11 Nev. 416 | Nev. | 1876
By the Court,
The defendant Avas convicted of an assault with intent to kill, and appeals from the judgment. His first point is, that the district court erred in overruling his demurrer to the indictment. Omitting the title and other formal parts, the indictment reads as fellows: “ George O’Connor is accused, by the grand jury of the county of Storey, by this indictment, of the crime of an assault with intent to kill, committed as follows, to wit: That on the twenty-third day of February, A. d. 1876, or thereabouts, at the county of Storey and state of Nevada, Avithout authority of law, and AA'ith malice aforethought, with a deadly weapon, to wit, a knife, the said George O’Connor theh and there being armed, did, without authority of law, and Avith malice aforethought, make an assault in and upon one John Winn, with intent to kill him, the said John Winn. Contrary to the form,” etc. The objections to this indictment, specified in the demurrer, are as follows: First. “Thatit is not direct or certain with regard to the date of the commission of the offense, nor is it direct or certain as to the crime or offense charged. It charges that an assault Avas committed by defendant upon one John Winn, and also charges, that said defendant was armed at .the time with a deadly Aveapon, but it does not charge that the defendant used, or attempted to use, said Aveapon upon said John Winn. It, therefore, fails to charge, except by way of averring a conclusion of law, that any offense other than that of an assault simply, Avas committed.” Second. “ That it cannot be understood therefrom, that the offense Avas committed prior to the finding of said indictment.”' The second of these objections, and the first part of the first one, may be considered together. It is
The form of an indictment is prescribed by section 235, and so far as the allegation of the time when the offense was committed is concerned, has been literally followed in this case. Section 239 provides that “the precise time at which it was committed need not be stated in the indictment, but it may be alleged to have been committed at anytime before the finding of the same, except when the time is a material ingredient of the offense.” In view of these provisions of the statute, it is plain that the time when the offense was committed is alleged with all the certainty and definiteness that either the letter or the spirit of the law requires. But it is strenuously contended that, as this indictment was presented on the twenty-sixth of February, and must have been found before it was presented; and since the rvords “on the twenty-third day of February, A.D. 1876, or thereabouts,” include, in their natural import, at least two or three days before and after the twenty-third, there is no certainty that the indictment was found after the offense was committed. It is insisted that, in order to make it conclusive on this point, it was necessary to have inserted, after the words above quoted, these additional words: “And before the finding of this indictment.” We are aware that it is not an unusual practice to include these words by way of extra precaution, but we think it is entirely unnecessary to do so. No such words are used in the form prescribed by the statute, and there is nothing in any other provision of the statute requiring any amplification of the prescribed form in this particular. Section 241 provides that “words used in an indictment shall be construed in the usual acceptance in common language, except such words and phrases as are defined by law, which are to be construed according to their legal meaning.”
There is no peculiar legal meaning to the tenses of the verb and the words “did assault,”in their usual acceptance in common language, describe a past transaction with just
Second. The defendant also moved in arrest of judgment on the ground that this indictment charges two offenses: First, an assault; and, second, as a conclusion of law, an assault Avith intent to kill. We do not think the indictment is chargeable Avith this fault, but if it Avas, it would be no ground for a motion in arrest of judgment, which can only be sustained upon the ground that the court has no jurisdiction over the subject of the indictment, or that the facts stated do not constitute a public offense. (See Statutes of 1875, page 119, sec. 8, and Comp. Laws, sec. 1918.)
Fourth. The court refused four of the instructions requested by the defendant, and this action is assigned as error. The first of these instructions was as follows: “To find the defendant guilty as indicted, the jury must find the intent to kill, under circumstances which, if death had ensued, would have made the killing murder; if they do not so find, they may find guilty of assault and battery, or, acquit.” This instruction does not present the law of the case, even if the appellant’s interpretation of the statute were correct. But he is mistaken in supposing that the statute only embraces assaults with intent to kill, where the circumstances are such as would make the killing murder. By the act of 1861, a penalty was prescribed for assault with intent to commit murder. In 1873, the section con-
The second and third instructions refused were to the effect that if the defendant, at the time of the assaidt, was so drunk as to be incapable of forming or entertaining an intent to kill, he could not be convicted as charged. It is a sufficient reason for sustaining the refusal of the court to give these instructions, that there is not a particle of evidence contained, in the record going to show that the defendant was intoxicated at the time of the assault. It is true that the court, at the request of the defendant, gave other instructions, to the effect that if the defendant was found, on account of intoxication or other- cause, not to have entertained an intent to kill, he could not be convicted of the crime charged. This does prove that there must have been some evidence of intoxication, but it does not prove that there was any evidence of such a degree of intoxication as would have rendered the defendant incapable of entertaining or forming an intent to kill.
Besides, the instructions which the court gave on this point were more favorable to the defendant than those which were refused. The jury were instructed that the intent—the state and condition of the defendant’s mind—was the very essence of the crime charged, and that drunkenness, as a fact affecting such state or condition of mind, was a proper subject for their consideration; that if he had no intent to kill he could not’ be found guilty as charged. An instruction which tells a jury that they cannot convict, if, for any reason, they find that the defendant did not intend to kill, is certainly more favorable to him than one which
But the instructions which are refused are simply filed with the clerk and are never seen or heard read by the jury. In such case, it is obvious that the defendant is not prejudiced by a failure on the part of the court to explain that an instruction is refused only because it has been already given. Not knowing that the instruction has been refused the jury need no explanation of the reason why it has been refused. If the judge reads a correct instruction aloud to the jury and announces that it has been refused, without saying why, that might prejudice the ease of the party which has asked it. But it does not appear that anything of the kind took place in this instance and certainly it cannot be presumed. There was no error therefore in the action of the court, and the appellant was in nowise prejudiced thereby. The notion that the failure to explain the reason for refusing an instruction will make that error which otherwise would not be an error seems to have origignated in California in the case of the People v. Hurley (8 Cal. 392), where it is expressly based upon the assumption that the jury are aware of the contents of the instruction so refused. Whether at that time there existed any ground for such an assumption it is not important to inquire. It is at least certain that there is no ground for such an assumption now existing in the law or practice of this State. And in California the doctrine of the State v. Hurley, after being followed for a time (People v. Ramirez, 13 Cal. 172; People v. Williams, 17 Cal. 148), has in the later cases been quietly ignored. Nevertheless, it would be well if the suggestion of this court in the case of the State v. Ferguson,—that the rea
The fourth and last instruction refused by the court is as follows: “When a.statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found by the jury as matter of fact before the jury can find a verdict of guilty.”
We see no reason for refusing this instruction unless it is susceptible of the construction that the defendant could not be found guilty of any offense unless the intent to kill was proved to the satisfaction of the jury. It does perhaps bear that construction though such is not its most obvious meaning. If it had been the only instruction which presented the law upon this point, the slight ambiguity in the latter part of it might not have justified the court in refusing it, but as the same proposition is clearly embraced in three or four other instructions asked by the defendant and allowed by the court it was right to refuse it if it had any tendency to mislead or confuse.the jury. And besides, even if it had not the slightest tendency to mislead the jury, although, on that supposition its refusal was erroneous, still the error was not prejudicial for the reasons given above. The same proposition had been stated to the jury over and over again, not in language chosen by the court, but in language of the defendant’s own choosing.
The judgment of the district court is affirmed.