15 Nev. 33 | Nev. | 1880
By the Court,
Appellant was convicted of assault with intent to kill one N. S. Gallagher. He appeals from an order overruling his motion for a new trial, and from the judgment. William Watson, one of the jurors who tried the cause, when questioned as to his qualifications to act as a juror, answered that he had not expressed an unqualified opinion as to the defendant’s guilt or innocence. One of the grounds upon which a new trial was asked is: “ The misconduct of Wil
The first question presented is, whether the court erred in refusing to grant a new trial upon the ground stated. It may be admitted that a challenge for implied bias would have been sustained had the alleged expression of opinion been admitted by Watson, or had it been otherwise satisfactorily proved before the juror was sworn; but it by no means follows from that fact, under our statute, that the court erred in refusing to grant a new trial upon proof, after verdict, of the incompetency of the juror, although neither the defendant nor his counsel knew the facts alleged in the affidavit, at the time the jury was impaneled. Many cases may be found in the reports of our sister-states where exceptions to the competency of jurors were made after verdict, for the purpose of obtaining new trials, aud they show that the opinions of courts have been anything but harmonious. But we are unable to find a case where it has been held error to overrule such exceptions, under a statute like ours, which, in substance, expressly
Section 420 of the Criminal Practice Act (Stat. 1869, 67), provides that, “ the court in which the trial is had upon the issue of fact, has power to grant a new trial where a verdict has been rendered against the defendant, upon his application, in the following cases only* * * The ground urged, now under consideration, is not among the cases stated.
Section 334 of the same statute (Stat. 1861, 469) provides, that a challenge to an individual juror “must be taken when the juror appears, and before he is sworn, but the court may, for good cause, permit it to be taken after the juror is sworn, and before the jury is completed.” The evident design of the legislature in enacting these statutes was to cut off the exception now made, after verdict.
The constitution secures to an accused person the right to be tried by an impartial jury, and the legislature has no right or power to deprive him of such right; but it can regulate its administration by determining and declaring, in a reasonable way, when and how a juror’s partiality shall be ascertained. It is not, and can not .be, denied that the regulations prescribed by the legislature for the impaneling of trial jurors in criminal cases are just to the accused, and that they are well calculated to secure to him a trial by a fair and impartial jury. Under a similar statute, the point now urged was decided against appellant, in The People v. Fair, 43 Cal. 146, and People v. Mortimer, 46 Id. 120.
Besides, if, under the statute, appellant could obtain a new trial by means of an exception to the competency of a juror, made after'verdict, it was incumbent upon him to show, by affidavit or otherwise, that the objection was unknown to him or his counsel at the time the jury was impaneled. (Parks v. The State, and Eastman v. Wight, 4 Ohio St. 234, 160.)
Again, although, upon the hearing of the motion for a new trial, the state did not offer any affidavit or proof contradicting the affidavits of Trask, still the record shows that, the juror Watson, upon his voir dire, testified that he had
The court instructed the jury in part as follows: “An assault with intent to kill is an unlawful attempt, coupled with a present ability, to kill another person under such circumstances as would constitute an unlawful killing, had the death of the person assaulted actually resulted. * * * * If you believe from the evidence, beyond a reasonable doubt, that the defendant, M. Marks, did make an assault upon the person of N. S. Gallagher, at the time and place named in the indictment, and under such circumstances that, had the said Gallagher died from the effects of the assault, the offense would have been manslaughter, then you should find the defendant guilty as charged in the indictment.”
The instruction was correct. (State v. O’Connor, 11 Nev. 423.)
Appellant also objects to the following instruction: “The jriry are instructed that, if they find that the defendant, M. Marks, did assault the person named in the indictment, to wit, N. S. Gallagher, with a deadly weapon, in such a manner as was calculated to produce the death of said N. S. Gallagher, the law presumes that such was defendant’s intention, and throws upon him the burden of showing facts in mitigation, justification, or excuse.”
It is claimed that this instruction placed the burden of showing mitigation, justification, or excuse upon defendant, “ without regard to whether the evidence on the part of the prosecution, did or did not, sufficiently establish that defendant was justified in committing the assault.” The statute (Sec. 33, Stat. 1861, 61) provides: “The killing being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the
In other words, the killing being proved, the burden of proving the crime to be manslaughter instead of murder, devolves upon the accused, unless the proof, on the part of the state, sufficiently manifests that, the crime committed only amounts to manslaughter; and, second, the killing being proved, the burden of proving circumstances that justify or excuse the homicide, and consequently acquit and discharge the defendant, devolves upon him, unless the proof on the part of the prosecution sufficiently manifests that he was justified or excused in committing the homicide. It is plain that, if the state’s proof sufficiently shows that the homicide amounts to manslaughter only; or if it shows that the defendant was justified or excused, then the burden of proving circumstances of mitigation in the first case, or that excuse or justify in the last, do not devolve upon him.
But let us see whether, from the entire charge, the jury could have understood the instructions as they are construed by counsel for appellant. It is stated in this court, that where, from the entire charge, it clearly appears that, the jury could not have been misled by the language objected to, the judgment will not be disturbed. (State v. Donovan, 10 Nev. 36; State v. Raymond, 11 Id. 98.)
The jury were instructed that, it was the intent to kill that constituted the gist of the offense, and the intent to kill must be proved; that the law in the first instance presumed the intent to kill to be proved when a person used a deadly weapon upon the person of another in a maimer likely to produce death, tinless the facts shoum on the trial of the case toere sufficient to justify, mitigate, or excuse the act.
The word “mitigate” should not have been used, but its use was favorable to defendant.
The court instructed further, that where an act, in itself indifferent, becomes criminal if done with a particular intent, then the intent must be proved and found; but when the act is in itself unlawful, the proof of justification or excuse lies on the defendant: and. in failure thereof, the law
We are satisfied, from the whole charge, that the jury could not have understood the court to instruct them that the burden of proving circumstances of mitigation, justification, or excuse, was upon the defendant, notwithstanding such circumstances may have .been sufficiently shown by the state. But, in truth, the court would not have erred if it had wholly omitted to instruct the jury that the defendant was entitled to the benefit of any evidence given on the part of the State tending to prove justification or excuse; because there was not a particle of evidence on the part of the state having such a tendency. On the contrary, the state’s evidence proved a stabbing without a shadow of excuse or justification, and with scarcely a pretext of provocation.
The judgment and order appealed from are affirmed.
