8 Nev. 291 | Nev. | 1873
By the Court,
It is objected by the appellant, convicted of murder in the second degree, that he was not allowed to make the final argument to the jury. The statute is as follows: * * * “When the evidence is concluded, unless the case is submitted to the jury on either side or on both sides without argument, the counsel for the people must open and must conclude the argument.” * * * “ When the state of the pleadings requires it, or in any other case for good reasons and in the sound discretion of the court, the order prescribed in the last section may be departed from.” “If the indictment be for an offense punishable with death, two counsel on each side may argue the cause to. the jury, in which case they must do so alternately.” * * Stats. 1861, 472, Secs. 355, 356, 357. The court may change the order of argument, and in case of the allowance of two counsel must require the argument to alternate. It did not see fit tó change the order (and no cause therefor save the request of appellant appears of record) and did so arrange the order of argument that counsel alternated, the prosecution having the close, as the statute peremptorily requires. There was no error in this.
It is again objected that the indictment is insufficient. A careful perusal satisfactorily shows it to be perfectly good, though perhaps through excess of caution containing more than the statute demands; but in this superfluous matter, if so it be, there is nothing to perplex one of ordinary understanding nor to injure this appellant.
The objection was frivolous and exceeding cool. He could not have been legally sentenced in his absence, which was voluntary; and it would have been a vain thing for the court to have fixed while he was at large any definite time for his sentence other than it did fix; that is, some day when he could be produced at a term of court. The statutory requirement that a day be fixed for sentence is for the benefit of the convicted person. In this case the appellant had secured the benefit, and then of his own volition deprived himself thereof. If he lost any thing thereby he had nobody but himself to blame, but in fact he did not lose any thing and was clearly liable to recapture and subsequent sentence at any day of any term thereafter. Any other conclusion would render the administration of the criminal law a farce.
It is further objected, that the court refused the following instruction: “If the jury believe from the testimony that the defendant was laboring under an insane delusion, whether such delusion was founded in fact or not, that he was about to receive a great bodily injury from the attack made upon him by deceased, and that under such circumstances the killing took place, then that' the killing was justifiable and that they must acquit.” Admitting this requested instruction to be good law, there is no evidence reported in the transcript, and consequently nothing upon which this court could say
That the court properly may give, as in this instance it did, instructions of its own motion was held in State v. Burns, ante, 251: there can be no possible question of its right under the statute. These several assignments of error have been specifically overruled, >as the case must go back for anew trial upon another point, and it is well to clear the way therefor.
After giving the statutory definitions of homicide in all its various branches, the court gave the following instructions (which have been numbered for convenience of reference): “ No. 1. The above, gentlemen, is the law of homicide as applicable to this ease, and is found in the book of statutes as enacted by the first legislature of this territory in A. D. 1861. 2. A careful examination and study of those several provisions of the statute law will doubtless give you great assistance in arriving at a correct conclusion in your solemn deliberations. 3. This defendant, William H. Pierce, was indicted in November last by the grand jury of the County of Ormsby for the alleged murder of one George Wilson. The cause after due proceedings had in the district court for Ormsby County was transferred to this the County of Douglas for trial.' 4. You, gentlemen, are now trying and are expected in due time to render your verdict upon the issues of law and fact raised by this indictment and the plea of “ not guilty,” which was entered thereto by the prisoner at the bar. 5. The law presumes every accused person to be innocent until his guilt has been fully proved by legal testimony beyond any reasonable doubt. 6. You as jurors are alone the judges of all questions of fact. You are 'carefully to weigh the testimony which has been allowed before you by the several witnesses and harmonize the same if practicable with some intelligent theory as to the facts involved in this trial. Upon no mere question of fact can the judge offer you any assistance or advice. You will therefore see what are the responsibilities resting upon sworn jurors in
This charge has been quoted entire that it may of itself, without any very critical exposition in words, illustrate and sustain what will be summarily said thereof in this opinion. In it there is much that is unnecessary and confusing, if not absolutely erroneous: notably, paragraphs two, six, seven and nine balance at best so giddily upon the verge of error that one dreads to look lest they fall therein. Of the whole production it is not improper to suggest that in a case plain and simple as this appears from the record to have been, where probably the only matter pressed for defense was in mitigation of or in exculpation from a confessed and admitted homicide, it is the obvious and easy duty of the court trying such case to make its instructions terse and direct under the well settled rules of law, without indulgence in rhetoric or exhortation.
If this is proper to be said generally of the charge as an entirety, what language shall be used with regard to paragraph eleven ? A casual reading produces the conviction, only intensified by careful study, that it is so palpably and flagrantly erroneous that it must have been supposed an inadvertence in the use of language, were it not for the incomprehensible fact that it passed the ordeal of an application for a new trial in the district court and is seriously supported by the prosecution in this. Such being the case, deference thereto requires a glance at the authorities.
' Under the indictment here and the statutes of this State, the appellant if convicted could be so of murder in the first degree, murder in the sepond degree or manslaughter, according to the proofs; and to find either grade of guilt the jury must be satisfied thereof from all the evidence, beyond a reasonable doubt. Such the general rule of law: thus the statute: “ A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt be satisfactorily shown, he is entitled to be acquitted.” Stats. 1861, 472, Sec. 358. So the district court substantially charged. On the
Under the strictest rule, there is this distinction always to be borne in mind between evidence tending to prove guilt and that tending to mitigate or disprove, whether it come from the prosecution or defense: that tending to prove guilt must be established beyond a reasonable doubt; that tending to mitigate or disprove, by a preponderance of testimony. So when the jury considers whether an asserted fact of defense has or has not been proven they must decide whether the evidence pro or con outweighs; if the former, the fact is proven; if the latter, it is not. If not proven it is out of the case. If proven, it takes its place along with other received proof ; and if upon the whole evidence from both sides, as finally settled, there is any reasonable doubt of guilt either in existence or degree, the defendant has the benefit of such doubt, either to acquit, or to reduce the grade of crime. State v. McCluer, 5 Nev. 132.
The rule is stated strongly and clearly by the supreme court of California thus: “Proof beyond a reasonable doubt is necessary to establish a fact against the prisoner; but preponderating proof, proof necessary to satisfy a jury of the fact, is sufficient to establish the fact in his favor. But it must go to this extent, otherwise there is nothing on which the jury can found their belief and warrant them in considering the fact proved. It is not sufficient therefore to raise a doubt, even though it be a reasonable doubt, of the fact of extenuation, simply because it is no proof of the fact.” People v. Milgate, 5 Cal. 127; People v. Coffman, 24 Cal. 230.
It has been held in some isolated cases, of which State v. Spencer, 1 Zab. N. J. 196, and Rex v. Offord, 5 C. & P. 168, are examples, that where insanity is set up as a substantiye
There being no evidence submitted by the transcript, the appellant admits that if under any legitimately conceivable state of circumstances the instruction under review could be correct, it must be sustained. Erom the record it appears that witnesses were sworn on his behalf; so then it must be presumed that apart from the proof by the prosecution of the res gestee, he endeavored to give evidence in mitigation, to reduce his offense from murder to manslaughter. To make this effective what degree of proof was necessary P A preponderance, says the rule hereinbefore laid down; not that it was necessary for him to establish to the satisfaction of the jury by preponderating proof, that there were circumstances to mitigate, justify or excuse the homicide. That was decided, in State v. McCluer, supra, to be an erroneous statement ot the law, in that the jury would conclude therefrom that the proof on defense must preponderate over the proof made by the prosecution; and it is said in Commonwealth v. York, which is considered of the strictest sect in criminal decisions: ‘ ‘ But if the case on the evidence should
It never was required to go further: and yet the jury in this case was instructed that the circumstances of mitigation must be proven beyond a reasonable doubt. If any other construction could be given to the language of the instruction, “If you believe from the testimony beyond any reasonable doubt that at the time and place above named the said George Wilson inflicted upon the person of this defendant a serious and highly provoking injury,” etc., it would be the duty of this court to give it, as by the transcript all presumptions are in its favor; but it cannot be forced into any other form unless the words “ beyond any reasonable doubt ” be excised bodily. It is too late to do that now. The jury heard the charge; if from the whole thereof and from this instruction in particular they formed any idea, it must have been that the degree of proof required from each side, prosecution and defense, was the same; and that all matter offered in evidence by either stood on the same plane and must be proved beyond any reasonable doubt.
Yiew this instruction in any legal light, even were such as multiform as the whirling changes of a kaleidoscope, and it must remain as it was written, wrong — so baldly, indefensibly wrong, that its giving entitled the appellant to a new trial.
It was insisted by respondent that this charge of the district court should not be here examined, as it was not properly part of the record, having only become so by virtue of an amendment made, against respondent’s objection, to appellant’s bill of exceptions after the statutory time of settling and filing the same had long expired. The transcript shows
No technicality except by' the express letter of the law should ever deprive an accused person of a substantial right. If, as was suggested on the argument (not in the best taste), such rule confers in this special case a benefit on one unworthy, the answer is, the law knows no person; it is not made for the individual man; but for men. As the dew of heaven falls, so it bears alike upon the just and unjust.
It was perhaps unnecessary to attempt to add anything to the exhaustive reasoning of Chief Justice Lewis in the case of The State v. McCluer, supra, decisive of this; but it has been attempted, in the hope that a unison of ruling might be produced between this and. the nisi prius courts, which would prevent the certainty of present delay, perhaps the ultimate failure of justice, hardship to defendants, expense both to them and the counties of trial, and, last and least, trouble to the courts, for they are “born unto trouble as the sparks fly upward.”
The order, denial of motion, and judgment herein appealed from are reversed and the cause remanded for a new trial.
