State v. Millain

OE NEVADA, SUPREME COURT 1867. 409 of Nevada v. Millain. The State MIL JOHN NEVADA, Respondent, THE STATE OF Appellant. LAIN, precluded finding an indictment because law a was not from

At common Grand Juror prosecutor. was either a witness or disqualifications Juror, a distinctly what shall of Grand fixes be the Our statute prescribes disqualify acting from can one nothing else than what the statute as such. prosecutor prefers party suspects a against A is one who an accusation whom he party subpoena guilty.” appears response prose- A to be who in cutor, only a witness. presence jury session, A drawn was in Court and whilst the Court its officers, open Court, must be held to have been drawn in it was whether done any usually the room where the Court sits or in other room of the Court building. House suspicion juror A mere on the mind of a that the defendant is does not dis- qualify petit him sitting jury, especially suspicion mainly on a if prisoner’s arises from the subjected examination to which he is counsel qualification touching juror. only unqualified opinion as a It is that dis- qualifies. “Unqualified opinion or belief” commented on. The action of the lower Court in granting refusing change is a venue matter judicial discretion. If that duty discretion is abused becomes the of an appellate Court to afford relief. Two circumstances should grant influence Court to a change One, of venue. impossibility obtaining impartial a fair jury; other, such a state public .against prisoner likely excitement as would be and intim- overawe jury. idate even a fair prisoner parties The fact that threats against were made who were not influential, shown to have been either numerous or was not sufficient to show danger being there intimidated. Where a defendant on his motion for a change of venue showed a state of facts tending strongly to the conclusion that jury, he could not obtain a fair it was not error the Court to withhold its decision the motion until an exam- jurors attendance, ination had then in being satisfied from such obtained, examination that a fair could be to refuse to make the order for change of venue. requirements The short form of indictment used this case held to conform the of the statute. person

That clause in the Constitution of the United States which declares “No capital shall be hold for a answer or otherwise infamous crime unless on presentment indictment,” prescrib- Legislatures doesnot restrict the State ing requires Jury form of the indictment. It that a Grand should in express some form approval prosecution party put its before a can be on trial for such offense. COURT OP Nevada Millain.

The State of simple good indictment which is to sustain Under the statute this State charge higher crime murder, equally good sustain a of the of is to conviction degree. in of murder first the subject proceedings, and power The the of criminal Legislature over has absolute fit, etc., except may prescribe indictment, as it proceedings, of sees such forms particulars power some in those its is restrained clause State whore nothing is in of those instruments or National There either Constitutions. party prevent Legislature enacting that a which can the indicted sim in may guilty degree. first pie murder found of murder the be designate Upon for unlawful homicide philosophical principles indictment should distinctly separate committed, staling the facts which grade the of the offense Legislature in its grade; the but the charged from next lower the offense distinctions, dispense allowing general a indictment for all discretion with jury grade to offense in homicide, requiring the find the of the unlawful verdict. their felony in property after the is committed the is found soon fact stolen felony party guilt. is of But this of a accused of the some evidence his hands proof may strengthened character, amount and greatly or weakened circumstances, means, occupation, etc., property; value of defendant. prisoner guilty they must find the of murder charge It is to in not error testimony acquit, where is degree, first or second there no offered which any any fact or circumstances which reduce degree in tends to show could manslaughter. to offense following language if not correct is too favorable to defendant: charge A in day January of you that about the nineteenth believe from the evidence “If Storey aforethought, County, malice either last, Virginia, at the defendant with unlawfully premeditation, did kill express implied, and with deliberation life, it her will constitute murder of first Julia Bulotte with intent take you acquit.” you find; degree, so otherwise will should possession recently goods stolen shall be held as law that the of common rule expla- is until guilty, gives accused he some sufficient evidence to show innocence, his is possession consistent with not weakened but nation of allowing testify in strengthened our statute the accused to rather own behalf. testimony tending to show the defendant an offense is Where there charged, they it is not grade than the one error instruct the a lower acquit If however there prisoner guilty charged must find the him. is ques- testimony grade, to a lower the whole tending to reduce the offense jury. should submitted tion opinion by Judge is not when expression about evidence error A mere Judges which the distinctly sole as to the facts about jury are told are the expressed. opinion is “implied” instruction, synonymous in with as used inferred,” as used The word in the definition murder. in the first Length ingredient of time for deliberation not an essential murder SUPREME COURT OF NEVADA, 1867.

The State of Nevada Millain. degree. It is if design sufficient to murder was striking formed before of the fatal blow. preconceived Where design felony murder, there is to commit some than attempt, part felon, proves the result of on unintentional premeditated fatal being, felony human malice make afore- thought at willful, common law. But this deliberate, premeditated would not be life, killing statute, under our because of the absence intent to take following “By definition reasonable doubt is not erroneous: reasonable ordinarily you your doubt is meant govern such a one as would or control ordinary pursuits business transactions of life.”' When an given by instruction has been intelligible language clear and Court any point proper qualifications, the case all it is not error to refuse repeat qualified the same instruction in parcels, properly detached applicable made jury. state the evidence before the formerly grounds stood, challenge Per J. —As the six were allowed Johnson, Fourth, Grand Jurors. The three last were as follows: that he is prosecutor upon charge charges a he is a against defendant; fifth, or that prosecution part process, witness on the has or- been served undertaking such; bound an sixth, expressed as a decided that he has opinion that the defendant is is held to of the offense for which he answer.” The insertion of the a fourth and fifth clauses shows distinction prosecutor. striking taken between law witness The amendment of the scope clause, out fifth and anything sixth cannot to the be held to have added and effect of the fourth clause. objection the Even under former law the have been The witness insufficient. opinion prisoner’s did not show that Neither guilt. he had formed a decided subpoenaed appear is it shown a witness that he was bound to as or otherwise for in prosecution, appear the nor fact does it he was sworn as a witness for prosecution. challenge panel jurors writing, specifically stating trial in A to the must be the challenge facts the grounds challenge on which based. in judgment this a a criminal because the evidence Court reverse case Can insuffic- any evidence, a ient If it become to sustain the verdict ? there be does not merely matter of fact and law ? opinion, per J. Dissenting Lewis, sufficiency opinion weight as the Judge give error for a his to the to It is to give opinion testimony. Judge a should not In a trial murder prisoner guilty of murder in the first jury that should find the to the question acquit. grade is a of fact which should degree, or The of the offense entirely jury. be left to the has shown, presumption arises that a murder been killing has been When presumption degree it is in first is no murder But there committed. only manslaughter, If defendant claims it is in a case of this kind. grade circumstances, reducing the proof him show the thus devolves on degree, it is proseeution If claims that murder in the offense. first aggravating facts. devolves show State NEVADA, 1867. OF COURT

412 Nevada The State of “ testimony this case language is erroneous : The following in the An instruction same, deceased, portion of the or some property of the to show tends murder, subsequent alleged at time possession of the defendant property that the found quite instruction assumes date.” This at recent “ expression prove” tends to property was, of deceased. had been property tendency to show when of the evidence applies to the questions ownership. apply found, but does District, Judicial Storey in the First a trial for murder This . Hon. Richard presiding. Rising, County, Court. facts are stated opinion fully a brief O. M DeLong, which, filed owing Appellant, felt and the interest involved principles importance alteration, except here insert without case, community — is omitted the same of facts statement preliminary of the Chief Justice. appearing opinion he has It cause of is good grand juror, exception of a whose as to the formed and guilt party expressed of the grand the consideration case bewill probably presented 386; 313; 6 Jeioett, 3 Wend. Wend. citing (People inquest.” Burr’s 395; & 120; Rawle, Am. Law, Crim. Serg. Wharton Trial, 38.) be good the common By grand jurors lawful men —that serve is, men free from all might who objections, Law, 307.) case.” Crim. petit jurors Chitty (See “ There exists same for for favor right challenging grand as the Trial, Burr’s petit jury.” (1 38.) statute of this State to individual 1866, 49,

By p. challenges are limited that act be constitu- four, grand jurors provided tional. The fourth subdivision that statute reads follows: “ That he is on or prosecutor charge charges against .defendant.” The did the consideration is: What question ” mean the term ? clear It Legislature by prosecutor quite did all State, not mean of the name whose they people nor criminal proceedings prosecuted, prosecuting attorney did mean such whose county; person persons evidence prosecution was based. OF NEVADA, COURT 413

The State of Nevada is no one There reason in position who any person, State, is to be called as for the should be allowed witness another; hence the statute more than if it grand jury means, means at exclude all that class all, anything persons on a of a case in sitting grand during investigation are, be, witnesses the State. expect Black, D. in this grand challenged, comes juror panel clearly the rule; within hence the Court erred in not allowing challenge juror. of this

The common authorities do not between causes of distinguish Bacon’s challenge grand petit jurors. (5 Abridg. 353.) II. Court erred the defendant’s sustaining challenge of trial as the names panel were jurors, put box Court drawn open required 1866, law. by (Statutes 6, Sec. p. 192.)

III. The Court erred allow inter- refusing challenges the defendant for bias to the posed by named, implied jurors’ D. B. J. L. E. Black, Potter, Monahan, respectively: Morgan, L. Alexander, 340; and L. D. 470, Sec. Young. 1861, (Stat. p. Gehr, 8 Cowan, ; 6 ex Cal. 362 562, v. parte Vermilyea; People 132; v. 16 lb. lb. Woods, v. 636.) Reynolds, People People The Couft IV. erred in a motion for refusing grant change 1861, 407, of venue. Secs. 306 and (Stat. p. 308.) statute is a This literal Act, California has been copy construed the Courts of that State to Court vest with a discretion in the of that reasonable an abuse premises; discretion is error. v. 18 Cal. (People Mahoney, 186.) Court’s discretion is to be exercised established well within rules. It is a sound and not an legal equitable, arbitrary discretion, it is to exercise.” v. required Vermilyea, (People 398; Cowen, 1001; & Trials, Graham Waterman on New People 1Well, Hill, 182.) the examination the Court of affidavitsfiled challenge We of this and the motion, admissions of record connected support made therewith light prosecuting attorney, by cited; authorities which we all due assert respect that the books fail to furnish case fact, as a will where parallel OP COURT

414 Nevada The State of the action of the Court sustained. been refused and motion has Court, fact to the attention call following We especially to wit: all motion, was made

Wo counter showing upon therefore connection with and admitted in it, matters averred in support of true. are to be taken averments strictly those Court doubt but appeal be no upon There can of the' action Court below over possesses power revisory ; 5 Pr. Lee, 5 Cal. 353 25.) this matter. How. (People the demurrer indict- The Court should have sustained V. this action. ment in is insufficient insist that the indictment

We war- respectfully wherein it fails rant or sustain a conviction for charge felony, at human or in the State Julia Bulette being, peace the defendant did act the time of killing, It does not contain a malice .or aforethought, express implied. or the offense, acts circum- statement of constituting particular Act, 234-6, 286, 430, stances the offense charged. (Practice 431 and 433.) state the facts

The indictment upon jmosecution should for his defense. so that accused relies, jorejoared (6 281; 208; 172, 228, Crim. Law, Chitty’s Cal. 236 and ; 332; 9 Law, Crim. Cal. Law, Crim. 873 Bishop’s Wharton’s and 54.) letter of the

A must within brought indicted very party ; Practice, 4, on Crim. Case Statute. Barber p. Ileydon, (2 Co. A.) “ “ is one of Barber, the sub- averment,” following says ‘ — 54, one F. F.’”' Sec. In stantial averments: (Page Prac.; C. of Indictment also, Murder, Barb. see Form Sec. 541, Id.) this contains an averment

It will be seen equivalent a human The reason the term being. why charging Common indictments for embraced Law being” human definition of murder because the Common does murder is Law Archbold, the term human 831.) contain being.” (1 SUPREME COURT OE NEVADA, 1867. 415

The State of Nevada 11. The difference between the Common definition and the Law “ statute definition is this: at Common the term a Law reasonable ” “ alive being instead of the term used, human being” which is in our statutes; hence the Common Law indictments mention the “ term did live.” Cr. Prac. (2 Bishop 543.)

As counsel, feel safe in we saying at or in precedent can practice be found to in an indictment for mur- justify omitting der the averment it was and done.” ivillfully maliciously Pouts, v. 4 (.State Green, 500; 23 U. S. Dig. 289.) [Iowa] We doubt that our statute means (critically reviewed) warrant the averment; but if it is so intended its constitution- dispute force, for the reason ality that murder binding offense being at Common Law, the must be set out as at Common fully offense Law. 348; Cr. P. Sec. 13 (1 Bishop Enoch, Wend. People 159.)

Technical terms used in a statute must be set forth in an always indictment; but them forth alone is not sufficient. setting always Cr. (1 P., See. Bishop 373.)

The indictment must an intent to kill. Ohio charge (10 [N. S.] 459 598; 14; 21 U. S. Sec. Dig. 283, P., Cr. Sec. Bishop 280.)

VI. The Court erred in the motion in arrest refusing judg- ment and for a trial, new as the indictment did not charge crime of murder in the first and did not warrant verdict degree, rendered in this case and the thereon. judgment pronounced, Murder in the first is defined our statute to be all degree by murder shall be means of or perpetrated poison, lying wait, or torture, other kind of willful, deliberate, pre- meditated- or shall committed in the killing, perpetration or' attempt arson, or perpetrate any rape, robbery, burglary, shall be deemed of murder of the first and all other degree; kinds of murder shall be deemed murder of the second degree.” as this

Now indictment fails to this defendant charge having with committed the crime of murder means of or poison, lying or wait, or torture, or perpetration attempt perpetrate any arson, the indictment rape, inasmuch as robbery, burglary, fails to him charge willful, deliberate, with any premeditated NEVADA, 1867. OE COURT v. Millain.

The State of Nevada that it is self-evident we hold done, that it was feloniously killing, the crime the defendant charge that it does therefrom degree. first murder amend- Article V I, Constitution, State 8 of Article

Section States, that no the United provide Constitution ments crime, infamous unless or other be tried capital shall person These etc. of Grand Jury, or indictment on a presentment their com- of those instruments the framers used by words were to has no our State power sense; hence Legislature mon law the common be other than .what indictment shall that an provide at com- Indictment definition of an Eor indictment. law says “Indictment;” 2 Cr. P. title 1 Bouv. L. Die. law, Bishop see mon 6, 8 inclusive; Secs. and 289, 7, 23 U. S. 562-597, Dig. Secs. ; ; 1 Wharton Am. Cr.- 400 Law, 4 Green’s 500 9, citing [Iowa] 242 and 3. The words “malice Law, Cr. aforethought” Chitty meant to kill. signify person killing do (2 Bishop 561; Law, 2 592, Cr. The 742.) Cr. P. Sec. words Bishop ” “ do not malice embrace in substance aforethought words 9; 289, deliberate U. S. Sec. premeditated.” (23 Dig. 236 Practice 234 and Criminal Act, 1861,460 Secs. Statutes 461.) this case circumstantial, evidence did

VII. being wholly all the the verdict. evidence as and but Taking true, warrant one fact established doubt was reasonable case, beyond fact was, and that the defendant found in possession of the deceased. some property now, the sake of correct, For argument taking without quali- laid fication, the rule down Greenleaf in his work on Evidence, by embodied Ill, 31, Sec. Court in its

Vol. charge tried in this case, rule, 6) (pp. propose'to unwarranted, and the Court in not show verdict erred trial. new granting arresting judgment the rule under above cited, must be admitted the mere It pos- the deceased, uncorroborated session goods by any the defendant’s show in itself guilt, evidence insuffi- tending a verdict. warrant cient of the rule let above us examine and the .light quoted,

Now,.by COURT OE State of Nevada v. Hillain. see other facts and circumstances what necessary in this order to verdict case. to establish warrant prosecution if such facts or circum- And us farther examine and see then let stances were proven. it behooves The rule In connection with prose- possession says: denial to add other such as pos-

cution proof previous or his refusal explanation session party charged, give any or of the manner of fact, false incredible accounts giving of it, or that he or to has attempted dispose acquisition, etc. absconded,” that he fled or marks, its has destroy one An there is not scin- examination of the record will show circumstances, tilla of either of these tending testimony prove He of the goods. the one of his disposition except attempted nor did neither refused to of his explanation possession; give of his obtaining of the manner false or incredible account give any them; he them; marks did he nor attempt destroy any did not flee abscond. that cir- it it correct rule take is a we granted

Now the inno- tends to occurred, cumstance to have which prove proven must be to accused, cence of the weigh strongly allowed party if his it to him favor as be against tending would allowed weigh to his prove guilt. this defendant words,

In other if evidence show tending be flee would evidence of after this murder fled attempted his his the evidence of would tend to remaining guilt, certainly And also contend for the rule innocence. we where his prove and tends to show another guilt, one circumstance is which proven be one should innocence, tends show weighed against both due consideration. be other, given of the of the In the circumstance attempted disposition this case defendant, to minds tends rather our prove goods by of the in this he case, than the defendant having innocence guilt of the in this to make disposition attempted goods community. case the whole circumstances this exclusive

Indeed, innocence, indicate rather possession property insanity That this defendant should remained than have guilt. sanity had he committed such an atrocious in the where community SUPREME COURT OF NEVADA,

The State of Nevada there to his crime, was obstacle when flight, kept evidence of his concealed in an guilt possession only only trunk, in room in a access, insecure where all had kept name a cloth his own covered with was public building, ink; Hill, in indelible Gold disposing dress-pattern it in a house of ill-fame in the same his attempted disposition have it might anticipated would place, reasonably where been that house consorts and being recognized, frequented by ; his sale of the diamonds at the deceased lead- companions store in the and his City Virginia; pledging ing jewelry town, at a same deceased’s pawn-broker’s leaving watch the murder of the identical where a stone’s throw place within that it unredeemed, with knowledge committed, leaving sale; form a combination in a window placed public leads the mind to conclusion, that irrresistibly of circumstances or that he insane, a fool or was the Millain either that John and that than murderer, knowledge without real dupe obtained, to share in the improperly that the were perhaps goods to take murderer of and the real charge induced fruits he of the same. to dispose attempt the un- sufficient far from satisfy is certainly

Such evidence of Julia Bulette. the murderer Millain was mind that John biassed other reasonable hypothesis to exclude fails It entirely certainly all of the cir- contrary, the defendant’s guilt; than that of the defendant true, possibly cumstances proven innocent. but probably of that of this to a consideration portion come We now

VIII. undoubted right us our furnishes judgment case which judgment. a reversal of the Court is, allude charge subject asked us. instructions certain give and its refusal

jury, itself as a whole —inconsistent is insufficient within The charge of and law, usurpa- errors with in pregnant and illogical detail — in instructing functions of the jury tion of usurping power in matters of fact. them and present charge, extract portions here several

We of our assertions. them to this Court proof 419 COURT OF of v. Millain. The State Nevada “ Your verdict uses this the Court language:

In charge in the first charged be in of murder degree must writing, guilty in the second of murder indictment, degree, in the or guilty Record, 128.) (See guilty.” : occurs this language

In another charge portion “ nineteenth that about the the evidence, If believe from day you the defendant at last, of Virginia, County, January Storey either with delib- malice implied, with aforethought, express kill Julia Bulette, did with eration unlawfully premeditation, the first murder of degree, constitute life, intent to take her will find; Record, will so otherwise acquit.” (See should you you 128.) : its charge the Court uses this language

In another place an offense, defendant of doubt believe the If you can of convict lowest degree degree, 'only you in the one murder crime charged, within grade first Record, 124.) second degree.” (See have errors for in law,

Here direct array palpable instructed one terms manslaughter jury place in an murder, crime and not included indictment grade 9 error, Dolan, 588; this is Cal. for murder. That see v. People 459; 584 21 U. 590; Crim. Pr. 10 Ohio N. S. S. Bishop’s 284, Sec. 40. Dig. this

Under were verdict finding charge jury precluded and even murder in the second manslaughter, degree. force of instruction to direct the to send the street; or the all other alternative defendant gallows, if denied charge. they obeyed left to the terrible stake of death or

The defendant liberty, the latter. hope is a fact. Belencia, Cal. Degree question (People 544.) also erred

The Court instruction unex- giving following : plained the first if the fact of alone, In stands place, possession wholly its circumstances, unconnected with value or persuasive for the real criminal slight; power very placed artfully SUPREME COURT OE NEVADA, 1867. State of Nevada v. Millain.

the articles in or on the of an innocent possession premises per- the better son, to conceal his own guilt. “ It will for the to add of other proof necessary prosecutor cirсumstances indicative of to render the order naked guilt, pos- session of a conviction; to a such as available thing previous denial of the or Ms to give possession party charged, refusal etc.” fact, Record, 126.) any explanation (See that This led the to conclude language unexplained jury defendant’s to when failure these things testify explain held out to him an so, do accompanied by proof opportunity them verdict possession, would warrant finding guilty. of the Thus charge overcame unexplained fairly portion of the defendant where were instructed the failure should an evidence of not be considered guilt. testify jury This it is made the inferable fairly charge self-contradictory, induced to find the were and under it it, misled were defendant correct from his However failing testify. under law, doctrine be at common inajiplicable may clearly case statute, our and that it did the defendant in this gross injustice there can no doubt. uses language: In another in the the Court place charge

“, for such It him to and account posses- devolved upon explain him, etc.” sion by give

Now construction ask, what than that the Court meant to instruct them this language on stand, witness, the defendant it devolved explain of these he became things. how possessed of Art. VI, 12, This violative Sec. charge portions many of our ‍​​​​​​​‌‌​‌​‌​​‌​‌​‌‌​​​​‌​​‌‌‌​​​​‌​​​‌‌‌​‌‌‌​‌‍shall not Constitution, State which provides Judges state the testi- to matters of fact, charge' respect juries 1864-5,113, Sec. also Stats. and declare (See law.” mony effect.) same 23 —to of the charge: the following call attention to portions

We “ this case tends show property The testimony of -the same, deceased, possession some portion murder, and at a defendant, at a time subsequent alleged recent etc. date,” (125.) quite OE COURT

The State of Nevada v. Millain. this of the occurs: Also in another charge, language portion “ first or second murder of the degree The distinction between distinction, state such although nice. I is will briefly quite conclude that the defendant may I testimony apprehend you or innocent.”. of the first either of murder degree, (123.) guilty the Court in its inform- here find charge submit, we Now we them relative to the is instructing what ing proven, find the defendant should crime of which degree that it indictment; it is an axiom of the will under the for law that to be done forbids to be done directly. permit indirectly it Id. Ybarra, 170,171; Gibson, 284, v. 17 Cal. v. (People People ; 134; 20 21 Id. 481, 126, 284, 285 U. S. Secs. Sec. Dig. 40.) The of the is erroneous: following portion charge Murder the first a willful, consists of degree premeditated, The intent to kill must exist. This intent unlawful killing. may inferred from the circumstances.” be error herein definition to the

The consists giving wrong of murder in the and in first the use of the term degree, course “ inferred.” 21 Cal. 546.) (See. error in

Another in the use of the lan- is, charge following : guage “ This intent need not have existed for of time given length before the sufficient, It is killing. killing being unjustified unexcused if it be -formed at the instant circumstances, ; 1 500; 23 23 Green, Iowa, U. S. Sec. killing.” 290, (4 Dig. 347;

Park Grim. Crim. U. S. Sec. 326, 580.) Dig. Also the erroneous: following portion charge was is one as reasonable doubt meant such a By ordinarily the usual or control business transactions or govern you your ; of life.” 2 v. Met. 30 20 U. S. Commonwealth, pursuits (Jane 482, Sec. Dig. 142.)

The Court also erred in asked the instructions refusing give the defendant in relation to the to be weight given of his in his murdered proof having goods possession woman. instructions state and there law, is justification сlearly same stated reply substantially Cal.

charge. Ramirez, (People 172.) OE SUPREME COURT Nevada Millain. State of «. that, In state conclusion, we although may simply this case true that the defendant likewise murderer, ? And we that he convicted case true has been present legally blood, this as he a firm convic- Court, reddened clamor, to no intel- tion Court will will popular yield this case in all administer the law in others, ligently justly Court feel confident the must award a done, new being trial. brief: filed

Pifeer, following Respondent, is first record challenge The grand objection the defendant. D. for bias Black, juror against 1866, Statute The is not well taken. (See 49, objection page Section 180.) does not

As to grounds specify challenge panel: init Statute (See 1861, of the neither writing. challenge, 468, Section 324.) page the Court below. The demurrer was overruled

The by properly 460, and 1861, 459 indictment conforms Statute pages strictly 6, 126, Statutes 234 as amended Section 235, page by Sections 1867. of a human is refuted killing being by The objection “ Murder,” definition of murder. Eor the defendant with

charging 15. 68, see Statute Section 1861, page is on motion third of error relied overruling The point is not error well assigned; The being for a of venue. change not be reviewed will Court upon appeal, discretionary power not to be case in does for abuse, which appear except gross instance. well not taken: because the First, fourth

The error assigned 468, 1861, Sec. Statutes p. 324.) was oral. (See objection - error out the relied on. does not point Secondly, objection bias —is not well The fifth implied error assigned challenge — B. Black, Potter, to D. J. Monahan, taken: First, objection L. D. L. Young, ground E. L. Alexander Morgan, an or belief opinion had formed touching expressed they The evidence of said innocence of defendant. jurors, guilt OE 423 SUPREME COURT of Nevada v. Millain. The State had not record, shows formed unqual-

as appears not the defendant was or belief ified guilty, bias implied were over- therefore challenges properly 8 470, subd. 1861, 340; of Sec. also Statutes p. ruled. (See 128; v. Cal. The Reynolds, People Vermilyea,7 People Cowen, notes.) is not taken. The

The sixth error well instructions assigned do instruct as to law, and facts. the Court conform instructions and third asked defendant’s The first counsel are by the Court. in the instructions given embodied fourth offered instructions defendant’s counsel The second refused the Court, law. being were properly also General the case argued for the Attorney orally Respondent. C. J.

Opinion by Beatty,

This is case of conviction for murder in the first degree. several of error grounds appellant we will notice assigns seriatim.

The first made is, point Court erred in below failing his to a sustain challenge named D. grand juror Black. Black, an examination touching qualification a grand to act in juror said that he case, this had heard of the substantially charge against had and formed an the prisoner, opinion or in- touching guilt that ; nocence he be called perhaps might as á in the case witness a to certain of as piece to identify property having deceased; belonged not a in the that he case. The was prosecutor defense to objected in the the examination of grand participating the juror charge against reasons: him, First, two because was a witness for the pros- ; because he second, and had ecution formed an already opinion or innocence; to his and the guilt upon ruling Court that a Black to was the competent juror investigate and charge join an indictment, finding excepted.

In it is contended that argument defendant was much just an to entitled grand the impartial jury making exami- preliminary on nation which the indictment was as to found, an impartial jury COURT OE

424 The State of Nevada Millain. v. the made. In of this to after proposition was try charge support to The of Chief Justice are referred authorities. opinion several we the most Marshall trial is entitled to Burr perhaps authority on trial in this We have no of Burr’s weight point. copy place, cannot, there is that are of. We none in State we aware have means of therefore, grounds ascertaining But as the of United based his opinion. Congress great jurist never, aware, touching have so far as we are law passed any States or ruling we presume qualification grand jurors, must based either common law princi- case been have upon latter the. of natural This ground ground justice. ples the Chief acted. In case one on Justice probably seems Jewett, 313, York Court Wendell, New People more Marshall; to have the rule laid to speak followed down by the rule if the have followed objection they would accurately, say time. These at the had been interposed proper the grand juror to a grand cases find juror, supporting objection only a there statute authorizing in those cases where is some party except of bias. on account challenge accused interpose grand jurors in the Burr trial When the Chief Marshall Justice ruling Massachusetts, called to the attention of the Court Supreme their it, Court not refused be expressed governed by only case of the ease, thought only strong disapproval to remove kind be the books. refused prose- found in They before case cutor from the whom grand capital panel Mass. case, 285-6.) Tucker’s investigated. (See be the think common a grand might prosecutor, We at juror bill. still case, finding witness participate only Law', Sections 453 to 458, notes.) Wharton’s Criminal (See at law, been rule common whatever But whatever may fixes the our statute of natural disqualifications, justice, principle Statutes grand disqualifications, jurors. “ a 49, Act, a former 1866, provide challenge amending p. more of the one or an individual interposed grand juror minor; that he is a sec- for no other: reasons, First, and following ; he that he alien; fourth, is insane third, that he is an ond, the defend- against a charge charges prosecutor upon ant.”

SUPREME COURT OP NEVADA, 1867.

The State of Nevada not It is that this labored is shown have pretended grand juror under here as to that mentioned, any disqualifications except a We cannot that there is conceive being prosecutor. anything in the record that he a Bouvier show tending prosecutor. defines a to be one an accusation private who prosecutor prefers a he against whom to be This is a party suspects guilty.” very definition, correct is not broad to include a enough certainly case, mere in the is not witness to have taken who shown any part in a on foot. A makes an setting prosecution who party voluntarily affidavit to the issuance of a to arrest a procure warrant -whom party accuses crime is So too a who рroperly prosecutor. party to be before a procures permission sworn voluntarily go grand toas crime, be held to be jury testify alleged may prose- cutor. But a in who party appears merely response subpoena issued at the instance of the or the grand jury prosecuting attorney, cannot be held or treated as a He is prosecutor. witness, merely more. see no We valid nothing objection grand juror.

The second of error is in assignment this language: “ The Court erred in not the defendant’s sustaining challenge of trial as the names were not in the box and panel jurors, put Court, drawn open law.” And required by part statement in of this error is as The Clerk of said follows: support the names of from said Court, said drawing seventy-five jurors to the order the said therefor —drew jury pursuant seventy- box— names from the box in five the Clerk’s office, presence of the Court.” Judge this statement from the Whilst shows their names were drawn in the Clerk’s office, box does were show Court. The Court in session in the have been open drawn The Clerk’s office and have been office. court-room may Clerk’s in the same, same being building, one they may been all a door or of a have throwing open partition, opening in the record to one room. There is not sufficient into thrown case. If drawing the real circumstances of the were show what its in the session, whilst Court was presence took place Court, etc., officers, Clerk, Sheriff, consisting attorneys Court, done in held to been it must be whether open COURT OE NEVADA, The v. Millain. State Nevada its other transacts business or any room where Court ordinarily in same record does not show room the affirmatively building. error. third of error the refusal the Court below ground bias. several challenge

sustain appellant’s jurors implied case made on assignment strongest Perhaps by appellant the examination of D. Black. one We give shown will of his most material examination: portions Question. This or summer did read apprehen- you spring sion Millain? Answer. I read the apprehension and'impris- ; it, I could not tell. I think I heard of too. onment the name Q. accounts about the Did read finding newspaper you dresses, furs, the deceased —the silk jewelry, property in his trunks ? A. I could not found at the etc., say posi- bakery tively heard it or it. I either heard it read whether I read it. ?man A.

Q. about this person Have conversed with any you I No; I heard others have when was passing by.

Q. as to he have heard others You whether express opinions ? A. I heard have many. or not it in Q. heard about express opinions Have whose persons you ? A. I confidence in confidence place you place judgment man’s judgment. ? A. No one. in

Q. man’s any judgment No confidence ? A. Sometimes. Q. own your You confidence place about Q. an account newspapers Did read published you ? he A. I to the Chief of Police was guilty this man’s admitting think it. read it. told that I have might I been part rather I I it ? A. could Q. it read say believe when Did you you it. believed

Q. believe it from it this far: now Did believe would you you belief tend rather to its if should hear your disputed you —would ? that much Yes, its A. would. truth than falsity Q. an account that defendant had I from ask if, reading you that he had been found with guilt reading confessed —if he in his and that had confessed was possession, guilty— goods of bias or him against engendered any feeling prejudice your ? mind A. No mind. prejudice my OE SUPREME COURT NEVADA, 1867.

The State of Nevada Q. Does he same place occupy your A.

man in the at Well, I him a rather community? keep little distance.

Q. aba distance A. him ? itWell, would rather Why you keep is more or less prejudice.

Q. Have of bias or this defend- you feeling against prejudice ant A. from evidence that arising ? I believe have never you formed or an as to his or innocence. expressed opinion guilt

Q. Have ? A. Whatever an he is not you impression guilty I is have him. impression against

Q. You an A. To have him? a certain against impression extent.

Q. Would evidence that ? A. require remove impression It would. certainly

Q. So that is A. a belief? Yes. impression Q. It would it ? A. require remove sir. Yes, evidence to Mr. bias. DeLong.challenges juror implied Mr. Pitzer —If asked if believe or have you question you mind opinion this defendant inno- or your whether guilty cent, could Yes ? or No A. I either— you say would say either that he or not. was was

Q. Your mind in such a state that cannot he is believe you either or innocent ? A. Exactly.

Q. often have seen the defendant ? A. I How never saw you him before I him in I saw Court. more in Court have to-day heard than I have heard before.

Q. Did that create a A. bias or him ? It cer- against prejudice made more less. tainly

Q. Did have him before feeling you against prejudice ? A. Court; I I Not before came into not a before particle into came Court.

Q. Do feel could that, aside, give else you laying everything you this defendant fair and ? trial alone evidence impartial else, I A. it the same as I would just pass upon would anything if I did not about case. know anything

Q. You no have as to this defendant say opinion whether you killed the ?not A. I not. woman have COURT OP Millain, of Nevada

The State ? A. Q none. No, have no Upon opinion subject you Prosecution denies the challenge. relate to Court. —Does that

By ques- have opinion you A. "Well, I tion of or innocence of the defendant? what guilt heard have in Court a belief. would to-day Q. it arise have in Court heard to-day what Merely you —does ? in his A. That is all; seen from about the being goods me to brought belief. possession, my Q. reason of Have the defendant against you any prejudice this indictment ? A. a particle. Not

Q. Do or innocence entertain an the guilt you remove, you defendant that what would evidence require A. Well, ? take doubt. some, heard to-day Q. trial, setting Could this man fair and you give impartial him according all have heard aside you try to-day, ? A. could, according and evidence I Certainly and evidence. the Court. —I he is think a

By competent juror. to have bias claimed only ground appellant implied under the been in this is one comes eighth shown case which or division class of be evidence causes the statute shall says “ Having bias. This reads as follows: division implied eighth or or belief that formed an pris- expressed unqualified opinion not oner is or offense charged.” guilty guilty in our do These opinion answers somewhat contradictory, or to conceal views opinions not show disposition any sometimes rather rather show was They juror juror. use further show English language. They inaccurate he came into Court had before he that from witness heard what guilty, had formed an impression prisoner probably he had what strengthened by somewhat impression his examination in the course of heard counsel say prisoner’s of goods been found possession about prisoner having could or And bеfore that deceased. impression suspicion to hear some evidence removed he have would exculpatory If a of this sort sufficient other side. mere were suspicion intelli- of common do not see exclude any juror we juror, how SUPREME COURT OE

The State Nevada could case given serve when defendant wished to 'gence exclude him. A called and informed being juror up party in Court has been indicted and stands awith certain charged offense, has heard of the case has nothing before) (if naturally his aroused that else he suspicions party may guilty, have been indicted. If in addition to this the likely prisoner’s if counsel asks he has not heard read of certain cir- suspicious cumstances connected his client’s with this conduct, how- suspicion, ever at'first, Indeed, increased. slight thereby can naturally we conceive of a an case where could be impartial scarcely juror sworn one offense some without try charged grave suspicion mind that resting .prisoner guilty. A mere is not suspicion enough must be disqualify juror; “

a fixed and in the words of the statute positive opinion: an or belief.” itWhat takes to constitute unqualified opinion an belief,” is sometimes difficult to unqualified opinion deter very mine. an good the technical Perhaps exposition meaning this is to be found in the of Mr. phrase Justice Baldwin in opinion the case of the 132, Cal. could Reynolds, well be People Erom that given. one opinion quote paragraph expresses our more views than we ourselves could clearly them: express causes Among bias, is the formed implied having or belief that expressed unqualified prisoner guilty, or is of the offense 296, Sec. charged. (Wood’s Dig. no one of civil or

347.) criminal Upon question practice decisions of Courts been more inharmonious than ques or tion of of qualification from the disqualification jurors, arising formation of or of expression opinion or innocence guilt accused. We are relieved to some extent of the task of determining its merits, for our statute upon original question was designed to fix a rule this It makes the upon formation or subject. expres or sion an belief a unqualified opinion ground exception for bias. The tois fix the mean juror implied only difficulty terms, these or ing belief.’ ‘unqualified opinion Evidently these terms were used define the nature of or belief opinion formed or a expressed; distinguish mere between hypothetical or mere a casual a decided or fixed opinion, impression, opinion. OE NEVADA, SUPREME COURT of Nevada Millain. State he a that, to exclude the must have implies juror, language has

settled conviction of the innocence of the or or guilt party, It does not seem to be such a conviction. indispensable, expressed usual, means, that the has had the or under this section, juror any or at a correct or of an’iving intelligent opinion upon opportunities, if it. if it or he has Minds he has formed subject, expressed some men so constituted that form opinions very differently to them and insufficient grounds, adhere upon.slender obstinately sufficient exist for forming are undecided reasons others when while fixes a standard its The statute own which impartial- them. as as the effect- nearly possible consistently approximated ity of criminal It has declared a test administration law. ive exclusion, be, has formed bias juror implied ‘ must rule its hold this an We expressed unqualified opinion.’ to its from nor neither subtracting adding anything simplicity, a has or heard state- read If, for example, juror requirements. under the sec- itself, does not case, of the facts of this ment has either formed not for it follow him, does tion, disqualify ‘ not He have formed an unqualified opinion.’ may expressed one. He an all, at unqualified opinion certainly, any this but enough disqual- received impression, impression of the mind A mere inclination toward him. suspicion ify the mind be more is not state of must enough; conclusion like that He must have reached a conclusion upon decided. words, to act in matters. In other we willing ordinary he would his mind must more than an the effect impression; repeat, in order to exclude him for it must amount to a conviction implied bias.” as clear and as the

But even with explanation, precise admit we cannot admit of, nature will subject many nice arise the shades of be so causes where opinion might at to render to arrive conclusion satisfactory impossible formed an unqualified to whether juror it to Suffice do not think this say juror, opinion.” bias and permitted challenged implied jurors to sit in the case had formed Court challenges, notwithstanding or belief.” an unqualified opinion SUPREME COURT OE State of Nevada of the Court erred is, fourth error that below assignment This motion founded of venue.

refusing grant change on three and the of affidavits, admission District Attorney certain facts. The substance of these affidavits was as follows: Defendant’s showed that deceased lived in affidavit Storey County and had friends are zealous to who now convict defendant. many of Some them die; have stated defendant should him if not hang convicted. have been active They pro- evidence curing and mind false prejudicing public by ‍​​​​​​​‌‌​‌​‌​​‌​‌​‌‌​​​​‌​​‌‌‌​​​​‌​​​‌‌‌​‌‌‌​‌‍spreading as to reports defendant’s admissions and as to other crimes alleged to have been him; committed has by daily press preju- diced the mind of false confessions and slander- public reports ous of of charges this defendant complicity part crimes. These things have, informed, deponent produced of hatred, ill will and feeling defendant, ren- vengeance against for him to fair trial in dering impossible obtain a Storey County.

E.C. shows that the its offense, circumstances of the DeLong etc., has have created That he had enormity, excitement. great thinks, from to observe the and he good opportunity feeling, public false made reports confessions newspapers defendant, and from the excitement produced by enormity the offense, the have settled into a conviction public down generally of defendant’s but of other heinous guilt, this, crimes, and thinks he could a fair trial in Storey County.

A. after his means of Genesy, showing knowledge, which considerable, that he states has heard almost universal expres- sion that defendant community Storey County and thinks he cannot fair trial in have a guilty, county. Besides the fol affidavits, these the District admitted Attorney as if facts, be acted the Court lowing by proper proved Tres News,’ That the Gold Hill affidavit: Virginia Daily ‘ three Territorial were Enterprise,’ newspa Daily ‘ pass,’ Nevada, printed published Storey County, pers, daily ; in each of universal circulation in general said county had full and been heretofore said papers printed published the arrest Bulette; of the murder of also of details Julia particular murder; also defendant, the commission said charged OP COURT SUPREME v. Hillaiu. The of Nevada State of of deceased posses full of finding goods reports defendant, when and of defendant, of this recognition sion various had at citizens, several who person being custody, by and articles of clothing jewelry to sell to said times offered persons in said Also, of deceased. papers, as being recognized property defendant, and had been published the statements printed deceased, the goods his confronted with arrest, after when that he Edwards, Police, to one Chief of admitted had voluntarily the evi murder. Also a statement of of said crime of said of defendant had been on the examination dence adduced the county and circulated throughout generally published papers the citizens thereof.” read Storey, defendant, motion on this overruled Court, showing, remarks: but made following for the time being, counsel, said motion the Court informed When overruling first he attendance, a number would having large jurors ; and if from examination of a jurors attempt empannel existed defendant as to render bias found that such against to obtain a that he then allow counsel difficult would jury, quite it.” renew motion and then would grant venue, to trial without a change The Court proceeded finally was'satisfied, that it from an examination of are to presume fair and trial could be had attendance, impartial jurors in Storey County.

There are cases that Courts few present Appellate themselves it is more difficult to determine settled where upon any principles rule of than in these cases to a action, of venue. relating change all is admitted that there is a broad By power discretionary allowed the Court But Court whilst that original jurisdiction. such it is discretion, has still and not an dis- judicial arbitrary If that discretion is used in an cretion. arbitrary oppressive manner, an Court is bound to correct the error. But to Appellate is and between what not an distinguish what abuse of that dis- cretion, often nice difficult There are two very question. circumstances, existence either should entitle the to a defendant of venue. change NEVADA, 1867. OE COURT of Nevada

The State jury. The one is the of obtaining impartial impossibility defendant, other is such a state of excitement against public and over- intimidated to be even an impartial likely little There is demonstrations the accused. awed against by public show affidavits, tending or admissions of District Attorney, to intimidate mind as calculated a state of feeling public threats made had It is some friends of the deceased true, jury. to show but there is nothing of violence against prisoner, influence seriously friends either sufficient in number or were that can allow if Indeed, affect the we great people. body to act and authorized fact, was with below Judge acquainted record, of a fact made by on sufficiently apparent knowledge have it should justly the murdered woman was cyprian, not of a class that her friends him were tended convince greatly If there sentiment. to exercise forming any great power public of it must have arisen from excitement, atrocity great was any friends of the crime rather than influence exercised by deceased. established defendant satisfactorily showing discussed; that a great

cirсumstances of the murder were widely circum- about deal and supposed testimony many reports stances, defendant, published, to criminate were printed, tending tended and read This County. generally throughout Storey a fair and that it be difficult to obtain impartial might show be so. that it would But it did not conclusively show county. ascertaining think the Court took the plan below prudent We attend- That who were-in is, that fact. examining by jurors on hesitated, to have The Court seems ance on the Court. and to have acted etc., prudently the affidavits,

production motion change due to defendant’s rights. with regard himself satisfied had refused after the Judge venue was only finally can- could be obtained. We that an examination impartial jury by acted coming that he his discretion pr unwisely abused say this authorities on subject, If examine the conclusion. we far as So we find or conclusive. little that satisfactory above seem to sustain views examined some cases them, have In thereto. and none of them are opposition expressed, clearly COURT OF NEVADA, The State of Nevada v. Hillain. 353, of the State v. B. 5 Cal. Lee, case W. of California Court reversed the defendant because the Court judgment against sustained had refused him a of venue a motion below change affidavit, his the defendant’s that he own expressing trial, a fair and that over one could impartial showing had united in counsel to hundred citizens of the county employing prosecute. the State

On in the case of hand, the other People of 180, 18 Cal. John showed prisoner Mahoney, California his affidavit that a before that few time (uncontradicted) years he had been an armed of citizens arrested by body unlawfully Committee, into called what organized Vigilance placed California; on board a vessel to be State transported beyond to San Francisco he on returning making escape and after confinement for some arrested, again being time, kept read to him one of the members of that com- he had a sentence banishment the State of Cali- mittee effect) perpetual (in him death if he returned. Under fornia, ever threatening in irons and thus this sentence sent board of a vessel the limits of the United States. He showed transported beyond thus out in violation of law, organization, dealing punishment of thousand citizens of San Francisco consisted about six county; that number of that the the was then Judge among organization tried. He the Court showed besides where presiding these thousand enrolled Committee men six of Vigilance (most to act as other qualified whom were jurors) many persons sympa- thized and the He out with encouraged organization. the pointed excited himself because of this great prejudice against which him the Committee. Yet the Vigilance proceeding against by refused, venue, Court him a of and the below Court change Appellate refused to interfere the with effect that judgment, holding saw abuse of in the Court discretion below.

In the Webb, case of v. 1 Hill, The the York, People New Court before the trial in an indictment pending libel, the venue that the changed defendant showing had taken to the mind of great the pains the prejudice public against articles had prosecutor; been sent inflammatory defendant, by NEVADA, 1867. SUPREME COURT OF The of Nevada Millain. State to to others but his influence procurement, through to the term of the summoned three-fourths actually jurors Court here to tried. The at case was Court which expected that defendant’s con- influenced been feeling seemed have by and feelings in- thus with tamper prejudices duct attempting the more and therefore yielded of was wholly unjustifiable, jurors of of venue. change to the solicitations prosecutor readily others not been sent these jurors had by Perhaps, publications not so defendant, or influenced by they might connected readily with of venue was before Here too change granted assented. have if it had been refused and the follows It no means trial. by for the asking party change, trial had resulted adversely case, of such have reversed judgment. on would, review Court believe, cases, them, but none of we have examined many We those than of we of two appellant views more favorable to be at seems views neither of which war with noticed, have expressed. erred is, made next Court by appellant point to the indictment. the demurrer to sustain

refusing Court, title of caption, of indictment (excluding body ££ named, is above Millain, John form: is in the following etc.) this indict Storey, by grand accused County by £ That follows, wit: ment, murder, committed as of the crime of Nevada, Millain, on the State said John Storey County, at 1867, thereabouts, Virginia twentieth day January, a.d. Nevada, State authority without

City, County, Storey killed Julia Bulette her striking with malice aforethought, wood, stick strangling head with choking Millain; of him, Bulette hands the said John the said Julia the blows, afore means choking strangling whereof Julia Bulette then and there died.’ said said, All of form of statutes contrary the. cases made provided, against dignity peace State Nevada.” in sev-

This, indictment, common defective as a law obviously killing It fails was eral particulars. charge alleged did murder Julia felonious. It fails to defendant charge SUPREME COURT OF NEVADA, 1867. of Nevada

The State It fails to the felonious, Bulette. and malicious charge willful, assault which precedes charge murdering usually killing in a common law indictment. its common

Indeed defects as a numerous, indictment so law be said to contain that a common may scarcely anything indictment should But contain. there to make this attempt a common It law indictment. attempt follow simply form the statute. There prescribed are, indeed, two by ques- tions for us to connection consider in First, indictment. with form; does it conform to our and second, substantially statutory had the Legislature dispense with power formality common Our law indictment ? Criminal as at Act, Practice present amended, contains the sections: following “ 235. Section It [meaning substantially indictment] form: the following “ of-. Nevada, Nevada, State State County Doe, A John real B, defendant, whose name plaintiff, against [or B unknown, A above named is accused grand defendant]. if of of--of the crime of County felony, [or murder, committed as follows: etc.] “ The said B, of-, A , or the-day a.d. 18 — thereabouts, law, and malice without authority aforethought, killed Richard Roe him with a shooting with a pistol (or gun the facts).” weapon, according 236. must be direct, Section The indictment and contain as it first, second, charged; offense regards: party charged; the offense third, facts of far as particular charged neces- —so constitute offense —but the evidence complete sary tending need not be stated. It shall not be prove chаrge necessary forth in the set indictment character of the nor used, weapon in the used commission of the any offense, weapon unless of such ais using commis- weapon ingredient necessary sion of offense.” Section No shall be insufficient, indictment deemed nor the trial, thereon,

shall or other be affected judgment, proceeding reason of defect or matters of form imperfection shall not tend to the defendant.” prejudice OE SUPREME COURT v, Nevada Millain.

The State of indictment all that form This contains statutory certainly that form The form requires, indeed more than omits requires. an show oversight draftsman)

(this undoubtedly it. The form ends of This contains with indictment killing: place form the means death. This used describing produce charges that death of Then in the result of the use this means. two it is a indictment than the form much better respects statutory form is The section in requires. following given, indictment averment following to show requires positive ? Millain is First, Here John who is the things: charged party Second, in direct and language. charged positive party Here the offense is offense dis- with which the is charged. party as murder is an offense be murder. charged Now tinctly clearly defined in the offense is cannot statute, questioned of this section is: charged. clearly only requirement “ far as neces- facts of the offense so particular charged, to constitute a be contained indict- offense,” sary complete ment. This latter clause admit of might interpretations widely variant. A stickler well for old common forms might say: law “ The facts of the particular offense could shown charged them with all a common stating required particularity indictment.” One more imbued innovation with the of modern spirit well might indictment form sufficient say this comply requirement: “ United States oe i America, ndictment.

State of Nevada, of County Storey. )

In the District Court the First Judicial District. At a term and holden at the Court House begun Storey on the June, first our Lord one County, Monday year thousand hundred and eight session continuing sixty-seven, at the time this indictment. Present — Hon. Richard finding v. Plaintiff, The State John Nevada, Rising, presiding Judge. defendant. Millain, John Defendant, Millain above named, accused by grand of the crime of murder, committed fol- Storey County : lows Millain, The said John twentieth January, 1867, day NEVADA, 1867. SUPREME COURT OF

The State Nevada Millain. Bulette of of Virginia, County, murdered Julia City Storey and her a stick choking with Nevada, striking State her his hands.” with it first,

If used means means: above language anything, for human that John is a reasonable being, only Millain murder; second, that Julia human can commit reasonable beings can be mur- Bulette human for human a being, beings only word; must third, definitions Millain dered under all can be killed Bulette —there indictment have (the being true) (cid:127) must been have fourth, no murder killing without killing; murder; must have unlawful; fifth, is not for killing lawful unless it or been for no muider felonious, manslaughter killing malice been done with sixth, be done must have feloniously; all murder. The time this is ingredient aforethought, or means used the intruments to are also stated, produce place death. the commis- show alleged

What other facts need be proved not be consid- Now, ? we sion the offense whilst would charged above, no form have have given ered such a as we we sanctioning such a if the had that, hesitation in Legislature prescribed saying been form in 235, perfectly justifiable Section would we that and Section there between holding discrepancy a indictment form, has 236. prescribed The Legislature additions to all its two making that form in has parts, followed tend make indictment both of form, prescribed its cer- not detract from do anything more certainly perfect. They this indictment all think complies We precision. tainty of the statute. the requirements to make such an

In Legislature power regard can see no constitutional sufficient, indictment objection. the method of Legislatures prescribe State proceedings power conceded. The Consti- Courts, criminal in civil and universally State, and also of our contains States, the United own tution of this effect: shall be held No person clause answer crime, infamous unless presentment or otherwise capital, of the Constitution This clause indictment a grand jury.” from trial authorizing Legislature prevent SUPREME COURT OE

The State of Nevada v. Millain.

criminals the mere upon of a A presentation grand present- jury. ment at common law was a mere informal statement of a grand jury (not prepared law officer of attention to Court) calling the existence of some violation of think law which jury might needed correction. An indictment is defined to be a written accusation of one or more of a crime or persons, misdemeanor, pre- to, sented preferred affirmation grand oath convoked.” as the legally Now Constitution only present- requires ment or indictment before trial for a it did not offense, intend capital thereby prevent Legislature how prescribing grand should form them indictments, that such simply body should in some form tlleir express approbation prosecution, before a could be on his final trial for a or other party put capital infamous offense.

The next the most point, made perhaps one important appel is this: lant, that the Court should have the arrested below judgment, because the indictment not an indictment for murder the first and therefore did not sustain the This degree, verdict jury. whether murder in the first and mur

brings up question, degree der in the second are distinct offenses, two degree requiring separate and distinct are both but one indictments, offense, or whether they form of indictment? contends requiring single appellant that offenses. murder in the first That two they separate contains certain elements do not degree of crime which necessarily enter into the crime of and that murder, man therefore simple can be convicted of the crime of murder in the first unless degree, those it from circumstances of raise special which atrocity murder stated in indictment. grade ordinary specially the.

That murder in the first .is as distinct from ordinary degree just murder as murder is In of this posi manslaughter. support Procedure, are referred to on Criminal tion, the work Bishop et Mr. II, 562, Section The reason of Vol. sequitur.. Bishop in the first favor murder degree proposition simple murder in the second as defined a statute (murder degree) almost identical is conclusive and But ours, with unanswerable.

whilst Mr. has labored zeal and Bishop with ingenuity show distinct nature of the he hesitated to cen- two has not offenses—whilst OF SUPREME COURT of Nevada State criminals allowing

sure sanctioning practice Legislatures were technically they to be convicted of an offense so statutes construing Courts for he has censured indicted —whilst statute might as to allow such a language when practice, con- and more reasonable his another admit of opinion) fairly (in of a statute to admit where has not hesitated struction, both one form of indictment for grades Stаte for but provides as act on do murder, Courts nothing shall find unless State it, opposed indeed Constitution to admit rather further, the law. He seems reluctantly, the various ours, under statutes in form same substantially the, held almost State Courts such a exist have where statute uniformly suffi- murder form of for simple indictment ordinary We degree. cient to murder the first conviction for support sections, from Mr. show work three which clearly copy Bishop’s In a like ours. views as what held under a statute has been note sustaining to Section he refers to numerous decisions 565, to sus- murder form of indictment for sufficiency ordinary tain a verdict for murder in the first degree: law, relating the statutes Sec. 562. In criminal the work on as their will, pre as far their interpretations, with subject, sentation provisions necessary, appear except— concern the us however, parent Let here, repeat procedure. is, It one of 1791. statute, being Pennsylvania as follows: the which relates procedure, exception part under the are included the offenses which Whereas, gen several eral, in so each other denomination of differ from murder greatly it of their is to involve them in atrociousness degree unjust be etc.; same all murders shall which perpetrated punishment, kind willful, means of wait, or other by poison, by any lying shall be committed deliberate or or which premeditated killing; arson, to perpetrate any rape, robbery, perpetration attempt all ; murder of first be deemed degree shall burglary, be in the second kinds of murder shall deemed murder degree.” murder into two degrees, Sec. 563. Here is statute dividing VIII, Hen. Chap. as homicide Stat. 23, felonious

precisely by OE 1867. SUPREME COURT of Nevada The State c. Millain.

1, 3, Sec. divided into two which were afterward degrees termed murder And if wishes to one see manslaughter. any be, should as concerns the form of how procedure particularly indictment, if the to here, statute ended he has only reperuse the discussions under our last sub-title for a complete judicial expo- continued, sition of the matter. But the statute did not so It end. ‘ section, same as And the follows: before provide for shall, indicted murder be tried if whom shall any person they find thereof, such in their ascertain verdict whether person guilty be ; murder of first or second but if such shall degree person confession, convicted Court shall examination proceed, witnesses, determine the crime, sen- degree give tence accordingly.’ “ It Sec. is never well for make exceptional legislation as respecting Still, cases. provisions procedure particular deal sometimes do the Courts must with legislators will things, them as best can. And the of decision in our tribunals course if that, has been form indictment is after which drawn at the common for a common as an indictment good law murder, force of the above pro- statutory may, visions consideration into their take regulating procedure, evidence of those to the facts facts not which, added alleged, constitute murder the first from alleged, as distinguished degree, murder in the second need words, In other the indictment degree.

not set out the which the crime circumstances swell aggravating murder in the first as the first indictment degree, degree felonious homicide called murder is to do respect required those thus swell the offense from the second called degree, said, сomes, murder. This from those manslaughter, just statutory provisions regulate procedure.” our statute Whilst murder of first and distinguishing between second does not contain the degree Mr. preamble quoted by from the in other Bishop statute, Pennsylvania almost respects an exact Act. There are one or copy Pennsylvania two verbal but there slight discrepancies, would call nothing which a different rule of action to indictments under the regard two Acts.

29 OE SUPREME COURT of Nevada State the that it statute from the

We are satisfied language in the distinction the making the in the intention of Legislature, each; indictment for a distinct murder, classes.of require two similar Acts uniform under had almost the and as it been practice for murder indictment in other States to hold that an ordinary crime of for the murder to sustain an higher sufficient indictment hold that the the first must degree, Legislature, adopting on it. statute,’ heretofore also put adopted interpretation a indict- the indictment in case is then, good Holding, under the form ment for murder Legislature, prescribed by is sufficient as a indict- indictment simple and that any for the is sufficient to sustain a verdict higher for murder ment the first inquiry murder in remaining crime of degree, is: has power require to be made Legislature jury, murder, determine for whether an indictment prisoner under or of the crime of murder murder higher been only, has guilty in the first degree. to determine whether would

If called upon proper we were to exercise such as lawyers for the power, probably, Legislature law, the formalities of common to all we might accustomed But is one is in the negative. propriety thing power answer — has absolute over The Legislature power subject another. It cannot most respeects. criminal deprive party practice, right to trial appeal, right right jury, for his counsel, wit- right process defended compulsory other which are nesses, and some rights especially provided perhaps or States Constitution. He cannot either in the State United offense with death, for an even be on trial punishable put an indictment crime, presentment infamous without indictment or form of that But presentment, grand jury. the control of within views, legisla- our according entirely 2 of the Criminal Our Practice Statute tive department. (Sec. be found the defendant may In all cases guilty declares: Act) of which included necessarily commission offense, indictment, be found he is charged the offense charged.” to commit of an attempt declare in our that when a opinion, might, So Legislature NEVADA, COURT OE 1867. SUPREME Nevada Millain. State of is indicted for be found person manslaughter only, may guilty by of either murder in the second mur- manslaughter, degree, der in the first or be as all' the facts degree, acquitted, proved, taken in connection of the shall land, with law appear just if no Indeed, distinction is to be made murder in proper. between the first is death, and murder in the degree, which with punishable second is which degree, with only punishable imprisonment, seem but reasonable that all distinction as to the form of indictment between murder and should be simple for manslaughter abolished, each of these crimes is punishable by imprisonment only, both the same term, ten they wit: years only —the difference that ten is the shortest in being murder and period years If in indictments these longest manslaughter. cases are to be governed rule, should by any philosophical they clearly desig- nate the of the offense which the grade with prisoner charged, the offense ‘from the next clearly distinguishing lower charged or else there should grade; be but one form indictment for all homicide, determine, unlawful -from facts leaving proved on trial, however, of the offense. It is, our grade business administer the find not make law. it, we of Mr. argument against Bishop power Legisla- ture to of an indictment for murder in dispense' finding first out those circumstances of delib- degree, specifically pointing eration or raise it from the which degree murder atrocity simple based are crime, higher clause principally following of the Constitution of Massachusetts: No shall be held person crime or until the answer offense same is fully plainly, described to him.” substantially formally

It is sufficient to to his answer so far as say, arguments, to be to this sought case, that by appellant applied have in our Constitution at all similar to this. nothing contends that there not sufficient evidence to sustain Appellant verdict; amount of is that whole defendant proof found of some of of deceased. We possession property view in a different He found in the light. of a proof possession and of deceased, amount large property property death; hours before her she had few only pos- COURT OF v. Millain.

The State of Nevada have session of an amount of her which he could well property, obtained he is to have made false statements shown honestly, it. regard true,

At if the he could least, proved statements were easily to do. of them some to be he neither nor so, did, attempted having He made statements in to the dresses regard jewelry trial he on the to his dead. Yet he said was wife, who belonged to find made no had a nor wife, to ever attempt show attempt the had a dress woman who to his sent pattern by (according story) them him sale. he sold the instead diamonds, selling When sold in their he took them out of the setting settings, gold man. them an innocent This not the conduct of was separately. from the The stolen, or possession taken property recently or rob- owner of other such as perpetration burglary felony, is at etc., having least some bery, evidence against person is such the same that he is felon. If the possession property in character or to come honestly not be would likely quantity into the as ladies’ hands of the be found, with whom person may dresses, in the man not etc., hands of a engaged jewelry, single trade or business, this would strengthen pawnbrokerage greatly evidence. If such articles found large quantity, beyond were still means of the this would apparent honestly, acquire party should, further increase If the evidence. party strength in addition tell lies to all these about property, things, false of it under representations, attempt dispose pretenses doubt. reasonable become conclusive all evidence beyond would that the defendant was In this case the seems evidence satisfactory of the offense charged. guilty is, did the Court err to be discussed

The only remaining question asked either in its those instructions or withholding giving defendant. The first of the which exception portion charge find the taken must is, that Court charges they jury murder in the second murder the first prisoner guilty degree, or not to find the thus from them the degree, taking right guilty; prisoner guilty manslaughter. here deceased shows, evidence if it was shows anything,

killed at a late hour bed, or in the in her night morning SUPREME COURT OE NEVADA,

The State of Nevada ¶. that after the the house was robbed. There is no killing, testimony to be introduced defendant attempted showing attempting show have been done in a killing might quarrel fight.

law unlawful presumes murder. every voluntary killing In the absence then of evidence, defendant any explanatory was murder, It was guilty eye nothing. therefore as above stated. If it proper give charge under such a state of facts to proper chai’ge they might their discretion find the prisoner guilty manslaughter, find him of an assault equally proper charge might they guilty murder, or commit even of a for both assault, of these simple guilty are crimes of under our statute convicted party an indictment murder. Yet in a case where a party beyond all slain and another indicted for the question murder, it party seem ridiculous to find the charge defend- might ant of a assault. simple from the quotes

Appellant following language Judge’s charge, that it is erroneous: complains “ If believe from the evidence that about the nineteenth you day of last, at defendant, the Virginia, with January Storey County, malice either or aforethought, delibera- expressed with implied, tion and did kill Bulette, Julia with intent premeditation, unlawfully to take her it life, constitute murder of the will first degree; find; should so you otherwise will you acquit.” to this effect the is, that are instructed objection Jury it to

what takes make murder in the first and after degree; being instructed, are told that if cannot find these so circum- they to have attended this must the stances defendant. killing, they acquit instruction, it is too there is to this favorable to defend- If any objection are instructed in if fail to find that effect, the ant. you jury attended a deliberate and of this with woman was killing premeditated raise the offense of intent to kill murder simple (circumstances the murder in the first defendant to will degree) acquit although you ; the of believe he of crime murder of is, was you the deceased malice but a deliberate without aforethought, killing kill. then, intent to If this instruction erroneous, was premeditated OP SUPREME COURT

The State of Nevada not an in favor to discuss, of, not error now will point of prejudice prisoner. of is this: If The next believe language complained you to can offense, doubt degree, of you defendant guilty crime within of the convict the lowest degree grade in the first second degree.” one charged —murder correct, could operate This technically language if first views of defendant we right expressed the prejudice is, that there before That charge. about the Judge’s testimony them to consider the or innocence of the guilt authorizing crime less than murder. regard any prisoner In of the another after charge Judge, portion speaking the mere fact of character conclusions drawn unsatisfactory found in of stolen adds: prisoner property, being possession of other It add will prosecutor proof necessary order to render naked pos- circumstances indicative guilt a conviction, available to such as the session of previous thing denial of refusal charged, possession by party of the etc.” fact, give explanation This counsel for because, language complained appel- says “: led conclude that the This language lant unexplained these failure when explain things defendant’s testify to do him an so, out to accompanied held opportunity by proof them warrant verdict finding guilty.” possession, failure account for pos- prisoner At common law was held circumstance him, of stolen strong against goods session rules evidence under fre- from the although system to do difficult if not so. At least it im- impossible might quently for an innocent man to account for under even his possession possible at the common rule of evidence established law.

This it have been correct. formerly instruction Avould Surely now, the has one means of cannot incorrect because prisoner be for stolen in his he did not have goods possession, accounting common at law. of instruction cau-

In were another properly portion effect or to the silence of the tioned weight giving any against in to this regard same made The observations we have prisoner. 447 COURT OF Nevada The of State in contained other matters to some latter will apply point charge. seemed to the first which at hlnsh

That charge portion in is contained follow- of this most questionable, writer opinion language: ing “ first second degree The distinction murder between distinction, state such although nice. I is will quite briefly that the defend- conclude that I you may apprehend testimony or innocent.” of the first either of murder ant degree, “ shall charge juries Our Constitution Judges provides in to matters of but state fact, testimony may respect declare law.” State of the newly adopted-

This contained language many it first or where introduced, ‍​​​​​​​‌‌​‌​‌​​‌​‌​‌‌​​​​‌​​‌‌‌​​​​‌​​​‌‌‌​‌‌‌​‌‍these-pecu-' When Constitutions. limited to find in the unable

liar we have been originated, expressions .... devoted subject. we period these as to -the "force of Nor have found much adjudicated them. or the construction put expressions, the same The California Constitution contains language, Ybarra, Court of that in the case v. State, People Supreme 17 Cal. use are 170-1, this language: says Chitty, jury,” as much as the and have law, fact Courts judges convict; absolute power acquit great if he mind of a decide on the Judge were responsibility Law, or innocence of the Chit. Crim. 528.) guilt prisoner. (1 at common to be rule appears Judge may express of evidence. regard the*weight (Common it has v. Pick. But held Childs, wealth been 252.) Alabama a Court should not as to even a civil case. charge facts, It is Minor, Madding, 129.) inquire (Tubbs unnecessary the instruction in this case violation princi whether law; common within prohibition was clearly ples and cannot be maintained Constitution, without disregarding of that instrument. The Con language express provisions c is: shall not stitution Judges charge juries respect state the and declare the fact, law.’ matters testimony VI, Art. This Sec. violated 17.) whenever provision (Const. SUPREME COURT OF NEVADA, 1867.

The State of Nevada so instructs as to force Judge to a jury construc particular tion or whole upon part or any case, to take their away exclusive the evidence and right weigh determine the facts. The that meaning is, provision shall decide Judge upon facts, and the law that former shall not jury invade the nor province usurp the latter. powers has no more to control the Judge right jury upon a matter of fact than the have to jury directions of disregard a matter of law.” Judge upon

From the here should views that the expressed, Court in say effect held that this clause in the Constitution is but an affirmance of the common that law Court is principle, to be the judge and the all of all law questions jury questions fact. far So is concerned, as the the Court is testimony exclusive usually to its must determine as admissibility; jury to its judge admitted- But after whilst the can weight, determine as credibility Court weight testimony, at may certainly determine is, common whether there or not, any tend- testimony a certain fact or facts which are ing prove essential to sustain an It is action on this support prosecution. principle Courts nonsuits in civil and in cases, criminal daily grant cases direct or advise to acquit. juries

If a is under indictment for prisoner murder, the prosecution fails to establish the fact at last conclusive reasonably testimony that the been killed is person charged dead, Court really not hesitate to direct or would advise the So too acquit. when to have committed party charged murder by poisoning, all the is directed to such a proof charge, deceased is to have died and not poison shown other kind by any violence, not be in the surely improper Judge all feloni- say ous and willful fatal is poisoning murder in proves the first and as there is no degree; charge proof defendant against he caused the death of the he is accused of party murdering than therefore I advise poisoning, way there is you of murder conviction proof justify second degree if Therefore, satisfied manslaughter. you fully prisoner caused the death of deceased will by poisoning, convict of you OE NEVADA, COURT

The State of Nevada i>. Millain. murder in the first But if reasonable doubt have degree. any you on this an instruction seems to us in will Such subject you acquit. case not is doubtful, where proper, testimony for the of the protection Otherwise

necessary prisoner. jury, when not satisfied of the of the they fully guilt prisoner, might their consciences him of an offense compromise finding by guilty him would not of life. which deprive

In the case of the State 24 Mo. 475, referred Phillips, in a note to section five hundred and of his valu Bishop sixty-five able on Procedure, Criminal Court seems to work Appellate have trial because the new Court below instructions granted gave to murder in the second under regard which instructions degree, defendant found of that offense, was where indictment guilty in the first was murder infer we have not degree, we [for Missouri twenty-fourth Reports testimony examine] such that he must have been at all. guilty charged, guilty So far it can understand the sustains the case, we views have we here further than and even be expressed, goes perhaps would With our we should willing go. present impressions certainly trial hesitate new because the had found him grant merely jury of a less offense than the one committed, unless indeed guilty really he himself had asked the to be instructed that distinctly jury must find him of the offense or none. if higher Then, there guilty of there was no evidence to pretense being lower any justify it become crime, would a serious doubt if degree the prisoner not be entitled to a trial it new or a But will discharge. be time to meet this it For arises. enough when perhaps question it it case is sufficient to is in our no of the violation opinion say, constitutional referred to in a clear Court, case, provision instruct there is, Court, evi dence to convict a of offense tending prisoner lower any grade than the one If at all, however there is evidence charged. any however reasonable of the case consistent with slight, any theоry under the evidence the defendant convicted be given, might of a of offense than one then the Court lower grade charged, to the nature of or of offense of a both, should instruct as lower be found grade might prisoner guilty, possibility COURT OP

The State of Nevada v. Millain. there all of fact about which to determine questions leaving men. reasonable among any controversy might there- and the legal arising Taking presumptions testimony be no but that offense there could case, from in this question than could of a Whether manslaughter. higher grade first in the to be than murder degree held of a lower grade been doubtful. Whether a reasonable somewhat being, may that he not, thought could or the mere expression Judge either that conclude under the might evidence given, jury, or else murder first guilty, degree prisoner as in this instruction a clear explicit with accompanied when in the find him of murder first that the case, might jury to is not error second degree, the-prisoner. injurious in the There is definition murder the first nothing wrong as to the the Court least to mis- degree, given nothing jury —at lead the is no real in the There distinction between meaning jury. “ “ used inferred,” Court, word implied,” in the it used statute. for the Court to tell the Nor was necessary etc., murder wait, murder in the was lying poison, first There no evidence was degree. charge killing this case. It sufficient show that was where killing was willful, murder amounted to in the premeditated, killing, unlawful first degree. The next is that the Court instructed complaint appellant that the intent to kill need not have existed for any given of time before In other

length words killing.” willful, deliberate and take in cases premeditated killing where might place kill formed at the was moment of design very striking fatal think the blow. This settled the case of The law. (See York, v. seventh New 3 Court of Clark, Selden, People Appeals, 395; also, Law, 385 see Criminal Sec. Wharton’s 1,113.) pp. The case of Criminal Park, Sullivan People, Report, in the cited from seventh and the York, overruled case New Iowa case alone stands to numerous appellant’s views, support against on the other side. authorities n the true difference murder We between apprehend simple (or in the in the first murder murder second degree) degree, COURT OE NEVADA,

The State of Nevada under statute, our does consist in the mur- time the length derer deliberated, must have at had, whether or before strik- blow, the fatal formed victim. If such ing design slay be in the first formed, however murder design was "will recently, degree. deliberate,

If it is the asked, willful, what distinction between malice statute, our killing, under premeditated killing in the is malice as used answer aforethought, aforethought; old there common did indictments, necessarily imply life. intent take The malice aforethought any preconceived intent been commit some preconceived If, instance, State, our were felony. party attempt, to commit and the blow design, preconceived given mayhem, serious than intended, should more attempt prove result; murder. The a fatal would produce preconceived of malice intent furnish ingredient to commit would felony delib- willful, there But in such aforethought. supposed.case, kill; the crime intent to would erate or consequently premeditated in the second be but murder degree. used in the Judge’s following language Appellant objects meant such a one as reasonable doubt : ordinarily

charge By usual business transactions or the or control you your govern of Jane is This to on the of life.” objected authority pursuits Commomvealth, Metcalf, The 30, referred Kentucky Reports, p. 482, U. S. Sec. 142.

to also in the Digest, p. twentieth Metcalf in our not, the in second does An of case examination it neces- of do not deem the We views appellant. opinion, support the the case to of show Kentucky into to analyzation sary go it to and this. Suffice pecu- say distinction between as in the in that case of instruction liar phraseology induced Court have might perhaps Appellate opinion decide to testimony were weigh believe they jury is Here there no such complaint. on the case weight testimony. doubt told had reasonable if any

The were plainly they jury must defendant’s acquit. guilt they instruc- serious There does objection appear and contain other than that are too long many tions given, they OE NEVADA, SUPREME COURT The State of Nevada to confuse and rather calculated which were unnecessary things than enlighten jury. other instructions asked follow- wei-e prisoner Among “ that the or other : is that the fact clothing instructed

ing jury found in the of the defend- the deceased possession property itself to is not sufficient of ant after her decease warrant him.” the indictment under against defendant finding if find the instructed, goods belonging You are even you that this is defendant, life deceased in her possession were ‘ fact no means one whose conclusive, persuasive power ” very slight.’ and the coun- refused Court, Roth these were prisoner’s sel excepted. the Court did refusing

We are right perfectly true, these the mere fact instructions. It is finding property defendant, in the had to deceased belonged possession to raise conviction, or even not be sufficient to warrant might instance, him. Eor had the defendant reasonable suspicion against there article, been had been single pawnbroker, which had deceased or three articles of belonged two property been a sus- window, found in his would hardly exposed shop the number and value hand, circumstance. On picious been found, the articles had concealed where depos- place found, ited and other circumstances which can imagine before indicate the defendant’s connected with finding, might clearly guilt. calculated to

To them such instructions as these give simply did confuse the The Court right perfectly mystify jury. them qualifica- without necessary proper refusing give tions. these instructions charge did, fact,

The Court give as the fol- explanations, the proper qualifications : show charge extracts from the main will lowing tends to in the case show property testimony of same, of the possession or some deceased, portion to the and at murder, a time alleged at defendant, quite subsequent this character of of a recent date. The weight degree SUPREME COURT OF v,

The State of Nevada Millain. is entitled in is laid his down Greenleaf in work testimony by and I have extracted from and Evidence, on as incorporate part instructions to of section of of you, my portion thirty-one £ caution third volume: to be observed necessary more or less criminal but from force in all trials, with applies point nature of the case more and demanded frequently urgently for homicide and heretofore We have larceny. prosecutions of the of a adverted instruments or the fruits possession crime affording ground presume guilt possessor; on this certain rule be can laid of universal down subject not conclusive but presumption being disputable, application; therefore to dealt and alone as infer with a mere Its and ence of fact. force value on several consider will depend In the first' if the fact of ations. stands place, possession alone, unconnected other its or circumstances, value wholly any per for the real criminal slight, suasive power very artfully the article in the or of an inno possession placed upon premises * * * * the better to conceal cent his own guilt. person, It for the to add will ‘“ necessary prosecution proof indicative of in order circumstances, to render the guilt, naked available such thing conviction, towards possession denial or his previous possession by party charged, fact, or explanation refusal false give any giving the manner incredible accounts of he or that has acquisition; of it, or to its he marks, or that has attempted dispose destroy absconded, etc., or other fled calculated circumstances-naturally him, and to corroborate against awaken the inference suspicion possession.’ ££If should be from the satisfied evidence the articles of you exhibited, watches were in clothing them, jewelry, of Julia Bulette at the time her and were possession death, at said taken carried her time, caused away person who and that the articles so taken death, found in the afterwards were of John Millain, devolved him to defendant, possession him, account for unless has explain possession by to have been means not connected with explained possession death of his deceased, reasonable upon any hypothesis COURT OE of v. Millain.

The State Nevada innocence, this other circumstances fact being supported by facts be such such indicative of will giving warranted guilt, you to establish as deem tending guilt.” proper weight you the instructions did not see that record shows harm read; done them so there was refused, or hear these instructions without defendant the Court refusing give explanation. -to the state of

Mere of law abstract applicable principles instruction of not be given way facts found in the should case, to a jury. affirmed, be

I am of should the opinion judgment its into to fix for sentence the Court directed below day carrying execution. J. Johnson,

Opinion by this all of numerous There are appeal, questions presented by have been considered foregoing opinion thoroughly very as I him the conclusion Justice; of the Chief with agree I to review all therein, attained consider points unnecessary therefore restrict behalf, inquiries made on defendant’s shall my I coincide with do not to the more material wherein fully questions of he advances such our brother in the reasoning support Beatty some additional authorities bearing upon conclusions, together case. these questions, arising is the refusal order, the first error assigned In their consecutive Black Court below to exclude D. panel grand under his oath interrogated being touching Upon compe- jurors. “ he case, as a stated he had hеard tency grand juror and had an defendant, charges against opinion touching or innocence of defendant.” “That he might guilt required for the witness purpose identifying piece property “ recovered as to deceased.” That he did not know belonging such he he called witness.” That whether would not a no interest in defendant, and was prosecutor taking the defense for offense.” Counsel for thereupon prosecution this: first, said Black for one challenged jury, in reference to the charge against was witness prosecution SUPREME COURT OE NEVADA, 186T.

The State Nevada defendant; that he had second, formed a decided expressed the defendant said offense for he had been held to This of error might answer.” assignment be of here further without properly disposed inquiry.

The stated grounds defendant’s counsel on this are by point by sustained the record. about a decided nothing Black says a word this of opinion, the criminal qualifying peculiar portion code, and used in this admit connection so as to of evidently persons on the be grand who would excluded under the more jury rigorous rule to trial whose formed or applied jurors, opinions, expressed, “ were as unqualified,” the statute. The prescribed by juror that he had an or inno- merely says opinion touching guilt ' cence of the accused.” This alone no sufficient was ground him from the excluding panel. I cannot

Furthermore, of this perceive juror wherein presence at the under or grand could, otherwise, rule, inquest statutory have as record accused, or interests of the prejudiced rights before us does not that he either a before show was witness the trial at had. grand the conviction which upon And the record is so authorize us in us presented as fully that he a As believing before either of witness juries.

I stated, this need not my judgment point necessarily farther, but pursued earnestness zeal with which counsel has our pressed attention the same question remark upon (and more phrase is due to that distin- yet complimentary justly counsellor guished his conduct of entire respect case) seem call for a more of the extended examination questions involved this point. of these must be tested insufficiency challenges by

statute State, law the common rule at irrespective Sec. 180 statutory regulations elsewhere. prevailing Criminal Practice Act as 1861, as adopted originally specified grounds first, an individual challenge grand juror: that is minor; he that he is alien; third, he is an that second, insane; that he fourth, is a prosecutor charge against defendant; he that is a witness fifth, prosecution part been has as served with undertaking bound process —or COURT OP

The State Nevada formed or that that he has decided such.; sixth, expressed the offensefor he held to is answer.” the defendant Act of the amended twenty-second This January, section was the time this 49, force at grand empanneled) 1866, p. (in “A to an individual challenge grand juror read follows: so more and for causes, one or no following bemay interposed minor; alien; that he second, third, he is a is an first, other: he insane; is the fourth, prosecutor upon charge he that the fifth seen, defendant.” will Thus against charges in force —a subdivisions section were longer and sixth counsel for defendant doubtless when fact had overlooked Black. framed the juror objections stated in the fact inferred from objections This is verbatim that cоntained repealed parts almost verbiage tenable under not have been of the section. objection the Act amended. The much less under as statute, the former “ or he as guilt that had an opinion statement simply was or he formed of the that accused,” expressed any innocence the or show in did his statement language Nor decided opinion. “ a the of that on part the former Act he witness of was meaning or bound process had been served with the who prosecution such.” as undertaking “ if insists that even a furthermore person expects But counsel lie under the fourth State,” a will the challenge to be a witness “ a to the the wit: section, prosecutor upon charge of clause The form in Section 180 stood in the defendant.” against “ a distinction taken that between the Act was the shows original a and one was “witness.” They who merely prosecutor” of one is as prosecutor classified: spoken definitely differently ” “ a witness; and if as prosecutor other indefinitely —the “ witness,” if no mean or significance to special intended in the fourth clause attached to word prosecutor,” meaning fifth clause all —but need of the at more section, why to such of witnesses challenge limiting why especially object ?” as such to as had been recognized appear subpoenaed con stood, the section as would scarcely Under originally from the on the be excluded that a could panel tended witness SUPREME COURT OE NEVADA, 1867.

The State of Nevada for the was witness ground unless it also prosecution, that££ he had been appeared to as subpoenaed recognized appear such;” therefore, whenever this of qualified has right challenge been withdrawn amendment it cannot certainly operate, would be the of the rule effect counsel, further extend urged by defendant, so as to include as rights grounds challenge such as were not before this permitted amendment. As the law stood, a or held to subpoenaed witness such, behalf of appear State, one who had formed or decided expressed as to the or innocence of a crime, guilt person accused of held to be as a case; disqualified grand but juror particular when removed, these inhibitions were it is not our policy must determine, we conclude that province change made for purpose for either express disallowing challenge of these thereafter to confine the chal grounds, privilege the causes embraced in the other section; clauses of the lenge conclusion is unsupported reason or light I conclude was not authority. juror under disqualified the law.

Before this case, branch I leaving will further remark I have no doubt that, whilst construction herein given I this section is correct, have encountered some yet difficulty determining answer defendant’s as to the proper counsel, ££ as used in legal word this Act. understanding prosecutor,” ££ That it different was intended sense witness,” word I show; and for the attempted already purposes it is case, further. unnecessary, perhaps, pursue investigation From a extended of examination range somewhat which I have here, the I bestowed conclude this: that questions arising under our of criminal the is used in limited word a system practice, This is restricted sense. stat word the greatly adoрted utes of another it is essential of an State, where validity the indictment that the name of the shall be indorsed on prosecutor States; in indictment. And such is the but in law many I taken advised, instance so far as am a marked distinction is every ££ as the as one known and such between prosecutor” person in this are For illustration: in witnesses. merely particular 30 OP SUPREME COURT Nevada

The State of “ No 1860, Act that revised provides person Pennsylvania, by be to to indictment for offense'what shall answer apy required any is indorsed name, if there soever, be, unless any prosecutor’s thereon; if no shall avow himself person prosecutor, is a there hear and determine whether witnesses, Court may there and if shall be prosecutor, private on such to indorsed such a then direct name be prosecutor, State, same In the Law, Or. indictment.” Sec. 480.) (American be No shall it an earlier whilst statute, person under provided unless to to indictment presentment, answer obliged made being name be no indorsed provision thereupon,” prosecutor’s it was held was, as the later Act to ascertain in who prosecutor a did far that the Act so as prosecutor go require in cases no exists.” Dal indorsed, should where (1 prosecutor was con I cite this that the distinction show las, 7.) authority the mere between witness prosecutor, preserved stantly indictment being conceive of an instance of an cannot well of witnesses. without presence found grand jury numerous, to the same effect as the are many above Authorities Law, Am. Secs. be found collated in Or. Vol. which will obtains; however, State, In such requirement 496-498. the indorsement is made foreman of but instead, grand and the names of witnesses examined before such are jury, . to be indorsed on indictment. also Now may prob- required in instances criminal occur many proceedings ably our code a also term used witness may prose- sense case of course he excluded under in which would be cutor, n fourthsubdivision Also, section referred to. happen witness, is not a case the there is who ..that prosecutor It is not rule show same purpose attempt would apply. my n thatthis used has no the con- as here peculiar meaning, word this word I the one believe, occurs, Inasmuch single trary. it is Act, Practice our Criminal lay .instance quite impossible its full rule cover general down sufficiently comprehensive n meaning as here used. the views of the Chief Justice Probably n onthis point correct. substantially of error is an trial second assignment objection 459 COURT OF of Nevada v. Millain.

The State terms, and in made general This orally jurors. objection panel '“ a de there had been material In and summoning drawing thus-.: to the draw from form statute prescribed by respect parture to- statute, Our allowance respect said ing jury.” distinction that must marked cases, in such recognizes challenges “ made an be A individual juror may be observed. challenge and when cause, peremptory whether peremptory orally, 335, Pr. Secs. If Act, 342.) reason need given.” (Crim. it must be in be made to the writing, panel, specifying challenge chal facts constituting grounds plainly distinctly the formal law Sec. 324.) Possibly part lenge.” (Id. on if were noted complied objections sufficiently so Court, could be the minutes records preserved facts, but it is in an authentic shape; indispensably necessary A facts, not mere conclusions be stated. state general is the case is here, ment of the ground objection, enough. be, will The need of requirement apparent inspection sections, in is made for the trial several succeeding provision law, of fact or mat issue, whether arising controverted upon re set This ters out challenge. point very fully ably this— in reference to a matter some semblance to viewed bearing Denio, that of a trial Freeman v. challenge juror People, here J., and the conclusions 31, per Beardsley, amply supports was made in the case bar in at challenge general attained. either facts stated an issue of terms. No were specific statement, which or fact could be joined, simply general This was more than a conclusion. amounted nothing legal overruled and the Court insufficient, clearly very properly challenge. ruling our are the

Next for consideration taken exceptions third ground made in reference to trial jurors, assigned bias,” in our for what is termed statute error, “implied of the Criminal embraced clause Section within eighth Practice Act: formed Having expressed unqualified of the offense or belief or not guilty prisoner on the the decided cases charged.” point shown by diversity to remark under late led the Baldwin Judge consideration 460 SUPREME COURT OE NEVADA, 1867.

The State of Nevada v. Millain. of no one civil criminal have the upon question practice decisions of Courts been more than inharmonious of upon questions of from the formation qualifications arising jurors of expression or innocence of the opinion accused.” guilt v. (People Cal. state of the on this Reynolds, 132.) law point, decisions, and character of the opposing so contradictory being induced the uncertain, California at its session Legislature first enactment, the rule settle, was supposed, legislative by have we introduced into our criminal statutes. provision As before on this shown, or belief disqualify ground, opinion formed be must one. This enactment expressed unqualified in California followed was decision.of Court by Supreme 1 Cal. in v. 379) statute was McCauley, (People fully inBut course of and enforced. time the rule under upheld statute, afterwards same became interpreted Court, much by relaxed; this decision, but the statute ultimately also, nullified, so the learned made the when Judge practically the decisions of that statement Court on the quoted, just point furnished no to other evidences of the exception undoubted question fact. These opposing rulings contradictory necessarily pro duced much confusion and embarrassment the trial of criminal those of the until cases, the Court highest grade; especially finally a convenient occasion resolved on review and estab question, rule, and definite to the lish a fixed evident conforming meaning this labor the statute. was intrusted to one Fortunately eminently considered the result which was fully very qualified, have cited from the in the case Sixteenth California pronounced as a correct has been This accepted exposition Reports. I time believe, remains, present law, unquestioned Indeed, the then Court. enunciated principles their highest number of cases since then, in a been applied particularly 18 Cal. 180. The facts which a Mahoney, People in that case are not denied different from materially challenge the construction to this In given this. judgment part my .of these later decisions is correct one. code criminal Applying made of these to the case I answers jurors, these principles Justice, the Chief that the of the Court hold, ruling must challenge. disallowing correct

SUPREME COURT OE NEVADA,

The State of Nevada The fourth is the error refusal of the ground Court below the venue. This change under the application preferred pro- visions of Sections 306 and 308 the Criminal Act, Practice several affidavits. The distinct supported ground applica- tion is that a fair and trial cannot be had in the impartial county, and which, under the must be if the code, Court sat- granted isfied that the defendant true.” Counsel representation much stress the circumstance that the lays matters contained this affidavits, should be had, are not showing why change refuted evidence; and he claims these statements by opposing must be as this true. Admit is so: does it accepted necessarily follow the of the defendant that he representation cannot secure a fair and trial in the is also true ? impartial county By means. The Court must determine the all the circum- question by stances it, and be in its surrounding guided stating judgment, presents in the form in it, which counsel proposition exercise of a reasonable and discretion. Now facts legal particular detailed in affidavits, circumstances these independent repre- the trial, true, sentation of defendant as to might literally from so a as inhabit fair a yet populous community Storey County be secured the trial of the accused. impartial jury This was the conclusion of the he Judge, whilst probably to embarrass the a unwilling prosecution by granting change an effort a venue to secure without within he county, notified defendant’s counsel that distinctly might renew if it motion should difficult afterwards appear procure it circumstances, seems to me the Under Court evinced jury. for the of both the and considerate regard rights

a prosecu- proper has defense, tion and (for prosecution rights certainly well it case often is the that the the defense, although practice rights (cid:127) lost of in anxious endeavor to of the one screen sight and as it does not from merited punishment) appear infer that the defense renewed, motion wil- may were a in that to chance ling county. Plummer,

A v. 9 Cal. decision in contained point People Court in its 298, where lower sustained ruling appeal, 180, on a 18 Cal. Also, similar v. Mahony, question. People OE 462 SUPREME COURT of Nevada The State commented on defendant’s counsel and authority cited case Justice. The last even a stronger the Chief probably it defendant, be seen notwithstanding -will against case, out Court overruled the made strong very Mahony it, he did do on the leave renew same motion, day after, and each time was refused. This rul- and again day was sustained on appeal. ing all times are at loth disturb Courts exceedingly

Appellate that the nisi on the in a criminal prius ground case solely judgment and the instances are venue, have refused Courts change instance, Eor in Califor where has been done. rare occurrence Court, of a number nia, appeals going Supreme large Lee, one, v. find but People single I involving question, on this ground, was reversed 353, Cal. where judgment later case of criticised in the even that decision is sharply People unreliable as I 261, Cal. and held Graham, authority. is no error in the of the Court refusing conclude there ruling of venue. change fifth and of error be considered under sixth grounds defects in the head, all the to the

one as go alleged exceptions taken counsel on these The points objections by indictment. the code of an first, thus : criminal requires be summed up all the essential murder that shall contain aver- indictment for law; if the has second, code ments needed at common dispensed at common the law, averments essential required with any Apt is unconstitutional. itself is The criminal of tenable. code which Neither these positions “ the forms of in criminal 232 has declared all Section pleading and the of are to be

actions, sufficiency the rules which pleadings by are this Act,” shall be those which con- determined, prescribed by is the the mandate of no of idle but law which meaning, words veys full and and The show- complete Courts should regard obey. very the sections of code bear- the of the various Chief Justice ing by this the law-making power on shows how zealously ing question, “ and subtleties to abolish needless technicalities have endeavored and in their stead as the means of invented administering justice, founded a of the unerring prin- substituted upon system pleading OE COURT State of Nevada Hillain. their the for end attainment of right of having ciples justice, is to form.” It is true there some conflict regard without but modifications, out of these decisions wherein growing statutory of full purpose given expression spirit they “ of conservatism,” but the exhibitions a code are occasional termed, of as it has been which would impede profession of more understanding arrest of a cannot enlightened progress founded; is the science of the law the true which upon principles in a to rules that would blind subservience originating with cling of rather than darkness, guided simpler comparative day has inaugu progressive spirit which reformatory precepts so far law, must be tested statute rated.” These questions ; which has out the mode of and authorities as it procedure pointed it has in effect rules that prescribed distinct emphatic ignore of action. no our determining can serve object purpose is to inform the actions, in civil or criminal par whether pleading, the other such clear facts each with ties against alleged by for the trial as to enable them to ness and distinctness prepare to those facts, or which disputed application Refine this object, admitted. mode effecting we may most of the ancient forms devoted will worshipper deny its And applica legitimate pleading. only object cases, in to criminal special tion pleading required con the defendant the code a former where (except part n brief, must be in form) viction is prescribed pleaded, into this defi be still further condensed elements pleading may : that it is a statement of a nition crime imputed prisoner, him such a enable circumstances will particularity his defense, understand and as will charge prepare the facts Court, authorize law to charged, applying give conviction.” of Code Com judgment upon appropriate (Report mission, York, 1849, New p. 141.)

Our criminal code the Code Commissioners of with New originated in it 1861, York. When originally adopted confessedly copy of this in turn conceded 1, 1851, of California Act but May of the code York to be Commis- New adaptation reported by sioners to of State before, two Legislature years (I SUPREME COURT OF 1867.

The State of Nevada Millain. believe) not then enacted. I have this with California compared and Nevada and discover Codes, no difference in respect here. question York Code were law- arising New Commission of and at yers least involved distinguished repute, upon questions of their official their matter are entitled subject opinions duty, if not Now, great controlling view weight. analogies and the between our code one York Commis- New prepared by sion, is a fact that the form of indictment in ease significant at bar meets a form of contained requirements fully of such report more Commissioners, intended supersede and common form held complex then under necessary revised statutes of I will not cumber these pages giving by the old form, but suffi their form deem quote report cient course made of to the facts (of case) applicable particular under a code of criminal I have has been shown procedure which here. This form is as follows: adopted given substantially “ Court of of Columbia. The Terminer, Oyer County the State New York John Jones. John Jones People against is accused the Grand this of Columbia by Jury County by said indictment, the crime of murder committed follows: John of Hud Jones, the first at 1849, City day January, son, without malice afore and with law, county, authority killed him a horse.” thought, William Green over with by riding It has been said that as to matters decisions are conflicting to be stated in an careful examina- necessary indictment, yet tion I think be found of the California that, will exception cases, I shall is more this conflict notice, presently apparent than real. In all of crimes and States, probably punishments are defined statute. In some the mode of by cases procedure indictment is atas introduced left, common the modifications law, with statutes; early English in fact, regarded that which may the American common In changes other States the law. statutory to the form of an the essential respect quali- indictment preserve ties law; instances, at common required few whilst California and introduced Nevada are modifications examples, their codes have left but feeble traces formality precision at that our statute common requisite So that say law. when we NEVADA, COURT 465 OE State of Nevada

The v. Millain. as murder into two felonious homicide dividing degrees precisely de I. into two VIII, 3, Statute C. Sec. divided 23, by Henry and termed murder (which manslaughter) were afterwards grees, in or that the is similar to our own Statute of 1794 Pennsylvania and second definition to murder of the first given degrees, shall in indict not fail to the differences were notice required under these statutes ment and accused trial of one such charge upon to render the and our as own. differences are so These perceptible this decisions them of value in determining founded but little upon relied The author question under the code here. mainly prevailing Criminal Procedure) keeps defendant’s counsel (Bishop num distinction the texts view, in and illustrates constantly erous to the Law From American

common law. a recent publication (the indictment for that the form of an October, Review learn 1867) we murder in use is as : there, now follows “ Queen, Gloucestershire, wit: The for our Lady jurors оf their that A. on the tenth oath, B., present day July, upon of his malice of our and Lord, 1866, feloniously, year willfully, did D.” kill and murder C. aforethought, Counsel further insists that a constitutional of defendant’s right violated, is because indictment does not conform to the require- ment common law, at and founds his on a of Section objections part that no 8, Article of the I, Constitution, State per- which provides son shall be of due life, without deprived process liberty property, V, amend- in Article of of same law.” rights preserved is held to be ments the Constitution of the United States, which States, restriction of the of the Government United pro- to the State Courts, and does not Federal apply ceedings the same is no as observe moment, But this Governments. It has been obtains in State Constitution. universally provision mean that it does not restriction, constitutional under a like held, “ ” shall be ” —or otherwise expressed proceeding process —“ manner but that the mode and law, at common the same pursued statute. be and prescribed their regulated procedure may Crim. counsel cites on point (2 Bishop which authority to this when is Prac., principlefor 58,5) Sec. opposed “by unconstitutional author such legislation being questions in the Supreme its conflict written reason of being provisions the Massachusetts to that refers law,” part undoubtedly 12, 1, Part Article Rights, called the Declaration Constitution “ be shall No is contained subject the following provisions: wherein is and. until the same offense, fully held to crime answer him.” described to plainly, substantially formally is considered That such sense which question “ The Con- for he doubt, cited, says: there can be authority discussion, will of and for the stitution States differ, present * * Massachusetts be sufficient to refer Constitution Massachusetts, (in If our Constitution terms like was.in Constitution) their used the same New Hampshire language SUPREME COURT OE

The State of Nevada ¶. a crime offense shall requiring fully plainly, described, to him,” I there formally apprehend substantially no doubt that the indictment in this case insuffi- could be ; indeed that such could not cient constitutional requirement indictment fell much short of the at be met which requisites law. common to warrant The seventh evidence point insufficiency —the

the verdict —is important involving suggestive very question, .a our Constitution, a feature of and one Courts differed. The of this Court somewhat jurisdiction appeal limited in all cases in amounts criminal offense charged VI, alone.” Art. 4, Const.) felony, questions (Sec. And the and here, Court, arises extent what inquiry a on the Court, a control the verdict of District incidentally jury the verdict. of an evidence the ground insufficiency justify its Some authorities hold that in broadest sense it is question ; aside law, be set and the verdict of a these grounds may there no make cases is whilst others a distinction between where and there is evidence. fact, evidence of a material some where 49, on Evidence, 1, Greenleaf in Treatise Volume says: page be is a not, Whether there evidence or question Judge. any evidence is a for the and as Whether is sufficient jury;” question from the -made the State’s more by We gather, particularly point the Court, and the dissenting two opinion Judges Attorney of California this distinction Court ivas recognized by Supreme in the case 31 Cal. Jones, 505. This question People I am not and therefore counsel, unwilling before us was argued by as it, it is not ultimate disposition- pass upon necessary on this so far I am and therefore point, question appeal, any be future of the concerned, ruling must regarded open holds If the have no good, Court. constitutional objection verdict ‍​​​​​​​‌‌​‌​‌​​‌​‌​‌‌​​​​‌​​‌‌‌​​​​‌​​​‌‌‌​‌‌‌​‌‍is trial ground license new award evidence, to which conclusion present my unsupported by lead then the should be affirmed. me, impressions judgment if it be a there is evi- On the other whether hand, any question fact to be estab- not in material dence or necessary any respect reasons lished I can no sufficient discover why by prosecution, of the disturbed. verdict should COURT OF Nevada The State of counsel, of error relates assigned only remaining ground cer- the Court below, charge given refusing jury by tain instructions asked on behalf of defendant. These questions have been most and in thoroughly my judgment satisfactorily answered in the of the Chief Justice, concurring opinion on the I must hold him in both his and conclusions reasoning point, taken. After a careful and well exceptions protracted defense, raised examination the many questions enforced of counsel of zeal, arguments surpassing industry I discover substantial can wherein ability, respect violated; defendant under the has ibeen wherefore right I concur in the of the' Chief Justice that judgment affirmed, and the Court below into execution appoint day carry the sentence already pronounced. J.

Dissenting opinion Lewis, this ease Judge’s charge very lengthy generally correct, clear and evincing very thorough understanding ease; I do law of find instructions which two show exhibits. same caution which the balance These charge erroneous, and entitle the are, instructions my opinion, fatally to a trial. defendant new The first of them reads as The distinction between follows: nice. I murder of the first and second will degree quite briefly distinction; from the I although apprehend state testimony that the defendant is either conclude murder of may you or innocent.” first the degree, the is a clear this violation of

In charge my portion judgment State, of this the Constitution which declares 12, Sec. Art. ofVI, to matters of fact, that shall not respect charge “Judges jurors declare the law.” the evidence and state may is to secure to the section, doubtless, of this primary object those and which advantages individual more completely perfectly of trial -to leave to their to exist in the are right by jury; supposed the It has the facts. uninfluenced finding always judgment the facts, are the arbiters of been whilst jury theory is the law. Judge expounder OP NEVADA, SUPREME COURT 186T.

The State Nevada v. Ad non so ad judiees; questionem, respondent questionem faeti “ It non Lord Coke: is the juris juratores, respondent says prov- ince of the to decide the facts and the Court to decide the jury is an is law,” which found the books. expression stereotyped through It seems to me this either means that are the expression jury exclusive of the or it fact, all; means at if the judges nothing and are to be the of the then the together fact, Judge jury judges duties of the are not defined Judge properly expression it is his if law, declare the he voice in the province has any decision of the he not facts, law, decides but also the facts. only is and been that the has are the always theory certainly jury exclusive of the facts. When the therefore, judges Judge, gives his as to or not what is opinion sufficiently proven, steps beyond the limits law for him and invades prescribes province of the This, it seems to is not the correct me, jury. only theory rests, trial but is the upon right practice cool give litigants which will full benefit of the and delib- erate of the who sworn decide the judgment issues jury, so, evidence. The is not according sworn do Judge yet known his as to the well has opinion weight testimony often a powerful His controlling weight jury. posi- character, and tion, to his learning give opinion great weight influence, whilst the mere of evidence or weighing judging of witnesses, he be no better than credibility indi- qualified vidual member of the If therefore the jury. Judge allowed the conclusions give upon of fact to be opinion drawn it is clear trial evidence, would often be a by jury mere mockery.

It be but the ridiculous practice twelve men to selecting announce the of one. Graham & Upon Water- subject in their man, valuable work New Trials, make some just very remarks, sensible fully express views my it. The Court and the author, jury,” says separate distinct offices Each should confine itself totally perform. rigidly to its own It should never former is sphere. forgotten to decide the and the latter facts. The idea that cannot a verdict unless the to them his agree upon Judge imparts notion of it should be is not to erroneous, but often leads what only OE COURT Nevada v. Millain.

Tile State of side, be on one If weight testimony clearly abuse. great is the evi- If Judge suggestion unnecessary. to it throw Judge be conflicting, manifestly improper dence the issue to be tried into scale. If either were his opinion alone, would not and and Judge jury, its of the to make evi- Court impression duty proper our are As Courts at both known felt. however present dence an an of such influence the exercise usurpation organized, plainly it is whom law party employed. against injury and the evidence reviewed and commented a case can be stated in their deliberations, as to assist the without so improp- upon jury, than this Courts are them. Further influencing directing erly nor it ever liot called go, contemplated they upon the decisions of Courts am gen- should.” I aware fully of the Judge do not view respective duty support erally have In criminal trials England Judges and the jury. influence verdict exercised controlling upon usually to convict a and in that seldom failed prisoner who way they jury, had the obnoxious to Crown. being misfortune Blackstone, whilst English Sir William admitting Judges Constitution, have the limits the British beyond prescribed by passed it as a from the resulting jurors necessity incapacity apologises the nice sometimes to determine and intricate which were questions of fortune are, them. He All submitted to says: gentlemen called to establish of their liable consequence upon property, accusation, to estimate weigh rights, injuries, of their serving lives fellow sometimes dispose subjects decide, In this situation right frequently upon juries. of nice in the solu- oaths, their and that importance, questions skill is when some tion of which legal requisite, especially blended fact, often happens, together. intimately best to do this And the even of our general jurors incapacity and has tolerable debased their has authority, propriety greatly more into the hands Judges thrown unavoidably power their than control, even reverse verdicts direct, perhaps Black. Com. (1 8.) Constitution intended.” as to far In our Courts there is a how own diversity SUPREME OF COURT 1867. NEVADA, 471

The State of Nevada Millain. the facts, the some of the Judge gomay giving opinion upon Courts as in no Massachusetts, holding, speaking strictly of the Court on a of fact is opinion question open exception,” other Courts whilst hold that should no Judge give opinion the conclusion to be from contested facts. respecting Judge drawn in Bowman v. Mills, for the Court of speaking Kentucky Appeals Bartlett, A. K. in the declares this rule Marshall, following language: “ The next was, asked and refused Court instruction by the defendants had and connection between shown privity of Innes and their This was patents question possession. of the Court to some of the facts requiring opinion with regard in the cause, to have been if there was ought given any evidence to establish the facts. The Court is conducing proper evidence a-fact; what conduces to establish judge when evidence the Court given not to on its ought express opinion but leave its with the in those cases sufficiency, weight except jury, evidence is admitted as is sometimes all its Torce, with where^the done a demurrer to evidence, and of a like nature.” by proceedings It is observable that the authorities established no clear have definite line between the that of of the province Judge in this But in jury respect. that section the Con- my judgment stitution above quoted line, establishes that restores the to a closer practice conformity gives lifcigknts theory, right the facts in having their case decided unin- by jury fluenced of the opinion This section Judge. clearly pro- hibits the their Judges giving contested fact opinion upon any case, not be suffi- saying what jury may may Thus the proven. been ciently who jury, always theoretically considered are made judges fact, so. practically They are to decide sworn who issues th.e between parties according the evidence thus left free to determine the fact as entirely their judgment dictate, uninfluenced consideration but by any there, the evidence in the case. If reason why should be influenced matters Judge upon of fact, as a direct given the same reason exists charge, surely such influence, against exercised a mere though insinuation or COURT OE Nevada

The State of I intimation for, said, intimation of as have mere already opinion; often makes much impression upon Judge opinion by If as a to find in a certain direction way. object positive the influence of the Constitution be to remove the jury beyond think such fact, matters of I decision of Judge (and influence be exerted be the manner which object) may it a is whether be direct a matter of consequence, by certainly be established instruction as to what may by positive seems of an It to evidence, intimation opinion. or the simple by of the Constitution as that the me, therefore, spirit peremptorily as to of an what .Judge may the intimation opinion by prohibits a to that effect. or not as direct charge be sufficiently proven, may it as his this case But the below Judge gave opinion of facts: either that established one two testimony jury murder in the first or that he was of degree defendant was guilty the evidence Thus his is innocent. given jury opinion a of murder in second That did not conviction degree. justify u have been a the correct Judge fact. drawn may but he was to decide evidence, cоnclusion from the whether the first or murder in the evidence established murder second to be decided That is made a fact degree. question by that “the 17, 1861, 59, declaring Section Laws p. jury; shall, be tried if before indicted for murder shall whom person any find their verdict by person thereof, designate it be for of the first or second degree.” whether murder Here, to a matter of then, below Judge charged committed the fact; it as his that if the defendant gave homicide it a willful, deliberate, killing was premeditated —that the homicide is not com- is, murder in first Where degree. or in the torture, wait, mitted means of per- by poison, lying arson, petration rape, robbery, burglary, attempt perpetrate all made under the first these cases it (in being degree) expressly of the offense degree question depends entirely upon deliberate, whether the In willful, killing premeditated. words, other intent whether the the result of a deliberate killing to take life. is not to be the crime is a which degree question

SUPREME COURT OF Nevada Hillain.

The State stated in must, fact, but like estab verdict, which any lished a of mur- Therefore, evidence. conviction justify der in the first was an intent must there degree, shown kill —to a show such state of facts or circumstances will negative a kill, intent which killing without deliberate or purpose at common murder. common law, killing would be At any which results from unlawful act, probable consequence is death, deemed murder, although killing was pre- intended, as the Blackstone “an unnatural viously cases put by son who his will, sick father the air reason exposed against died; whereof he her the harlot who laid child under leaves it; orchard, a kite struck and killed where parish officers who shifted a child from till it died for parish want parish care and sustenance.”

And so if a man the roof of throw heavy body building killed, into crowded street, means of it is person murder, kill. there no intent to though

Rut in of none these the homicide cases would be murder in the first statute, under our because of the absence of the degree delib- erate intent to kill. a conviction, therefore, To warrant murder in the first it is not committed the degree (where perpetration or to the must evidence be such attempt perpetrate robbery, etc.) to a deliberate negative any presumption killing without so; intent do or rather a intent or deliberate to kill purpose must be the Criminal Law, (Wharton’s proven by prosecution.

1083.) willful,

The statute declares deliberate and that only premedi- that is tated or means killing, perpetrated by poison, or or which is committed in the torture, wait lying perpetration be shall arson, attempt perpetrate rape, robbery burglary, that murder murder the first all other kinds of shall be degree; deemed murder in the murder in the second To convict of degree. it is first therefore as for the degree show necessary prosecution

(cid:127) in a case of this kind the deliberate and was willful, killing it is it to establish other fact. must not And premeditated, but it must be established reasonable proven, only beyond doubt. If there be a reasonable doubt whether such deliberate SUPREME COURT OP

The State Nevada Hillain. the advantage intent to kill should have existed, prisoner the doubt and the find him grade should lower of the crime. This is as to reduce reasonable doubt available Ameri the offense as to Wharton’s degree acquit entirely. (1 Law, 710; Criminal Id. can 944.) It be said that the law'would shown, pre- bеing may killing it to is but it is not be murder. pre- sume Such presumption, homicide, sumed be murder in the first The mere inde- degree. raise the manner of would doubtless pendent killing, of murder in the second As murder degree. presumption be committed in innumerable the deliberate pre- without ways, not raise meditated mere should kill, intent fact killing It kill existed. has such deliberate intent to presumption been held in the homicide is Ohio, that where Virginia proven if is That that it is in the second degree. murder presumption he must it in the first would make murder degree, prosecutor if crime, the characteristics of that prisoner establish on him. it to the burden of would reduce proof manslaughter Law, Wharton deliberate premed- Criminal 1111.) (1 ingre- itated statute makes kill, necessary attempt in one crime, be ascertained dient of this can it seems to me only of two declarations prisoner, ways express —either connected the manner of the circumstances killing witness, and it. is not killing proven eye with Where from the or wounds wound the manner of killing gathered only in a of cases is clear it would majority body, that the homicide doubt, difficult to reasonable show, very beyond intent to kill. If committed a deliberate appeared an instrument produce mortal was inflicted with likely wound be and a vital would perhaps death part body, upon the first but of murder in degree; sufficient to a conviction warrant conclusive, it means be because have might it not would by or in defense, in self sudden the been inflicted upon quarrel, in all harm, some cases inflict which bodily reckless attempt in the second be murder degree. crime the would only is that the at there was killing the case what evidence bar, Take ? the and manner which deliberate willful, premeditated Simply COURT OF The State of Nevada v. Millain.

the life of the taken, deceased the being was presdption death must been result produced have by choking strangling of a kill; deliberate intent such be a natural would presump tion, and one sufficient, a conviction of murder perhaps, justify in the first means such have degree. Killing produced by might satisfied the a reasonable doubt of the beyond premeditated intent to but kill, such fact not would establish surely conclusively it. Is it not that a have occurred between possible quarrel may the defendant and the deceased, and that in the heat of such a death ? have been the result Had such been quarrel might case it not be would murder in the first Or degree. necessarily there had been no to the suppose defendant went quarrel, house of the deceased intent and of inflicting purpose her, so choked her bodily punishment upon doing beyond his In such case the crime not be murder would purpose.

first because it would be result a deliberate degree, True, intent to kill. be such case overwhelm proof might that such intent. it to be ing convincing was Admitting it so, is a fact to be as determined yet jury, are to be satisfied a reasonable existence which they beyond doubt, it is doubt, and upon possible fact tells them that such transcends when he Judge power in this established was done case. evidence, virtually To it as his that the defendant either was give jui'y of murder in the first innocent, degree saying simply willful, that the evidence established homicide to have been a deliberate and was a fact incumbent killing, which premeditated establish, could be determ prosecution ined Had the all сase. testimony Judge by weighing told the that the evidence that the defend below showed fully ant crime, committed the that it claimed would would hardly not be “ a violation the Constitution. That not be fact,” as to matters of intent deliberate

charging yet kill, a fact as necessary proven prosecution that the death of deceased. defendant occasioned the How proof the fact that of murder in the a conviction second degree assum to be ? the evidence ascertained justified by Only by NEVADA, 1867. OE COURT of Nevada Millain.

The State to kill intent was proyen the and that deliberate ing premeditated have had might doubt. The possibly reasonable jury beyond satis have been well doubts that may some question. They upon and deceased, life of the being the fied that defendant took that the them in that, presumption satisfied of law justified satisfied murder; not have been beyond homicide was but they deliberate of a was the result a reasonable doubt that the killing life, if were to take or they intent design premediated Thus him higher degree. should have found guilty they fact, as to a matter of charged jury Judge was that such fact proven beyond assumed and it as gave haye different drawn a reasonable whilst the doubt, might jury the evidence. conclusion from means committed in this case been by

Had homicide arson, rape, in the or perpetrate attempt poison, perpetration it not be deemed error robbery burglary, possibly find defendant Court to that could only say jury they abso- him, because law of murder in first degree acquit manner murder in the makes all committed in that homicide lutely ; the fact that it establishes first when degree prosecution the burden of committed these reducing ways, if If for defendant were thing crime devolves upon possible. was com- it shown prosecution killing example means of there was no show mitted poison, attempt there no the Court means, killing might say by any with- reduce the crime murder the second degree, evidence the constitutional At least, out, violating provisions. perhaps, ours, held in California a Constitution similar to has been upon there is is killing part proven, attempt upon when offense to is not error to reduce manslaughter, prisoner to instruct the are not consider the Court would, however, That differ- manslaughter. very question from this. In that case the Court tells the case ent simply introduced no defendant has evidence to reduce an act, that the murder, the bur- contemplation manslaughter, thrown the defendant after always den proving is established Under its the homicide prosecution. right NEVADA, COURT OE 186T. SUPREME Nevada Millain. The State of that there the Court was evidence, to state the might perhaps say if such indeed the case. fact, evidence to establish a certain no were that even that con- not, however, might I do say possibly the case, But in this the Court tells that a sidered error. to it the of the establish

fact, which a prosecution was duty beyond established. That doubt, so giving reasonable was evidence, a statement that and sufficiency upon weight a fact. It is not in the there is no evidence to establish charged that the murder in counsel, nor is it claimed this indictment, or in the committed means of, case was poison perpetration arson, as there is rape, robbery; attempt perpetrate committed, that it was so rested degree proof solely it a reasonable doubt that was proven whether beyond question the result of deliberate and the homicide was a intent premeditated not, kill. it Whether was exclusive were judges, the Court erred in the instruction set out and therefore giving above. same instruction,

The other to the which my opinion open reads as follows: objections, in this case tends to of the show testimony property or some of the of the deceased, same, portion possession defendant at time to the and at murder, subsequent alleged quite * * * date.” a recent found in

This instruction assumes that the possess- property ion of the defendant of the deceased. That was property the establishment of alone the defendant question upon could have been convicted. It that be observed Court will does not tended to evidence show say property deceased; found in the to the of the defendant belonged possession did to the deceased, assuming property belong one fact —i. e., Court the evidence tends to says show simply in the defendant’s murder. possession subsequent found in Whether defendant property possession belonged to the deceased, fact to be ascertained question However, as the first instruction discussed is in jury. my opinion to reverse the I do not case, sufficient in this deem it judgment further consideration. give necessary any OP COURT Nevada

The State of is the As and certain administration criminal the swift justice and the crime, guarantee strongest public surest preventive or defeat circumstance which has order, tendency any delay to be But deplore however regretted. deeply is greatly it is the first and circumstance, paramount duty It vindicate, and of Court law. citizen respect, reck- that even to the most abandoned and not be should forgotten crime, with the most heinous and most felon, less revolting charged no man has a take from rights law guarantees right ; Court Though him no can disregard. conscientiously there and though of his crime be proof overwhelming conclusive — for be his no circumstance crime, plead mitigate nothing keen of the sword to obstruct the point legal mercy, technicality of a or indictment it is upon presentment justice yet only — crime; his he can be called to answer Grand Jury upon and be he can found the verdict of an jury, impartial only guilty by of a Court executed punished regular judgment only criminal has a words, right complete having jurisdiction; accordance to claim that shall be meted out to him exact justice to have with the strict and inflexible rules of It his right law. to the his case law governing correctly expounded clearly ; of his con- notwithstanding guilt perfectly proof may error in so clusive, material entitles him to stating law yet but ita lex rule, trial. not be a est. a new That good seripta man innocent its until his law, presumes every humanity, rules is established according adopted guilt purpose. therefore, the is so arm established, Until strong guilt him as it does the most shields law protects pure upright citizen community.

In trial should new awarded. my judgment EOR TO PETITION

RESPONSE REHEARING. Johnson, Beatty, J., J., C. Opinion by concurring. has case, A for a been filed in this and three petition rehearing relied on Those are as follows: points petition. points SUPREME COURT OE

The State of Nevada 1st. erred in one of the instructions That this Court sustaining in the Court below. given by Judge 2d. That the indictment was bad our Constitutiоn because, when

Avas that No man shall be for a adopted requiring prosecuted cap- crime, ital or otherwise infamous indictment or except upon pre- indictment in its sentment,” etc., the word used common Avas law it meant at common and meant and not Avhat what signification, be made to mean enactment. might subsequent 3d. That the examination of D. Black that he showed was and not competent verdict. juror, capable rendering impartial We will examine the in their reversed order. objections With to the third regard discussed both in oral point, argu- fully ment and the written brief of counsel. The appellant’s objection Court, examined this and we were carefully unanimously see no reason to disqualified, we juror No on thrown change opinion. light new subject.

The second Avas counsel point argued great ability by the first of this case. His brief was full on hearing certainly very read Avith care and attention the point, great argu- ments of Mr. of an indictment for murder Bishop necessity the distinction between murder of the first and second drawing examined all the We authorities cited degree. counsel, with by to; others not referred and after a careful examination many very of this the Court satisfied of the was the indict- point, sufficiency ment under our statute upon subject. counsel, in his petition rehearing, presents new argu-

ment on this He more stress than he did point. now perhaps lays in his first argument, indictment, Avord upon proposition as used in our State must be understood to Constitution, have meant an indictment as that word is understood at common law. This view case under consideration, was mature reflection could not Ave come to the conclusion counsel seems appellant’s think should have been at. arrived When the Constitution of person the United States it before was adopted, required on his trial for a crime, other infamous to be being put capital, of an indictment indicted, presented showing formality if the acted might dispensed with grand presentment. by COURT OF

The State of Nevada v. Millaiu. In other words, that it was only necessary grand jury, form, some should sanction the before a should proceeding party on his trial. put If it indictment, was meant to a common what was law require such an I am cer- indictment ? Before the Norman conquest, tain either what used in was law language proceedings, probably Latin or Saxon, in most Anglo parts England; parts, either the Danish or Welsh After conquest probably language. either all Normans, were England by legal proceedings Norman, French, or Latin. The of indictment with older forms the common we under any particular acquaintance in Latin. But been abolished were the Latin forms had system it before our Federal Constitution. England Certainly we adopted was not the intention of our the Convention formed Constitu- who tion If to reintroduce obsolete Latin form of indictment. did not intend to form, reestablish the old Latin are we to how it know that the intention to form was require particular our indictment. Even if the framers of that instrument had used indictment, term without the other and more single connecting latitudinous term it not be more it, with would rational presented to conclude meant that, before a on his they only party put trial for a certain class of offenses, convoked,” grand legally should their him, oaths a written prefer charge against stating the nature accused, of the acts dоne and the crime of which was the form of that which was leaving charge language law, stated to be heretofore had often regulated to.be been. That this their intention, think, shown clearly the use of the in connection term indict- presentment word ment. taken the framers of our Consti-

That view own tution reason to doubt. most of our there is less We have copied and most of our from the sister Constitution laws State California. before the of our Constitution that State had Long adoption passed of the more formal laws shortening omitting simplifying, many These and less of the old fashioned indictments. more simple parts formal indictments had often been sustained Cali- Courts and also the Territorial Courts of Nevada. It could not fornia, OE NEVADA, COURT

The of Nevada State have been intention framers of our to com- Constitution this State to back to the old and form of the pel almost obsolete go common law indictments. see no

We reason for on views we first changing expressed this point.

The .the in for a which we remaining point petition rehearing it deem is in of the instructions notice, one necessary regard That is in the of.. instruction complained following language: distinction of the between murder first or second degree quite I nice. the testi- will state from distinction, such briefly although I defendant conclude that apprehend mony may you either murder Innocent.” of the first degree, is that as to instructed complaint were matters fact, shall be the when Constitution alone provides they fact; in words, that the judges Court province usurped in as to fact. matters of Whilst opinion expressing are to matters judges in prohibited respect charging juries of fact, are authorized to state the It may testimony.” doubtful as to what is the exact latter of this expression. meaning It was intended to the testi- confine the hardly stating Judge, to a said. For mony, parrot-like what repetition witnesses than wisest would be less purpose competent Judge It must been intended good phonographic reporter. surely to allow the some latitude in Judge on testimony commenting he it. If If foolish state not, he should stating. say comment character Judge what may given, testimony limitation weigh will on those comments ? That you place the evidence and out the it, discrepancies comment on point corrobo- on either where one of evidence testimony side, show piece rates more another, or witnesses where the two testimony As admitted. contradict conflict one another, generally stated in our Judge may former is admitted that opinion, a given eases that there is no evidence to support determine many proposition. cases, and juries

On nonsuits civil ground granted has It acquit or advised to criminal cases. directed certainly held some been cases that Court expressed

4.82 NEVADA, SUPREME COURT OP 1867.

The State of Nevada v. Millam. to the of evidence on was not weight sufficiency any given point error. the other it hand, On has been held it be error that would where there was conflict of evidence for to the the Court say that a certain fact was or was But there is proved. jury difference in the In the first the two Judge great propositions. only free to advice, his still opinion gives leaving perfectly jury find the to the advice and fact as think giving opin- right, only they ion of as it is entitled to. In the other such weight Judge in to find a fact a сertain in commanded imperatively way, their fact as verdict to consider making up particular fully established. Child, 252,

The case of The Commonwealth v. 10 Pick. estab lishes the first Mr. case cited Justice Lewis proposition. in Marshall,is this case from 8 A. K. one opinion wherein below was asked to instruct the Court a certain positively fact had not been when in fact certain had been evidence proved, that fact. The refused to show Court give given tending instruction, and the Court held the correct. But appellate ruling their Court views the law use expressing language going far them. farther and case before go beyond They say a fact where Court should not even opinion regard express is But there a conflict of evidence. where an goes beyond the case before the far as Court amounts a mere dictum. So this case establishes second goes proposition stated, which Massachusetts conflict with the necessarily (which case. The dictum the mere result of careless probably is in conflict the case 10 Pick. ness) certainly Ybarra, the defend 166, In the case of the 17 Cal. People evidence, ant was indicted for the murder of a woman. There was the murdered declarations of among things dying she had woman, Pedro, she murdered man with whom was on trial not arrested been But the defendant who was was living. committed, after offense until the of a considerable lapse period main that he not the Pedro and his reliance before was was who had In other there words, lived with woman. ques tion as to the whether he the Pedro defendant, identity who had lived with the murdered woman, Ybarra formerly COURT OF

The State of Nevada name, a different man the same Christian bearing unfortunately and a close resemblance former personal companion (Pedro) of the murdered These facts do not woman. appear distinctly it is clear of the Court ease, reported though opinion that some kind raised in the case. The writer of this question features counsel, of this been of recollects the main having opinion in evidence the of the in that case case A witness gave distinctly. deceased, declaration of and swore that recognized dying lived, and of whom defendant as the Pedro with whom deceased had she in her The Court instructed declarations. jury spoke dying were true if of deceased that believed the declarations they dying must took from right convict the defendant. This jury as to the to the of the exercise proof sufficiency any judgment the other Pedro. Of course this was of the with prisoner identity under all rules. This does not conflict the Massachu- wrong setts case.

Some rules seem to be well established as to tolerably general how far a on evidence and his. commenting Judge may go giving be, result seems to that a thereon. The opinion general Judge may if he is on the of evidence his weight express opinion sufficiency that whilst he as careful to inform the distinctly, Judge may jury his as to its effect the evidence and comment on give opinion and. fact, are the ultimate given yet they judges

sufficiency prove any their views of its suffi fact, of the find own according This it be to the of the Court. even though opinion contrary ciency, authorities, a multitude of of the is sustained per view than the case of the N. Y. Fire none is more directly point haps Walden, 12 513. Those to further Co. v. John. wishing Insurance & find cases cited Graham will subject many investigate 310 et Trials, 1st, in their on New vol. work Waterman, seq., in vol. 3d two and 825 et volumes also at (the paging page seq., that, some to the There are dieta effect three continuous). being about matters of fact in not express opinion a ought Judge Waterman, & Graham whilst admitting jury, presence to think have been to the seem the rulings contrary, on the democratic not in this ought trespass country Judges on matters fact.. expressing opinion jury by province OF COURT of Nevada Millain. i>. The State has cannot case trial been granted find where new single We in cases unless of mere a Judge, because expression opinion wrong Court has held Judge clearly Appellate where reversed, merely has There the case been expressed. opinion seemed of an because jury expression opinion, because found accord- if the misled been by wrong opinion, instruction, the bad evidence, force notwithstanding ing the case not be reversed Court. Appellate

Here intimated an Judge complained Was not to convict of murder the second ought degree. tend- not this ? intimation correct There was clearly testimony convict the degree ing slightest prisoner It offense. true that counsel urged by might killed of murder in the deceased, prisoner yet first he killed her some sudden that have quarrel degree; may upon there the That is afterwards robbery. possible, perpetrated to adduced it, is no nor there evidence testimony tending prove have the trial a reasonable that such showing probability case. been the The To kill in this killing was choking. way by time and a continuous exertion at best tends which requires strongly that it to the idea done in a heat or sudden of negative passion, that it was be the result what intended to unexpected was only not chastisement, or of a character to death. produce injury expected the the death im- followed almost Again: woman robbery alive late at and in the she night she was morning mediately, the found dead and gone. Judging were goods experience by conduct and actions of other criminals in similar circum- if can that stances, we conceive murder had been hardly hot accident, result of blood or had murderer have would the hardihood remain to it. Pie to in the house rob long enough have fled to conceal his or to have himself guilt, given up officer, some a of his surrender and statement trusting by prompt case or own excuse crime. palliate We apprehend to effect the deliberation must have been the result required robbery of a matured well either least plan rob, murder and or at and to if house, murder plunder in out the necessary carrying main object.

(cid:127) 1867,. OF SUPREME COURT

O’Neale v. Cleaveland. see in case might can no evidence upon We of murder in the second degree. have found prisoner to the conclusion would have been forced found, Had so member, obstinate had some either with compromised doubtful conscience, with ‍​​​​​​​‌‌​‌​‌​​‌​‌​‌‌​​​​‌​​‌‌‌​​​​‌​​​‌‌‌​‌‌‌​‌‍their guilt compromised (being own into their else, power the law-making taking prisoner) man although said this shall hands, imprisoned, own only shall that for offense death declares penalty. denied. rehearing O’NEALE, Respondent, T. A. C.

WILLIAM CLEAVE Appellant.

LAND, “ ” ” by Occupant party possession Legislature as usеd Act Lands, etc.,” strictly synonymous. regard are not to the and Sale Selection ; upon occupying part tract of land Occupant dwelling means one imply party possession necessarily is in of the whole. does preferred itself would be held confer 11 in this if construed Section Act thirty-sixth occupant purchase sixteenth section privilege on the the entire occupancy; have an but taken connection might preferred give right Legislature it is intended to this sections clear that the twenty sixty hundred and acres. hundred and or three to the extent either one disposed thirty-sixth sections to be lieu of sixteenth Lands selected provisions 12 and 21 of this Act. with the of Sections accordance preferred right give Legislature intended twelfth section was occupant. preferred being shown in right actual But the extent portions 12, we to resort 11 and other of the Act Section to Section right. quantity preferred of land to be affected ascertain extent sixty quantity than hundred and acres. cannot be less one That occupant; preferred next, if no gave right first a to the actual claim Section any person applied had occupant, an then to who asserted actual locate a warrant, thirty-sixth in lieu of the sixteenth land on land selected sections. provis- an This view of the twelfth section confirmed examination twenty-first ions of the section. portions First, indicates: with other of the Act 21 taken connection Section persons preferred purchase all occupant ; shall have a over right sixty second, quantity right be limited in to one hundred and shall three any portion ; third, occupancy sec- twenty actual hundred and acres sixty if preferred not to give right to at least one hundred tion would twenty acres; fourth, purchase should be within the three hundred and preferred purchasers. time to other limited references in the notes changes accompanying statutes in in this In different have introduced States particular. California, with a of criminal stated, code procedure already all essentials like our it is is an irreconcilable con own, true there flict in the decisions. Counsel cites cases from the sixth and several ninth volumes of of his and undoubt views, these Reports in°support to the edly extent of these authorities he is sustained. The later 273; cases of People v. 9 9 Cal. Stevenson, Dolan, Cal. People v. 576, and v. 10 Judd, Cal. overrule the 313, People part princi held in ples 54; 6 Cal. 208 and and 9 Cal. 236, The v. 27 Cal. 507, the People King, question thoroughly ably State; considered Court of and in more Supreme recent Union, case, Sacramento Nov. The Cronin, (see People 13th, the case of before 1867) reviews v. King, People cited, and in its reaffirms the rules stated decision distintly case, and King therefore these latter decisions must be considered being State, settled law under the code in that as to the re of a indictment. The enunciated in these quisites good principles last two California have direct decisions application question at issue and in enunciate the correct rules of here, my judgment, construction to the code. And it under applied practice seem that the reform the Code Commissioners New suggested by after- York, State of California, first new adopted more radical introduced was but the forerunner here, wards yet into fountain-head of introduced change England —the (cid:127) 186T. SUPREME COURT OF v. Millain. State Nevada

Case Details

Case Name: State v. Millain

Court Name: Nevada Supreme Court

Date Published: Jan 1, 1867

Citation: 3 Nev. 409

Court Abbreviation: Nev.