3 Nev. 409 (Nev. 1867), State v. Millain

Citation3 Nev. 409
Opinion JudgeBEATTY, C. J.
Party NameTHE STATE OF NEVADA, RESPONDENT, v. JOHN MILLAIN, APPELLANT
AttorneyC. E. DeLong, for Appellant: J. S. Pitzer, for Respondent:
Judge PanelBEATTY, C. J. LEWIS, J., did not participate in this decision. JOHNSON, J., concurring. LEWIS, J., dissenting.
CourtSupreme Court of Nevada

Page 409

3 Nev. 409 (Nev. 1867)

THE STATE OF NEVADA, RESPONDENT,

v.

JOHN MILLAIN, APPELLANT

Supreme Court of Nevada

October, 1867

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APPEAL from the District Court of the First Judicial District, Storey County, Hon. RICHARD RISING presiding.

The facts are stated in the opinion of the court.

Judgment affirmed.

C. E. DeLong, for Appellant:

As to exceptions to grand jurors, see People v. Jewelt, 3 Wend. 313; 6 Wend. 386; Whart. Am. Cr. L. 120; 6 Serg. & Rawle, 395; Burr's Trial, 38; 1 Chit. Cr. L. 307; Stat. 1866, p. 49.

The common law authorities do not distinguish between causes of challenge to grand or petit jurors. (5 Bac. Ab. 353.) The names were not put in the box and drawn in open court as required by law. (Stat. 1866, sec. 6, p. 192.)

The court erred in refusing to allow the challenges interposed for implied bias. (Stat. 1861, p. 470, sec. 340; Ex parte Vermilyea, 6 Cow. 562; People v. Gehr, 8 Cal. 362; People v. Reynolds, 16 Id. 132; People v. Woods, 29 Id. 636.) The court erred in refusing to grant a motion for change of venue. (Stat. 1861, p. 407, secs. 306 and 308; People v. Mahoney, 18 Cal. 186; People v. Vermilyea, 7 Cow. 398; Gra. & Wat. on New Trials, 1001; People v. Webb, 1 Hill 182.)

The court, upon appeal, possesses a revisory power over the action of the court. (People v. Lee, 5 Cal. 353; 5 How. Pr. 25.)

The indictment does not contain a statement of acts constituting the offense, or the particular circumstances of the offense charged. (Practice Act, 234-6, 286, 430, 431 and 433.) It should state the facts upon which the prosecution relies, so that the accused may be prepared for his defense. (6 Cal. 236 and 208; Chitty's Cr. Law, 172, 228, and 281; Whar. Cr. L. 873; Bish. Cr. L. 332; 9 Cal. 31 and 54.)

A party indicted must be brought within the very letter of the statute. (2 Barber on Cr. L., p. 541, 547; Haydon, Case 4, Co. A; 1 Arch. 831; 2 Bish. Cr. Pr. 543; State v. Fouts, 4 Green, Iowa, 500; 22 U.S. Dig. 289; 1 Bish. Cr. Pr., secs. 348, 373; People v. Enoch, 13 Wend. 159.) The indictment must charge an intent to kill. (10 Ohio, N. S., 459 and 598; 21 U.S. Dig. 283, sec. 14; 2 Bishop Cr. Pr., sec. 280.)

As the indictment fails to charge any willful, deliberate, or premeditated killing, or that it was feloniously done, it is self-evident that it does not charge the defendant with the crime of murder in the first degree.

The words in section 8 of article I, State constitution, and article V amendments to the constitution of the United States, are used in their common law sense. For definition of indictment at common law, see 1 Bouv. L. Dic., title "Indictment;" 2 Bish. Cr. P., secs. 562-597; 23 U.S. Dig. 289, secs. 6, 7, 8, and 9; 4 Green's, Iowa, 500; 1 Whar. Am. Cr. L. 400; Chitty Cr. L. 242-3. The words "malice aforethought" do not signify that the person killing meant to kill. (2 Bish. Cr. P., 592, 561; 2 Bishop Cr. Law, sec. 742.) The words "malice aforethought" do not embrace the words in substance "deliberate and premeditated." (23 U.S. Dig. 289, sec. 9; secs. 234 and 236 Crim. Pr. Act, Stat. 1861, 460 and 461.)

The court erred in its instructions relating to the different degrees of murder. (People v. Dolan, 9 Cal. 583; 2 Bish. Cr. Pr. 584 and 590; 10 Ohio N. S. 459; 21 U.S. Dig. 284, sec. 40; 21 Cal. 544.) The instruction that "it will be necessary for the prosecutor to add the proof of other circumstances indicative of guilt," is violative of article VI, section 12, of our State constitution. (See also Stats. 1864-5, 113, sec. 23, to same effect.)

The charge that "the distinction between murder of the first or second degree is quite nice," etc., is subject to the same objection. It is an axiom of the law that it will not permit that to be done indirectly which it forbids to be done directly. (People v. Ybarra, 17 Cal. 170, 171; People v. Gibson, Id. 284, 285; 20 U.S. Dig. 481, secs. 126, 134; 21 Id. 284, sec. 40.)

Again, the court erred in stating that the intent to kill "may be inferred from the circumstances." (21 Cal. 546.) And that intent need not have existed for any length of time. (4 Green, Iowa, 500; 23 U.S. Dig. 290, sec. 23; 1 Park Crim. 347; U.S. Crim. Dig. 326, sec. 580.) And as to the meaning of reasonable doubt. (Jane v. Commonwealth, 2 Met. 30; 20 U.S. Dig. 482, sec. 142.)

The instructions asked by defendant clearly state the law, and there is no justification in the reply that the same law was substantially stated in the charge. (People v. Ramirez, 13 Cal. 172.)

J. S. Pitzer, for Respondent:

As to the challenges to the jurors cited Stat. 1866, 49, sec. 180; Stat. 1861, 468, sec. 324. The indictment strictly conforms to Stat. 1861, 459 and 460, sections 234 and 235, as amended by section 6, page 126, Stat. 1867. For definition of "murder," see Stat. 1861, 68, sec. 15.

The fourth error assigned is not well taken. (See Stat. 1861, p. 468, sec. 324.) And therefore the challenges for implied bias were properly overruled. (See Stat. 1861, p. 470, subd. 8 of sec. 340; also The People v. Reynolds, 16 Cal. 128; People v. Vermilyea, 7 Cowen 121 and notes.)

The attorney-general argued the case orally for the respondent.

BEATTY, C. J. LEWIS, J., did not participate in this decision. JOHNSON, J., concurring. LEWIS, J., dissenting.

OPINION

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By the Court, BEATTY, C. J.:

This is a case of conviction for murder in the first degree. The several grounds of error which the appellant assigns we will notice seriatim.

The first point made is, that the court below erred in failing to sustain his challenge to a grand juror named D. Black. Black, on an examination touching his qualification as a grand juror to act in this case, said substantially that he had heard of the charge against the prisoner, and had formed an opinion touching his guilt or innocence; that perhaps he might be called as a witness in the case to identify a certain piece of property as having belonged to deceased; that he was not a prosecutor in the case. The defense objected to the grand juror participating in the examination of the charge against him, for two reasons: First. Because he was a witness for the prosecution; and, Second. Because he had already formed an opinion as to his guilt or innocence; and upon the ruling of the court that Black was a competent juror to investigate the charge and join in finding an indictment, excepted.

In argument it is contended that defendant was just as much entitled to an impartial grand jury in making the preliminary examination on which the indictment was found, as to an impartial jury

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to try the charge after it was made. In support of this proposition we are referred to several authorities. The opinion of Chief Justice Marshall in the Burr trial is perhaps the authority entitled to most weight on this point. We have no copy of Burr's trial in this place, and there is none in the State that we are aware of. We cannot, therefore, have the means of ascertaining the grounds on which that great jurist based his opinion. But as the congress of the United States have never, so far as we are aware, passed any law touching the qualification of grand jurors, we presume the opinion or ruling in that case must have been based either upon common law principles or upon the ground of natural justice. This latter ground was probably the one on which the chief justice acted. In the case of The People v. Jewett (3 Wend. 312), the New York court seems to have followed the rule laid down by Marshall; or to speak more accurately, say they would have followed the rule if the objection to the grand juror had been interposed at the proper time. These are the only cases we find supporting such an objection to a grand juror, except in those cases where there is some statute authorizing a party accused to interpose a challenge to grand jurors on account of bias.

When the ruling of Chief Justice Marshall in the Burr trial was called to the attention of the supreme court of Massachasetts, that court not only refused to be governed by it, but expressed their strong disapproval of the case, and thought it the only case of the kind to be found in the books. They refused to remove a prosecutor from the panel of a grand jury before whom a capital case was to be investigated. (Tucker's case, 8 Mass. 285-6.)

We think at common law a grand juror might be the prosecutor, the only witness in the case, and still participate in finding the bill. (Whart. Crim. Law, section 453 to 458, and notes.) But whatever may have been the rule at common law, or whatever the principle of natural justice, our statute fixes the disqualifications and the only disqualifications, of grand jurors. The statutes of 1866, 49, amending a former act, provide that "a challenge to an individual grand juror may be interposed for one or more of the following reasons, and for no other: First. That he is a minor; Second. That he is an alien; Third. That he is insane; Fourth. That he is the prosecutor upon a charge or charges against the defendant."

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It is not pretended that this grand juror is shown to have labored under any of the disqualifications here mentioned, except as to that of being a prosecutor. We cannot conceive that there is anything in the record tending to show that he was a prosecutor. Bouvier defines a private prosecutor to be "one who prefers accusations against a party whom he suspects to be guilty." This is a very correct definition, and certainly is not broad enough to include a mere witness in the case, who is not shown to have taken any part in...

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