State v. Kelly , 1 Nev. 224 ( 1865 )

Opinion by

Lewis, C. J.,

full Bench concurring.

All presumptions being in favor of the regularity of the proceedings of the Court below, we cannot say that it erred in excusing the juror John Gillig. He did not himself recollect whether he was on the Grand Jury who found the indictment against the defendant or not, and it appears that the record by which that fact -might be ascertained could not be found. Had Mr. Gillig been one of the Grand Jurors who found the indictment, it would have been error to have allowed him to. act upon the trial jury in this case, and if that fact was shown after verdict, it would have necessitated a new trial. When there is any probability that a juror is disqualified, and the Court is unable to determine it, by reason of its inability to establish the fact constituting such disqualification, as in this case, it is not required to hazard the regularity of its proceedings by permitting such person to sit as a juror, but may excuse Mm. It is claimed, however, that sufficient search was not made for the record; but that is a fact which cannot be determined here, for the reason that the Judge below may have as clearly satisfied himself by a search of five minutes duration as he might in five days, that the record could not be found, and as that was a matter resting entirely in his discretion, and as there is no evidence to the contrary, we must presume that everything that the exigency of the case required was done.

Indeed, it seems that in cases of this land, the right of the Court to discharge a juror at any time before he is sworn and charged with the cause, is fully sustained by the authorities. (2 Graham & Waterman on New Trials, 192; Stewart v. The State, 1 McCook’s Ohio R., 66; United States v. Cornell, 2 Mason, 91; Haines v. The State, 6 Humph. R. 597.)

In the case of The States v. Cornell, Judge Storey uses the following language:

“Even if a juror had been set aside by the Court for an insufficient cause, I do not know that it is a matter of error if the trial had been by a jury, duly sworn and impanelled, and above all exception. Neither the prisoner nor the Government in such a case have suffered any injury.”

The second assignment of error is, the giving of instructions four, six and seven, asked by the prosecution.

Instruction four is a literal copy of section 21 of the Act concerning crimes and punishments, laws of 1861, and certainly was not impertinent to the facts as they appear upon the record. Instructions six and seven also seem equally free from exception, and correctly placed the law of the case before the jury.

All the language used by the Judge below, in his charge to the jury, to which defendant takes exception, was employed only in a hypothetical case, used in explanation of the crime with wMch the defendant was charged, and could in no wise prejudice him in the minds of the jury. The sentence “A ruffian out of mere wantonness, firing into a crowd upon a sudden motion, is as guilty as if he had lain in wait for -his victim,” had no reference to the defendant. The language was only used in defining the crime with which he was charged, and was necessary to enable the jury to determine whether the facts in this case constituted such crime.

There is a material distinction between the case of The People v. Williams 17 Cal. 147, and the one at bar. In tha tease language was used by the Judge at nisi prims, which might have been taken as an indication of his conviction of the prisoner’s guilt. The deceased was spoken of as the “ victim ” of the defendant. The judgment, however, was not reversed upon that point. But no such expressions are used in this case with reference to the defendant, and there seems to be nothing to indicate the opinion of the Court below as to his guilt or innocence.

Judgment affirmed.