State v. Parsons, 7 Nev. 57

State v. Parsons

7 Nev. 57 | Nev. | 1871

By the Court,

Garber, J.:

The first point made by appellants is, that the indictment chai’ges more than one offence. The same question, on the same indictment, was made and disposed of in State v. Chapman, 6 Nev. 325.

*60It is assigned for error, that a portion of the testimony of Gilchrist, a witness for the prosecution, was given during the absence of one of the jurors. But it clearly appears from the record, that the testimony so given was immaterial, and that, as soon as the attention of the court was called to the. fact of the absence of the juror, the same testimony was repeated to the twelve jurors. It is therefore evident that the irregularity complained of could not possibly have operated to the detriment of the appellants. The argument of counsel is directed to the fact of the absence of the juror, rather than to the reception of testimony by the other members of the jury during his absence. In order to preserve them from any outside influence, the jurors sworn to try an indictment for felony, when not in court, should be kept in charge of the sworn officers of the court. Doubtless, a showing of exposure to improper influence, such as separating unattended by an officer, under circumstances affording opportunity for tampering, corruption or .the like — in other words, an irregularity which might have affected the verdict — -would throw upon the state the burden of proving that the irregularity was not and could not have been prejudicial to the defendant. But this record discloses no such irregularity. All that appears is that, while the witness was testifying, one of the jurors who had been absent came into court. We think, until the defendants show the contrary, the fair presumption is that the juror was absent by the p'ermission of the court and in charge of its officer.

The next assignment relates to the remarks made by the ¡court in overruling the motion to discharge Chapman. We cannot regard the affidavits copied into the bill of exceptions. They do not appear to have been filed or used on the motion for a new trial. The certificate of the judge to the bill of exceptions is conclusive on us. From this it appears, that the remarks of the judge simply affirmed the making out-cf a prima facie case against Chapman. It is not pretended that this was error of which these appellants can complain.

The other errors assigned,"and not disposed of in State v. Chapman, are founded upon the assumption that the evidence does not justify the verdict. We cannot consider them, for the reason that *61the bill of exceptions and the statement fail to show affirmatively that they contain all the evidence tending to prove the facts as to which a failure of proof is alleged. Sherwood v. Sissa, 5 Nev. 353; Com. v. Merrill, 14 Gray, (Mass.) 417.

The judgments and the orders appealed from are affirmed.