State v. Davis , 14 Nev. 407 ( 1879 )

By the Court,

Hawley, J.:

Defendant was indicted and tried for the crime of an assault with intent to kill. The jury found him guilty of “ an assault with a deadly weapon, with intent to commit a bodily injury upon the person of Albert Standinger.”

1. One Laforge, upon being examined by defendant’s counsel touching his qualifications as a juror, testified that he had read in the Carson Appeal what purported to be a detailed account of the alleged commission of the crime charged against defendant; that he had forgotten whether, from the reading of said account, or from any other information, he had formed or expressed an unqualified opinion as to the guilt or innocence of the defendant; but that it was possible, if he was taken as a juror, when the testimony was delivered, whatever opinion (if any) he might have formed, might be revived in his mind. Counsel for defendant then asked said juror, “ Whether or not, if his memory was refreshed by an exhibition of a newspaper article purporting to give an account of the transaction in question, he could answer whether he had formed an unqualified opinion touching the matter in issue ?”

Did the court err in excluding this question ? Certainly not.

If for no other reason, it was properly excluded because counsel did not limit the question to the particular article the juror had read in the Carson Appeal, but referred generally to any “ newspaper article purporting to give an account of the transaction.”

2. Defendant objected to proceeding with the trial, on the ground that the testimony taken on the preliminary examination of defendant had not been reduced to writing, and also on the ground that several of the witnesses who testified upon the hearing were absent from the state, and were not present at the trial; that the testimony of said witnesses was material to the defense; that in the absence of the written testimony defendant’s present attorney and defendant himself were unable to properly cross-examine the witnesses for the state who were present at the trial.

It was admitted by counsel for the state that the testimony at the preliminary examination had not been reduced to writing, and that some of the witnesses who testified before the magistrate were absent from the state.

In our opinion, the court did not err in proceeding with the trial. Upon this point — as well as the preceding one— the defendant failed to lay the proper foundation to have the question considered on its merits.

In justice to the state as well as the defendant, the testimony given at the preliminary examination ought always to be reduced to writing and authenticated as provided in section 151 of the criminal practice act (1 C. L. 1779). If the defendant waives this right, the state ought to insist upon it. The practice of waiving preliminary examinations, or dispensing with any of the statutory requirements in regard thereto, is irregular and ought to be discontinued. (Ex parte Ah Bau, 10 Nev. 265.) It is questionable whether the defendant could avail himself of this irregularity, if at all, except upon a writ of habeas corpus, on the ground that he was illegally restrained of his liberty. But in no event could he, at any time, avail himself of such an irregularity, without an affirmative showing that he was deprived of the statutory right without his consent. No such showing was made in this case. So with reference to the absent witnesses. There was no affidavit presented to show that their testimony was material or that any effort whatever had been made to procure their attendance.

8. The club or wagon spoke with which the alleged offense was committed was introduced in evidence Avithout objection. The defendant testified in his own behalf that he struck Standinger Avith the club; that he was intoxicated and excited at the time of the difficulty, which occurred at a gambling table; that Standinger said something to defendant which displeased him; that bitter words ensued; that Standinger arose in his chair and defendant struck him in the forehead Avith the club once and then walked away. The testimony for the prosecution tended to show that the blow was struck by the defendant Avithout any provocation; that defendant came up behind Standinger, and upon his turning around towards defendant the bloAv was inflicted. The defendant claimed that he did not carry said club for the purpose of striking Standinger, but that he carried it as a means of self-protection against one McArthur, with whom he had a difficulty shortly before, and that McArthur had made threats against him of personal violence. Counsel claim that defendant Avas not guilty of any offense except that of assault and battery. Upon this state of the case, counsel for the defendant asked the witness McArthur: ‘ ‘ What were your relations witli the defendant, and was there any difficulty between yon and defendant on and previous to December 19, 1878?”

This question the court refused to allow the witness to answer. We think this action of the court was correct. The proposed testimony was wholly irrelevant. It did not tend to show the intent with which defendant struck the blow. Under the facts of this case it was immaterial for what purpose defendant carried the club. He may have procured and carried it for the purpose of protecting himself against McArthur, but that fact would not relieve him from any responsibility for his acts if he assaulted and struck Standinger without any lawful excuse or provocation. It was the character of the weapon and the manner in which it was rised (not the purpose for which it was carried), taken in connection with the facts and circumstances of the assault, that indicated the intention of the defendant.

4. The court did not err in leaving the question to the jury whether the club used by defendant was a deadly weapon.

It was peculiarly within the province of the jury, under the facts of this case, to determine, as a fact, whether the club in defendant’s hand, as it was used by him, was likely to produce fatal consequences or not. The law is well settled that when it is practicable for the court to declare whether a particular weapon is deadly or not, the question “is one of law for the court, and not of fact for the jury” (1 Bish. Cr. L., sec. 335, 3d ed.), but in all cases where the character of the weapon in this respect is doubtful, or where the question depends upon the particular manner in which it was used, the question should be submitted to the jury. (State v. Rigg, 10 Nev. 290; State v. Jarrott, 1 Ire. (L.) 87; U. S. v. Small, 2 Curtis, C. C. 243; Rex v. Grice, 7 C. &. P. 803.)

5. The several objections urged against the instructions are not well taken.

The court is not bound to give instructions in the exact language used by counsel, even if correct; but may add to, or change, the phraseology in order to make the language more clear and explicit, or to prevent the jury from being misled.

If the defendant had desired a more explicit instruction relative to reasonable doubt, it was his right and duty to have prepared such an instruction and asked the court to give it. (State v. Smith, 10 Nev. 106; Gaudette v. Travis, 11 Id. 149; Solen v. V. & T. R. R. Co., 13 Id. 153.)

Without further noticing the objections, it is sufficient to say that all the instructions as modified and given by the court are substantially correct, and that no error prejudicial to defendant appears therein.

The judgment of the district court is affirmed,