State v. Warren , 18 Nev. 459 ( 1884 )

By the Court,

Leonard, J.:

Defendant was convicted of murder in the second degree. He appeals from the judgment, and the order denying his motion for a new trial. The bill of exceptions, as signed and settled by the court, shows that at the trial, in the presence and hearing of the jurors, the court remarked as follows:

“I will not give defendant’s instructions, numbers seven and eight, for the reason that I do not remember of any testimony given in this case .teuding to show that the deceased ever made an assault upon the defendant, Warren, or that there was any attempted assault made by deceased on Warren, at the time of the killing; but the jurors are the exclusive judges of the facts of the case.”

Before judgment was prououuced, and before filing his motion for a new trial, defendant objected to that part of the bill of exceptions which purported to state the remarks of the court above referred to, and claimed that they were not as set out in the bill of exceptions as settled. He excepted, also, to the action of the court in striking out of the bill of exceptions what is claimed to have been a copy of the reporter’s notes of the court’s remarks, and he asked leave to make proof of the remarks that were in fact made. There is nothing in the record showing that counsel for the respective parties agreed that the remarks of the court were as stated in the bill of exceptions prepared and presented by defendant. We ueed not, therefore, express any opinion as to what would have been the effect of such an agreement. It is now urged that the court erred in refusing to permit defendant to intaxluce evidence showing what remarks were made. .The civil practice act (Comp. Laws 1252) provides a remedy in civil cases, when the court refuses to settle a statement according to the facts claimed by the moving party, but in the criynincd practice act there is no such proyision. In California both the civil and criminal practice acts provide a remedy for such cases. The question is, whether, in the absence of a statute, this court has any power in the premises. We do not think it has. The statute makes it the duty of the trial court to settle the bill of exceptions according to the facts, and this court is obliged to take it, aud act upon it, as signed and settled. The legislature has left the settlement to the lower court, without providing relief iu case of real or imaginary error. Without affirmative legislative action this court is powerless. Upon the point that the court erred in striking out the reporter’s notes of the remarks made, it is enough to say that the reporter’s notes are not iu the transcript, and if they were, we should hold that the court had the right to settle the bill according to the facts, and that such was its duty. (State v. Larkin, 11 Nev. 321.)

Wo come now to the question, whether the court’s remarks set out above entitle defendant to a new trial. The record shows that defendant admitted killing Darling, but that he set up the defense of justifiable homicide. He testified that the deceased threatened his life at different times, and 'especially on the evening previous to the homicide. Other witnesses corroborated his statement in this respect. Defendant’s testimony is substantially this : That he met deceased the evening before the homicide. Deceased tapped defendant on the shoulder and said he wanted to see him. Defendant stepped aside, and deceased said there were three ---that he was going to kill, and defendant was one of them; that he would fill defendant full of holes; that deceased had a big pistol in his pocket, which he started to pull ; that he raised his hand to hit defendant, and said, “I will see you again, you dirty---;” that subsequently, during the evening, he was warned by different persons to look out for deceased ; that, fearing an attack by deceased during the night, he put two chairs against the door, and threw himself down across the bed with his clothes on ; that he got up early the next morning and went to the hotel by a back way. After stopping there about an hour he walked outside, and saw deceased down the street, and to keep out of his way, went into the barroom and walked up and down the floor for a while ; that Darling came along, when defendant was within about two feet of the outside door, and said, “I have got you now,” when defendant pulled his pistol and fired three times before deceased fell; that he thought Darling had a pistol, although he did not know it; that at the time of the shooting deceased had his hand in his pocket, where he had his pistol the previous evening, lie also testified that “when he (deceased) saw me, he started in after me. He made a dart at me,- and just as he came at me I fired two or three shots before he got down.” Green testified for defendant that he saw Darling stop at the hotel door; that he made a move as if he was going in; that he had one hand in his pocket; that he heard him say something, but did not understand the words; that somebody^ said, “You come to threaten my life again.” Witnesses testified that deceased was quarrelsome, especially when drinking, and that he was larger and stronger than defendant.

“An assault is an unlawful attempt, coupled with a present ability^ to commit a violent injury upon the person of another.” (Comp. Laws 2852.) Counsel for the state clo not deny that there was testimony which, if credited, tended to prove an assault upon defendant. Whether or not that testimony was credible was for the jury to decide, as well as, whether, if credited, in connection with other evidence in the case, it was satisfactory proof of an assault.

Defendant requested certain instructions, which were refused, for the sole reason, as stated, that the court did not remember any testimony tending to show that Darling made, or attempted to make, an assault upon defendant at the time of the killing; “but,” said the court, in the same connection, “the jurors are the exclusive judges of the facts in the case.” It being unnecessary, we do not decide whether the court might have made the oral remarks under consideration, if, in fact, there had been no evidence of an assault. The question is, was it error to make them in view of the fact that there was such? It was of the first importance to defendant to show that Darling assaulted him at the time, or made demonstrations which, in view of all the facts, justified him, as a reasonable man, in believing that he was in danger of losing his life of receiving great bodily harm. Former threats alone did not excuse him. They were of little, if any, value to him in his defense, except in connection with acts committed at the time of the homicide. It follows that, if the court’s recollection of the evidence, as stated, was correct, the defense of justification fell to the ground. The court was not required, in denying the instructions, to make these or any remarks tending to a misconstruction of the evidence. There was no occasion or demand for any comments, the natural tendency of which was to satisfy the minds of the jury upon a material question in controversy, without a careful consideration of the evidence given. That such was their tendency we cannot doubt. So certain was the court that there was no testimony tending to prove an assault, that the instructions were refused for the reasons stated only. The jury had good reason to think they would not have been refused, if the court was aware of any testimony tending to prove an assault. They bad good reason to think, also, that the court would not have refused instructions, apparently unobjectionable in other respects, without being convinced that there was no testimony of the character mentioned ; and the natural tendency of the remarks that accompanied the refusal was not materially changed by the use of the words, “I do not remember.”

Jurors presume, and they have a right to presume, that courts remember testimony, if it is given, that is vital for or against either party ; and this is especially true when the court unhesitatingly rules as it would have done if, in fact, there had been no such testimony. It cannot be said the court would have had a right to state, in the presence of the jury, that there was no testimony tending to show an assault upon defendant, even though it had been said, also, that the jurors were the exclusive judges of the facts, notwithstanding the opinion of the court. If such remarks’ would have been erroneous, were not those under consideration equally so ? If there is testimony tending to show an assault, may a court say, “I will not give this instruction because 1 do not remember any such testimony, ” but cannot say, “I will not give it because there is no such testimony ?” In one case, as in the other, under the constitution and laws, the jurors are the exclusive judges of the facts, and they are so told by the court. If the court says “there is no such testimony,” still the jurors are the judges of the facts, and their legal duty is to examine the evidence and decide upon it, without reference to the judge’s opinion. In Tickel’s Case, 13 Nev. 510, we said: “It is entirely natural that jurors do, and proper that they should, listen attentively to, and be greatly influenced by, all remarks of the court. They have the right to confide in its expressed opinions, and it is their duty to obey its legal instructions. It may be said that jurors are presumed to know the law that the court has not the right to instruct them, or give any opinion, upon questions of fact; and that, therefore, they ought not to be and will not be influenced thereby. In my opinion experience does not justify such conclusion; but, at any rate, courts cannot presume against the natural result of remarks or instructions improperly made. If the court, in this case, had informed the jury that it had no right to comment or instruct them upon questions of fact, and that they must not be influenced by what it might say, still its expressed opinion-must have influenced them. They would have known the opinion of 'the court then, as now, and it would have left its impression upon their minds.”

Suppose the court had said, “I will not give these instructions because I do not remember any evidence tending to sustain defendant’s claim or defense of justifiable homicide.” Can any one doubt that the effect of such remarks would have been to prejudice the minds of the jury against defendant? If the court fails to remember important facts in a case, and so states in the presence of the jury, is it not most natural for the latter to take the court’s view without examination, instead of carefully weighing the testimony as it was given ? In State v. Ah Tong, 7 Nev. 152, this court said: “Under our practice, the judge should intimate no opinion upon the facts. ‘If he cannot do so directly, he cannot indirectly ; if not explicitly, he cannot by inuendo; and the effect of such an opinion cannot be obviated by announcing in distinct terms the jury’s independency of him in all matters of fact.’ (State v. Dick, 2 Winst. 47.) One object is stated to be, to guard agaiust the well known proneness of jurors to seek to ascertain the opinion of the judge, and to shift their responsibilities from themselves to the court.”

The vice of remarks like those under consideration, whether they be “there is no such testimony,” or “I do not remember any such,” is not that they take from the jury their right to judge of the facts, but is that they throw the weight of the court’s opinion into the scale opposed to defendant, when he has the right to be judged by the evidence as construed by the jury, uninfluenced and uubiased by any opinion of the judge. The natural tendency of the remarks made in this case was to convey the idea to the jury that in the opinion of the court no testimony was given for the purpose of proving an assault upon defendant, or that the testimony offered and admitted for that purpose did not tend to prove an assault. In either case, the impression conveyed or opinion expressed was erroneous, and the result may have been to lead the jury into the error entertained by the court.

It is said by counsel for the state that, when the court refused the instructions upon the grounds stated, defendant’s attorney should have refreshed the judge’s memory by stating the testimony, and asking that the reporter’s notes be read. This argument might or might not be sound (a question we do not decide,) if the question under consideration was whether the court erred in refusing the instructions asked ; but it certainly has no merit where the error complained of is the making of the remarks in question. Defendant’s counsel had the right to ask the court to give these instructions. The court’s duty was to refuse them if they were not law, or were inapplicable to the case; but it was not justified in refusing them for the reason that there was no evidence to support them, if such there was ; and it had no right to convey the idea to the jury that there was no evidence tending to show an assault, in the face of the testimony which, if believed, did tend to prove that material contested fact. Nor was it any part of the duty of defendant’s counsel to correct the court’s error after the remarks had been made. He was not there for that purpose.

There are several decisions of this court that bear upon the question under*consideration, to which we refer : People v. Bonds, 1 Nev. 36; State v. Ah Tong, 7 Nev. 152; State v. Harkin, Id. 381; State v. Tiekel, 13 Nev. 509; dissenting opinion of Mr. Justice Lewis in State v. Millain, 3 Nev. 468, referred to and approved by the court in State v. Ah Tong, supra. See, also, Shirwin v. People, 69 Ill. 56; Fisher v. People, 23 Ill. 294; Sullivan v. People, 31 Mich. 4.

Judgment and order appealed from reversed, and cause remanded.