State v. Raymond

*104 By the Court, Hawley, C. J.:

1. Tlie indictment in this case is for murder and is drawn in the approved form of the common law. The motion to set it aside and the demurrer thereto were properly overruled. The objections made are frivolous.

2. We think the testimony of the witness Allen was properly admitted in rebuttal of the testimony of the defendant.

3. The several objections to the court’s charge are not well taken. It is well settled that the entire charge of the court must be considered, and if it clearly appears therefrom that no error prejudicial to defendant has been committed, the appellate court will not disturb the judgment. The specific objections urged by counsel are not deserving of any extended review. The charge upon the question of provocation is fully sustained by the authorities. (Wharton’s Am. Cr. L., secs. 970-1.)

The court, in instructing the jury as to what constituted malice, gave the general instead of the legal definition of the word. If we admit that the legal definition has a different meaning from the general definition given by Webster and used by the court, it is apparent that the legal definition is more comprehensive, and if any error occurred it was against the state and in favor of the defendant. (State v. Stewart, 9 Nev. 131 ; Commonwealth v. York, 9 Met. 104 .)

The phrase, “from the foregoing it will be seen that murder is the result of malice,” when taken in the connection where it appears, is not erroneous. The court had clearly and correctly defined the degrees of murder and had properly instructed the jury as to the law of self-defense, and there is not oven a bare possibility that the jury could have' been misled upon the question as to what facts were necessary to constitute the crime of murder.

The same may be said of the clause objected to in regard to reasonable doubt. “Such doubt, moreover, should not be merely captious, but such as is entirely consistent toith the theory of the defendant’s innocence.” Every doubt which a *105 j uror entertains of defendant’s guilt must, in a legal sense, be consistent with the theory of defendant’s innocence, and it is difficult to determine what particular qualification of the term “reasonable doubt” was intended to be given by the insertion of the words we have italicized. But in no sense could the jury have been misled to the prejudice of the defendant. Immediately preceding the clause in question, the court charged the jury, that “the defendant is presumed in laAv to be innocent until the contrary is proven, and in case of a reasonable doubt existing in your mind, whether his guilt be satisfactorily shown, he is entitled to be acquitted.” Immediately after, the court adds: “You must be convinced of-tlie guilt of the defendant before you convict him.” -Again, at the request of defendant’s counsel, the court gave this instruction: “The jury must be entirely satisfied of the guilt of the defendant, or they must acquit him.”

The charge and instruction upon this point were-certainly as favorable to the defendant as the law would warrant. (State v. Ferguson, 9 Nev. 118 ; Commonwealth v. Webster, 5 Cush. 320 ; State v. Ostrander, 18 Iowa, 458 .)

The other portions of the charge objected to, when considered with the portions not objected to, clearly and correctly stated the law applicable to the particular facts of this case. (Wharton’s Am. Cr. L., secs. 965-7; 1 Bish. Cr. L., sec. 412; 1 Russ on Crimes, 539-40; Wharton’s Law of Homicide, 42-3.)

4. After examining the jurors McClintock, Peers, Fredericks, Francisco, and Wilson, as to their actual state of feeling toward the defendant, and as to all matters from which a bias against the defendant might be inferred, the defendant by his counsel interposed “ a challenge to the panel herein upon the ground that the juror McClintock expressed actual bias against the prisoner, and also the jurors Peers, Fredericks, Francisco, and Wilson, expressed themselves in such a manner toward the prisoner as to imply bias upon their part, and that the law permitting said jurors to be of the panel is unconstitutional.” It is evident that this cannot be considered as an objection to the panel of jurors. The *106 statute provides, that ‘' a challenge to the panel can only be founded on a material departure from the forms prescribed, by statute in respect to the draining and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.” (1 Comp. L. 1947.)

There is no pretense that theobjection to thepanel is made upon either of the grounds specified in the statute, nor does it appear that the challenge was in writing specifying plainly and distinctly the facts constituting the grounds of challenge, as required by section 324 of the criminal practice act. (1 Comp. L. 1948.)

A challenge to the panel is not allowed for any of the grounds set forth by counsel, and hence as a challenge to the panel it was properly overruled. A strict construction •of the language used would result in the conclusion that the only challenge interposed by counsel was á challenge to the panel. But if it was also intended as a challenge to the individual jurors therein named, then the challenge for implied bias is subject to the further objection made by the attorney-general, that it does not specify any ground of challenge for implied bias as provided by section 340 of the criminal practice act. (1 Comp. L. 1964.) As the jury law of 1875, under which the court acted in impaneling the jury, was unconstitutional, although at the time of the trial of the case it had not been so declared by this court, the proceedings should have been conducted under the law as it existed prior to the passage of the act of 1875. (State v. McClear, ante, p. 39.) In order, therefore, to have properly presented this question, counsel should have pursued the course adopted in The State v. McClear, and challenged the jurors for “having formed or expressed an unqualified opinion or belief that.the prisoner was guilty or not guilty of the offense charged,” if that was the ground of challenge upon which they relied.

Section 342 of the criminal practice act expressly provides that: “In a challenge for an implied bias, one or more of the causes stated in section 340 must be alleged.” (1 Comp. L. 1966.) The statute points out nine distinct causes of challenge for implied bias, and it has been decided *107 in this state that tbe defendant must specify one or more of tbe particular grounds upon which be bases bis challenge. (State v. Squaires, 2 Nev. 230 .) Tbe same rule prevails in civil cases. (Estes v. Richardson, 6 Nev. 128 .) And such lias been tbe uniform current of decisions in California under a statute identical with our own. (People v. Reynolds, 16 Cal. 130 ; People v. Hardin, 37 Cal. 259 ; People v. Dick, 37 Cal. 279 ; People v. Renfrow, 41 Cal. 38 ; People v. McGungill, 41 Cal. 429 .)

But, owing to tbe peculiar wording of tbe challenge, and it being evident from tbe record before us thai tbe court below considered- tbe challenge as having been properly made, and based its decision upon tbe constitutionality of tbe act of 1875, we have concluded to waive tbis preliminary objection, and examine tbe question upon its merits.

Tbe juror Peers, in bis examination, certainly evinced a strong desire to be excused from serving as a juror. He bad formed an opinion and expressed it; but it was not an unqualified opinion. His information was derived from “bar-room talk,” and be did not know whether any of tbe persons witb whom be conversed about tbe case were witnesses or not. He was not acquainted witb tbe defendant. He did not entertain any deliberate or fixed opinion or belief as to tbe guilt or innocence of tbe defendant. Upon tbe principles announced by us in The State v. McClear, it is clear that tbe court did not err in overruling tbe challenge to tbis juror.

Admitting that tbe court erred in not appointing -triers to try tbe challenge of actual bias to tbe juror McClintock, and also erred in overruling tbe challenge of implied bias to tbe jurors Wilson, Francisco and Fredericks, what is 'the result ?

Tbe record shows that two of tbe objectionable jurors, McClintock and Wilson, were peremptorily challenged by tbe state. As to 'them it is apparent that tbe defendant suffered no injury by tbe erroneous ruling of tbe court. Tbe jurors Francisco and Frederick were peremptorily challenged by the defendant. Under tbe law of 1861, as amended in 1865, tbe defendant was entitled to ten peremp *108 tory challenges. (1 Comp. L. 1960.) The court allowed the defendant to exercise twelve peremptory challenges, two more than the law allowed. By this - error in his favor the defendant was enabled to get rid of the. objectionable jurors and still had the ten peremptory challenges to which he was entitled. He was not required to exhaust any of his peremptory challenges against either of the jurors that were disqualified by law. No substantial right was taken away or impaired. The defendant was not deprived of any of the privileges guaranteed by the common law and secured by the constitution of this state. He had a fair and impartial jury, and this we decided in The State v. McClear was the ultimate object to be secured by the constitutional right to challenge a juror for principal cause and to the favor. Is it not, then, perfectly apparent that no injury occurred to defendant by the erroneous ruling of the court?

In Fleeson v. The Savage Silver Mining Company, the supreme court of this state said that “the rules governing the impaneling of juries, the introduction of evidence and the general conduct of trials, are but the means by which such right is to be obtained,” and that if it appeared “that a departure from them did not defeat or affect the ultimate object of the trial, it would be a mockery of justice to set aside a judgment, otherwise proper and regular, because of such departure.” And it was there decided that if a juror is challenged for cause, that challenge is overruled, and he is then challenged peremptorily, there does not necessarily arise , any inference that the challenging party is thereby injured; that an injury could only arise in case the challenging party was compelled to exhaust all his peremptory challenges, and afterwards have an objectionable juror placed on the panel for the want of another challenge. This general principle, to which we adhere, has been frequently decided in both civil and criminal cases. ( 3 Nev. 163 , and authorities there cited; People v. Gaunt, 23 Cal. 156 ; People v. Weil, 40 Cal. 268 ; People v. McGungill, 41 Cal. 429 ; State v. Cockman, 61 N. C. 95 .)

5. It is certainly too well settled by the decisions in this state to require any discussion upon the point that this *109 court will not reverse a judgment in a criminal case on the ground that the verdict is contrary to the evidence where there is any evidence to support it. (State v. McGinnis, 6 Nev. 111 ; State v. Ah Tom, 8 Nev. 214 ; State v. Glovery, 10 Nev. 24 .)

In this case there was some evidence to sustain the verdict.

The judgment of the district court is affirmed.