11 Nev. 334 | Nev. | 1876
By the Court,
The defendant in this ease appeals from a conviction of highway robbery. The indictment under which he was tried contains two counts, in the first of which the ownership of the property taken is laid in one Brown, who, as the testimony shows, was merely the driver of the stage upon which it was being conveyed. The second count lays the property in "Wells, Fargo & Co. In other respects it is identical with the first. It appears from the bill of exceptions that when the case was called for trial the district attorney “in open court elected to proceed under the first count of the said indictment, and to offer no evidence under any other count, and did not during the progress of the trial offer any evidence under, any other count of said indictment except the said first count of said indictment.”
But this same bill of exceptions proceeds to show that, notwithstanding this election by the district attorney to confine himself to the first count of the indictment, he did introduce evidence which proved very clearly that some of the property taken at the time of the robbery belonged to Wells, Fargo'& Co., and which did therefore in fact support the second count, although we must suppose it was not intended for that purpose. Under these circumstances the defendant, at the close of the trial, requested the court to instruct the jury that if Brown, who was alleged in the first count to be the owner, was merely the driver of the coach as the servant of the proprietors, they must find a verdict of not guilty. The refusal of the court to give this instruction is assigned as error, and is made the basis of a
Besides, even if the appellant were right in the proposition for which he contends, it is not by any means certain that his instruction ought to have been given. The district attorney was not bound to make an election, and confine himself to one count of the indictment. The very object of the statute in allowing the same offense to be charged in different counts, is to prevent a variance, and that object would be entirely defeated if the district attorney could be compelled to abandon every count but one before the trial. In this case it does not appear that the court compelled an election, and so far as does appear, it was entirely gratuitous on the part of the district attorney. As the defendant had no right to demand the election in the first place, he had no right to insist upon adherence to it unless, in consequence of reliance upon its being adhered to, he had done or omitted to do something by which he would have been prejudiced. But he does not show that he changed his position in any way in consequence of a reliance on the
The defendant also objected to the following instructions given by the district judge in submitting the case to the jury.
Fifth. “If you believe the evidence given in this case, in order to convict, the circumstances should be such as to produce nearly the same degree of certainty as that which arises from direct testimony, and to exclude a rational probability of innocence. The circumstances ought to be of such a nature as not to be reasonably accounted for on the supposition of the prisoner’s innocence, but perfectly reconcilable with the supposition of the prisoner’s guilt.
Seventh. ‘ ‘ The term reasonable doubt is a term often used. ” (Quoting the definition given in Commonwealth v. Webster, and continuing.) “The jury must be satisfied from the evidence of the guilt of the defendant, beyond a reasonable doubt, before the jury can legally find him guilty of' the crime charged against him; but in order to justify the jury in finding the defendant guilty of said crime, it is not necessary that the jury should be satisfied from the evidence of his guilt, beyond the possibility of a doubt. All that is necessary, in order to justify the jury in finding the defendant guilty, is that they shall be satisfied from the evidence of the defendant’s guilt, to a moral certainty and beyond a reasonable doubt, although it may not be entirely proven that the defendant, and no other or different person, committed the alleged offense. And if the jury are satisfied from the evidence, beyond a reasonable doubt, that the defendant committed the crime charged against him, they are not legally bound to acquit him because they may not be entirely satisfied that the defendant, and no other person, committed the alleged offense.” Both of these instructions were given and on appeal approved in the case of the People v.
This quotation from the opinion of Judge Sanderson sIíoavs in clear and forcible terms that the first instruction complained of Avas correct. In regard to the second, he merely says: “What has been said thus far is also a sufficient answer to the objections made to the charge of the court upon the subject of reasonable doubts, as Ave consider they amount to nothing more than' hypercriticism.”
The judgment of the district court is affirmed.