Ex parte Curnow

• Decision Date: 23 June 1890
• Docket Number: 1,323.
• Citation: 24 P. 430,21 Nev. 33
• Parties: Ex parte CURNOW.
• Court: Nevada Supreme Court

24 P. 430

21 Nev. 33

Ex parte CURNOW.

No. 1,323.

Supreme Court of Nevada

June 23, 1890

On application for writ of habeas corpus.

Baker & Wives, for petitioner.

Peter Breen, Dist. Atty., for the State.

HAWLEY C.J.

Petitioner was jointly indicted with William Curnow for the crime of murder. The charging portion of the indictment is as follows "That heretofore, to-wit, on or about the 13th day of September, A. D. 1889, *** in the county of Eureka, state of Nevada, the said defendants, William Curnow and Nicholas Curnow, did then and there feloniously, unlawfully premeditatedly, and with malice aforethought, shoot and wound one William Courtney and inflict upon the body of him, the said William Courtney, a mortal wound, of which mortal wound the said William Courtney. *** on or about the 18th day of October, A. D. 1889, *** died." They were jointly tried under this indictment and found "guilty of an assault with intent to kill," and upon this conviction the court sentenced this petitioner to six years' imprisonment in the state penitentiary, where he is now confined. Petitioner contends that his imprisonment is illegal, because, as he claims, the verdict is absolutely void, and that the court had no jurisdiction to impose such a sentence.

Is the verdict rendered by the jury responsive to the issues raised by the indictment? Can a defendant under an indictment for murder be convicted of any offense less than manslaughter? The answer to these questions depends to some extent upon the evidence that was submitted at the trial, and it is questionable, to say the least, whether under the writ of habeas corpus they can be reviewed where the petition simply sets forth the indictment and verdict. It may be that under the proofs in this case the verdict was contrary to law, wholly unwarranted and unauthorized by the evidence. The only question, however, which we are called upon to determine in this proceeding is whether in any conceivable case, under any possible state of facts, such a verdict can be sustained upon a charge of murder in the form mentioned in the indictment. If it can, then it is admitted that petitioner should be remanded to the custody of the warden of the state-prison. Our statute provides that "in all cases the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense charged." Gen. St. § 4292. It must be admitted that there are many cases where the crime of an assault with intent to kill is not necessarily included in the crime of murder. A defendant may, in certain cases, be convicted of murder in the first degree when the evidence clearly shows that there was no intent whatever upon the part of the defendant to kill the deceased. If a defendant sets fire to a house, without any knowledge that it is inhabited by any human being, with the intent only to commit the crime of arson, and a person therein was killed by the burning of the house, the defendant could be indicted and found guilty of murder. Id. § 4620. So in all the cases enumerated in section 17 of the act concerning crimes and punishment where the killing is committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary. Id. § 4581. This is precisely what was meant, and all that was decided, in State v. Lopez, 15 Nev 413, cited by petitioner, wherein it was said that under this statute "there may be murder without any intent to kill."

There are other cases, that need not be here enumerated, where a conviction for murder could be sustained against a defendant without any direct proof of an intent on his part to kill, murder being the natural result and consequence of his unlawful act. But the assault and the intent with which the assault is committed by the defendant are, in a majority of cases, essential links in the chain of evidence necessarily included, as material ingredients constituting the crime of murder. These acts, being included as a part of the entire transaction, must necessarily be considered in determining the crime, if any, committed by the defendant. If the crime of which the defendant is convicted can be legally carved out of the crime of which he is indicted, the verdict is not void. In all cases of murder, where the injury inflicted by the defendant is the mediate or immediate cause of the death, the jury would only be justified, under an indictment for murder, in finding the defendant guilty of murder in the first degree, murder in the second degree, or manslaughter.

In People v. Adams, where the defendant was indicted for murder, and convicted of assault and battery, the supreme court, upon appeal, said: "It is certainly a little singular that an assault which is followed by death as its result should be regarded as anything but homicide. If a crime at all, it must have been murder or manslaughter, and a verdict clearing a party from that guilt is not in accordance with common sense." 52 Mich. 25, 17 N.W. 226. But let us suppose a case where the deceased is assaulted by the defendant with the intent to kill him, and the deceased dies within a year and a day thereafter, and the defendant is indicted for the murder upon the theory of the prosecution, that the death was the result of the injuries inflicted by the assault; but upon the trial the evidence upon the part of the defendant shows, to the satisfaction of the jury, that the deceased did not die from the effects of the wound, but from other causes entirely independent of the effects of the assault. Would not the jury, in such a case, be authorized to find the defendant guilty of an assault with intent to kill? In such a case, would not the crime of an assault with intent to kill be necessarily included in the higher offense with which he was charged in the indictment? Should the defendant, in such a case, after his conviction of the lesser crime, be discharged, or held in the custody of the sheriff to answer before another grand jury for the crime for which the jury, on his trial for murder, found he was guilty? Could not the defendant, if he was subsequently indicted for the lesser crime, plead that he had been placed in jeopardy for the same offense by his former trial upon the indictment for murder?

The question involved in this proceeding have never been decided in this state, and it is only in rare and exceptional cases that they are liable to be raised. There are, however, cases in this and other states where analogous principles have been either decided or discussed which have a direct bearing, more or less, upon the subject. The principles involved are not therefore, entirely new, novel, startling, or monstrous in their character. In State v. Robey the defendant was indicted for an assault with intent to murder, and was found guilty of "an assault with a deadly weapon, with intent to inflict bodily injury." The indictment charged that Robey, "without authority of law, and with malice aforethought, did shoot at William Newsom, with a shotgun loaded with leaden bullets, with intent to kill him." It was claimed that the indictment would not sustain the verdict because it did not charge an intent to do bodily injury. This court, after reviewing several authorities, said: "After a careful consideration of this appeal, we are of the opinion that the judgment is sustained alike by reason and authority. The defendant was fully informed by the indictment of the charge against him and of the means employed in committing it. He is accused of intent to murder by shooting. Murder by shooting cannot be effected without bodily injury. The offense of which he was convicted is therefore necessarily embraced in the one charged. By the indictment he is charged with the particular act of which he was convicted, but in a higher grade of crime." 8 Nev. 321, and authorities cited. In People v. Prague, similar in all respects to the Robey Case, recently decided by the supreme court of Michigan, the court said: "Where the offense embraces different degrees, and the highest degree is charged, it has been held that the person charged may be convicted of any of the lesser degrees. Thus, if charged with murder in the first degree, he may be convicted of murder in the second degree, or of manslaughter, or of assault and battery. The reasons are that the offense springs from the same transaction, and is supported by the same class of testimony." 40 N.W. 243. In State v. Smith the court declined to pass upon the question whether a defendant could, in any case, under an indictment for murder, be convicted of a simple assault, as it was not involved in the case. It was, however, said that the only theory upon which defendant could have been acquitted of the homicide and convicted of assault "is that the wound inflicted was not the cause, mediate or immediate, of the death, a theory which derives no countenance from the testimony." 10 Nev. 124. In Wilson v. State, where it was held that the defendant could not, under the charge of murder, be convicted of "cruel and unusual treatment of a slave," the court said: "If a case shall arise in which a party has made an unlawful, felonious assault on another, inflicting a wound, and death follows the wounding, but from the evidence the jury are unable to say that the wounding caused the death, yet, if the evidence shall clearly satisfy them that the assault was made with the intent of taking life, a case may be presented authorizing the courts to punish for the assault with the intent to commit murder upon an indictment charging the commission of the offense. The record, however, does not present such a case, and its discussion would be premature at this time." 29 Tex. 245. Bishop...