ”

3. The court did not err in giving respondent’s instruction number five, relative to the weight and effect to be givеn 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 instructiоn “ 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 а day for carrying its sentence into execution.





Concurrence Opinion

Beatty, C. J.,

concurring:

In addition to the reasons stated by Justice Hawley, I think the ruling of the district judgе, on the motion to strike out the testimony of the witness Collins, is sustainable on the ground that the particular testimony complained of was material and relevant. It was to the effect ‍‌​​​‌‌‌‌‌‌​​​‌‌​‌‌‌‌‌​‌​‌‌‌‌‌‌​‌​​​‌​‌​‌​​​‌‌‌‌​‍that about three hours before the killing, the defendаnt, while treating a crowd in a bar-room, made these remarks: “ It is the first time I have been drunk since I have been in town; I got drunk just tо kill two or three s-s of b-s in this town to-night, and I’ll do it, too.”

It was for the jury to determine, from all the circumstances, whether this was merе idle vaporing or a correct expression of the defendant’s state of mind. If it was the *55latter, ancl there wаs any circumstance from which they might infer that the deceased was one of the persons intended, it should exprеss malice. The bill of exceptions contains but little of the testimony, but from that little, and the instructions given to the jury at the request of the defendant, it sufficiently appears that he provoked the difficulty with the deceased, and that the dеfense was, that he had in good faith endeavored to retire from the contest before firing the fatal shot. The fact, thus appearing, that within three hours, or thereabouts, after threatening that he would kill two or three persons in thаt town that night, he killed the deceased in a difficulty which he himself provoked, is certainly some evidence tending to shоw that he had the deceased in his mind at the time he uttered the threats.

Precisely the same sort of general indefinitе threats— threats against “two or three men” — that were proved in this case, were proved in the case of The State v. Barfield, 7 Ired. 303, fоr the purpose of showing express malice, and the. defendant was convicted of murder. The judgment, it is true, was revеrsed, ‍‌​​​‌‌‌‌‌‌​​​‌‌​‌‌‌‌‌​‌​‌‌‌‌‌‌​‌​​​‌​‌​‌​​​‌‌‌‌​‍but not because the evidence was deemed-irrelevant or immaterial, for the court held on the cоntrary that it was material, if from it and other circumstances the jury inferred that the deceased was one of the persons threatened (p. 306). The truth was, however, that all the circumstances proved in that case tended very strongly to show that the threats which werе made more than a month before the homicide, had no reference to the deceased; and the state’s attorney expressly admitted in the trial that the deceased was not one of the persons intended. The court, notwithstanding this admission, instructed the jury that the evidence in regard to the threats might be considered in determining the question of malice. This instruction, not the admission of the testimony, was held to be error. The decision, in fact, both by expression аnd implication, recognizes a doctrine that seems to me entirely reasonable — that in order to render threats material to the issue in prosecution for murder, it is not essential that the deceased should be actually nаmed in. *56connection with the threat. If there are circumstances tending to show that he was the person intended, they, together with the threats, must be submitted to the jury, under proper instructions. The circumstances of this case were, in my oрinion, fully sufficient to justify that course.

The threats were made by defendant about dusk on the fourth of May; they were directed against persons in that town, and were to be carried into execution that night. The killing took place in that town between ten and eleven o’clock the same evening, and was the result of a conflict provoked by the defendant. There was in fact a literal correspondence between the promise and performanсe, and the evidence was sufficient prima facie to warrant the jury in finding that the man killed was one of ‍‌​​​‌‌‌‌‌‌​​​‌‌​‌‌‌‌‌​‌​‌‌‌‌‌‌​‌​​​‌​‌​‌​​​‌‌‌‌​‍those whom the defendant had аvowed his purpose to kill.

It is not denied in State v. Walsh, 5 Nev. 315, that where a person not named is threatened, his identity may be proved by circumstanсes — the implication is that it may be; but it was held that the facts proved in that case did not tend to show that the threats (if thеy were threats to kill) were directed at the person killed. It is not necessary to question the correctness of that conclusion in order to hold that in this case the evidence complained of was properly submitted to the jury, for here the circumstances were much more significant.

For these reasons, in addition to the reasons stated by Justice Hawley, I concur.