State v. Glovery , 10 Nev. 24 ( 1874 )

By the Court,

Whitman, C. J. :

Counsel for appellants are right in their claim, that in this and similar cases' the intent is the gist of the offense and must be clearly established; that it is not necessarily to be inferred from the act or acts done, whatever they may be; but must be made out from an impartial consideration of the entire surroundings; which is sometimes extended beyond the immediate res gestee.

But the instructions asked and refused (which refusal is presented as error), failed to' clearly state the law, and were properly refused, as will be seen by reference thereto. Each speaks of acts of robbery. If there had been any act of robbery, then there would have been a consummation of the attempt for which appellants are indicted, and a consequent merger thereof, the lesser being swallowed in the larger crime. The law to be thereto applied would be, that the intent was to be properly inferred from the act; as every sane man is presumed to know, and knowing to intend, the natural and probable consequences of his own voluntary acts.

That the jury were somewhat unnecessarily instructed in their duties, could not have prejudiced appellants, as they were told nothing but what the law presumed them to know.

There was some evidence to sustain the verdict, which is decisive upon this Court of its sufficiency.

The order and judgment appealed from are affirmed.