State v. Buralli

• Decision Date: 16 February 1903
• Citation: 71 P. 532,27 Nev. 41
• Parties: STATE v. BURALLI.
• Court: Nevada Supreme Court

71 P. 532

27 Nev. 41

STATE v. BURALLI.

Supreme Court of Nevada

February 16, 1903

Syllabus by the Judge.

1. Under a statute creating Lyon county, where the words "Lyon county" are used in the title, preamble, and indorsement of an indictment, and in the charging part the defendant is accused by the grand jury of the "county of Lyon," and the offense is alleged to have been committed at the town of Dayton, in the "county of Lyon, " held sufficient.

2. A defective description of the grand jury in the body of the indictment may be cured by the title and preamble.

3. Courts will take judicial knowledge of the fact that a town fixed by statute as a county seat is located in the county.

4. If such an indictment were deficient at common law, it would be good under the wise and liberal provisions of our criminal practice act.

5. If the trial court is in doubt as to the qualification of a juror, it is not error to excuse him; and it is better to do so, to the end that a fair and free jury may be obtained, and the risk, trouble, and expense of a new trial avoided.

6. If conceded that a question was improper, to which an objection was overruled, the error is presumed to be harmless, unless the answer by physical illustration is shown by the record to have been detrimental to the party making the objection.

7. A surgeon who has held an autopsy may give his opinion regarding the course of the bullet, and incidentally as to the relative position of the parties at the time the fatal shot was fired.

8. Instructions (a) may be refused when the legal propositions they contain are substantially embodied in the charge given by the court. (b) Must not assume facts not admitted. (c) Should not be argumentative. (d) The court having charged the jury to carefully consider all the facts, circumstances and evidence, the refusal of instructions singling out, and laying stress upon, particular points in the testimony, was not error.

9. The jury are the judges of the testimony, and the verdict will not be disturbed if there is any substantial evidence to support it.

Appeal from district court, Lyon county; C. E. Mack, Judge.

Adamo Buralli was convicted of murder in the first degree, and appeals. Affirmed.

F. M Huffaker, for appellant.

James G. Sweeney, Atty. Gen., John Lothrop, Dist. Atty., and James D. Torreyson, for the State.

TALBOT J.

The defendant was tried, convicted of murder in the first degree and sentenced to be hanged, under the following indictment:

"In the District Court of the First Judicial District of the State of Nevada, Lyon County. United States of America. State of Nevada, County of Lyon. The State of Nevada Plaintiff, against Adamo Buralli, Defendant. At a term of said district court held at the courthouse in the town of Dayton, Lyon county, state of Nevada, on the thirteenth day of November, A. D. one thousand nine hundred and two, and continuing in session at the time of finding this indictment. Present, the Honorable C. E. Mack, District Judge. Adamo Buralli is accused by the grand jury of the county of Lyon, state of Nevada, by this indictment, of the crime of murder, committed as follows, to wit: That the said Adamo Buralli on or about the third day of November, A. D. one thousand nine hundred and two, and before the finding of this indictment, at the town of Dayton, in the county of Lyon, state of Nevada, without authority of law, and with malice aforethought, he, the said Adamo Buralli, being then and there armed with a deadly weapon, to wit, a pistol loaded with powder and leaden bullets, did then and there, without authority of law, and with malice aforethought, kill one Angelo Zari, a human being, by shooting him, the said Angelo Zari, with said pistol, contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of Nevada. John Lothrop, District Attorney in and for Lyon County, State of Nevada."

Indorsed:

"In the District Court of the First Judicial District of the State of Nevada, Lyon County. The State of Nevada, Plaintiff, against Adamo Buralli, Defendant. Indictment for Murder. A true bill. G. B. Waldo, Foreman of the Grand Jury. John Lothrop, District Attorney, Lyon County, Nevada.

Presented by the foreman of the grand jury, in its presence, in open court, and filed therein, this 13th day of November, A. D. 1902. D. W. Melarkey, Clerk of Said Court."

Upon the arraignment the accused demurred and moved to set aside the indictment on the ground that it laid no venue, and charged no offense within any county known to the laws of this state. The action of the court in overruling these objections is alleged as error, and on this appeal it is further contended that the indictment is not shown to have been found by the grand jury of any county created by our statutes. If not too late, under State v. Roderigas, 7 Nev. 328, and State v. Harris, 12 Nev. 419, to raise this point after demurrer and trial, we do not consider it as well taken, for reasons hereafter stated in regard to the venue, and because, as held in a number of decisions, proper caption, title, or preamble may aid a defective description of the grand jury in the charging part of the indictment. Commonwealth v. Edwards, 4 Gray, 1, Jeffries v. Commonwealth, 12 Allen, 145; Commonwealth v. Fisher, 7 Gray, 492; Sargent v. State (Tex. Cr. App.) 33 S.W. 364; Helt v. State, 52 Ark. 281, 12 S.W. 566. A grand jury in regular organization and attendance upon a court is necessarily one within and for the county where the court is in session, and, where the county and court have been properly described in the title, indictments have been sustained without the name of the county being stated in describing the grand jury in the body of the instrument. State v. Kiger, 4 Ind. 621; State v. Brady, 14 Vt. 355; Morgan v. State, 19 Ala. 556; Leonardo v. Territory, 1 N. M. 293; Stevens v. State, 76 Ga. 97. In the last case an indictment headed "Georgia, Liberty County," was held to show that the grand jurors were drawn and sworn in that county. In Missouri, where the caption was omitted, it was held sufficient if it appeared from the record that the indictment was properly preferred by a lawful grand jury to a court having jurisdiction over the matter. State v. Blakely, 83 Mo. 360; State v. Freeman, 21 Mo. 481; State v. Daniels, 66 Mo. 192.

The contention here is that the act of November 25, 1861, states that "there shall be a county, to be known as Lyon county," and that it is fatal to describe it in the indictment as the "county of Lyon," when it is not so designated in the statute. In the title, commencement, and indorsement, "Lyon county" is named, and the indictment is shown to have been presented by a grand jury in the district court of that county. The defendant and any person of ordinary understanding ought to know what is intended by either of these designations, and that the purpose of the allegation was to place the venue and grand jury in that county, and no other. Lawyers, in drawing deeds, affidavits, or any paper in a civil or criminal case, would be likely to name the county in either of these ways. Section 5, art. 6, of our state constitution, which temporarily divided the state into districts, provided that the "county of Lyon" should constitute the third; and the act of the legislature (St. 1861, p. 291, § 14) fixing the county seat at Dayton named it in the same manner; and, if these objections are well taken, by analogy there is legally no county seat. A verdict entitled in the proper court and case, as this indictment is, would be sufficient if it stated that "we, the jury, find the defendant guilty"; and it would be presumed, or in case of attack could be shown by the minutes and records of the court, that they had been properly drawn, selected, and sworn in the action specified in the title.

The objection is technical, at best, and the substantial rights of the defendant are not affected. In describing the place or jurisdiction, no necessity appears for the same accuracy that some decisions require in naming a private corporation as a party plaintiff or defendant. In Woodsides v. State, 2 How. 656, it was urged that it was not shown where the indictment was found, nor where the jury was impaneled. The court held that these particulars were set out with sufficient certainty, and sustained the indictment, because it recited: "The State of Mississippi, Wilkinson County--ss. The Circuit Court of Wilkinson County. The grand jurors of the state of Mississippi, impaneled and sworn, in and for the county of Wilkerson and state of Mississippi." If the county were improperly described or omitted, the allegation that the defendant killed the deceased at the town of Dayton, in the state of Nevada, would fix the venue. Courts take judicial knowledge of the division of the state into counties, and of the location of important towns therein, designated by statute, as this is, for the county seat. State v. Laffer, 36 Iowa, 422; Long v. State, 1 Tex. App. 422; Lewis v. State (Tex. Cr. App.) 24 S.W. 903; Overton v. State, 60 Ala. 73; People v. Etting, 99 Cal. 577, 34 P. 237; State v. Powers, 25 Conn. 48; Huston v. People, 53 Ill.App. 501; State v. Reader, 60 Iowa, 527, 15 N.W. 423; People v. Telford, 56 Mich.

541, 23 N.W. 213; State v. Pennington, 124 Mo. 388, 27 S.W. 1106; People v. Curley, 99 Mich. 238, 58 N.W. 68; Martin v. Martin, 51 Me. 366; Commonwealth v. Desmond, 103 Mass. 445; Steinmetz v. Turnpike Co., 57 Ind. 457; 1 Greenleaf, Ev. sec. 6.

In naming the grand jury as of the county of Lyon, this indictment follows the form prescribed by our criminal practice act. It is also provided in the Compiled Laws:

"Sec. 4199. The

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