Lead Opinion
Whеn the transcript on appeal in this case was filed in this court it contained over eight hundred pages. Upon the oral argument it was ascertained that the clerk, at the request of counsel, had, with оther irrelevant matter, inserted all the testimony submitted at the trial, although not embodied in any bill of exceptions.
At the close of the argument we made an order that the transcript be returned to the clerk of Washoe county,.with instructions to eliminate therefrom all matters contained therein that were not, by the provisions of sections 450 and 480 of the criminal practice act (1 Compiled Laws, 2075, 2105) made part of the record in a criminal case. It came back with only one hundred and fifteen pages, and still contains an affidavit made by T. W. W. Davies, of counsel for appellant, setting forth what is claimed to have been an irregularity upon the part of'the counsel for the state in his closing argument to the jury, and the instructions given to the jury by the court of its own motion.
These ought not to have been included in the transcript, because not embodied in any bill of exceptions.
After what has been said by this court in The State v. Forsha,
1. The question of jeopardy and the power of the court to grant a new trial, although not asked for by the defendant, is settled by the former decision in this case. (State v. Rover,
2. The court did not err in admitting the voluntary statement of the defendant as taken down on his preliminary examination befоre Job Davis, a justice of the peace in Humboldt county. The justices of the peace can select clerks ad libitum to perform the clerical labor of writing out the testimony taken upon the preliminary examination, but must see that they correctly perform the duty. In this case the statement was written by clerks under the direction and in the presence of the justice. It was read by one of the clerks, аt the request and in the presence of the justice, to the defendant. It was corrected in every particular desired by the defendant. The defendant, before making the statement, was fully advised by the justice of all his rights. In short, the record shows that sections 152,154,155 and 156 of the criminal practice act (1 Compiled Laws, 1780, 1782, 1783, 1784) were in every respect fully complied with. In the absence of any evidence tending to show thаt the witnesses were not excluded pending the examination of defendant, as provided for in section 158 (1 Compiled Laws, 1786), we cannot presume that the justice did not conform to this provision of the statute. The interlineations in the statement were satisfactorily explained and the missing portions of the certificate properly accounted for and supplied. The provisions of the law respecting the manner in which the statement of defendant may be taken having been complied with, the statement was admissible in evidence against the defendant, upon the trial of the case, under the general principles applicable to the admissibility of confessions. (1 Greenl. on Ev., secs. 216, 224; 1 Phil. on Ev., 535; 2 Id. 242; State v. Lamb,
4. The objections urged by appellant’s counsel, that the court erred in having the verdict read to the jury and recorded on Sunday, and in discharging the jury and designating a day upon which he would pronouncе judgment, are wholly untenable. The statutes of this state expressly provide that the courts may be held on Sunday: “ To receive a verdict or discharge a jury.” (1 Compiled Laws, 955.) When the verdict is given, “ the clerk must immediately record it in full on the minutes, and must read it to the jury and inquire of them whether it be their verdict.” (1 Compiled Laws, 2043.) The power given to the court to sit on Sunday to receive the verdict, necessarily authorizes it to have the verdict then read and recorded, to discharge the jury, and make such other orders as are incident to the power given by the statute. (McCorkle v. The State;
5. The court did not err in refusing to give the second instruction asked by defendant’s counsel. It reads as follows: “In order to justify the inference of legal guilt from circumstantial evidence, the existence of the inculpatory facts must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. This is the fundamental rule by which the relevancy and effect of circumstantial evidence must be estimated.” This instruction is copied from Wills on Circumstantial Evidence, 149. Burrill states the rule correctly, as follows: “The evidence against the accused must be such as to excludе, to a moral certainty, every hypothesis but that of his guilt of the offense imputed to him.” (Burrill on Cir. Ev., 737.) He
The ruling ought, however, to be sustained upon broader grounds. The words “absolutely incompatible,” as contained in the instruсtion, in their usual signification, imply that the proof of defendant’s guilt must be established beyond - the j>ossibility of a doubt. This is not the law. (State v. Ferguson,
The judgment and order overruling defendant’s’ motion for a new trial are affirmed, and the district court is directed to fix a day for carrying its sentence into execution.
Concurrence Opinion
concurring:
In regard to the third point disсussed in the foregoing opinion, I consider it doubtful whether the record shows satisfactorily the materiality and relevancy of the answers made to MeWorthy’s inquiries in regard to the deceased. But I am satisfied thаt if any error was committed in admitting them, it could not possibly have injured the defendant. All that those answers (aside from those that were stricken out) had any tendency to prove was that the deceased had not been seen at places away from the mining camp subsequent to the time when, according to the de
I concur in tbe judgment and in all other particulars in tbe opinion of the chief justice.