State v. Gray

• Decision Date: 04 November 1885
• Parties: STATE v. GRAY.
• Court: Nevada Supreme Court

8 P. 456

19 Nev. 212

STATE v. GRAY.

Supreme Court of Nevada

November 4, 1885

Appeal from a judgment of the Fourth judicial district court Humboldt county, upon a verdict convicting the defendant of murder. The opinion states the facts.

J. H MacMillan and J. A. Hannah, for appellant.

W. H Davenport, Atty. Gen., S. J. Bonnifield, Dist. Atty., M. S. Bonnifield, and H. F. Bartine, for respondent.

BELKNAP C.J.

Defendant appeals from a judgment of conviction of murder of the first degree upon numerous exceptions.

1. Defendant applied for a change of venue on the ground of prejudice existing against him in the county where the indictment was pending which would prevent him from having a fair and impartial trial. The application was based upon affidavits tending to establish the fact alleged, and resisted by counter-affidavits. It is unnecessary to consider the contents of the affidavits. The district court overruled the motion for the time being, until it could be shown by an examination of a sufficient number of jurors that a fair and impartial jury could not be obtained. After examining 81 persons a jury was impaneled. The statute authorizing a change of venue in criminal cases provides that before granting the order, the court shall be satisfied that the representations of the moving party are true. The question whether a fair and impartial jury could be obtained depended largely upon the opinions of witnesses. Opinions differed widely, and the court adopted a very satisfactory test to ascertain the fact. The practice pursued was approved in State v. Millain, 3 Nev. 433, and by the supreme court of California in People v. Plummer, 9 Cal. 299, and in People v. Mahoney, 18 Cal. 181. In this connection it is said that defendant was entitled, not only to an impartial jury, but to an impartial trial; and it is contended that the possibility of an impartial trial was precluded by the existence of a prejudice which pervaded the community. An affidavit against the motion denies the existence of such a feeling of hostility as would prevent an impartial trial of the cause, and no fact has been presented tending to show prejudice in this respect to the defendant upon the occasion of the trial.

2. Defendant moved the court for a continuance of the trial of the cause, upon the ground of the absence of witnesses, and in support thereof relied upon his affidavit setting forth that on the twenty-third day of February, 1885, subpoenas were issued commanding Joshua Winthrop, W. J. Thompson, and John Doe (foreman of Reconzorie sheep ranch) to be present as witnesses at the trial, to take place on the seventeenth day of March succeeding, to testify in his behalf; that the sheriff of the county, as appeared by his return, had been unable to find any of these persons. But it is nowhere suggested that the sheriff was not diligent in endeavoring to serve the process which had been placed in his hands. The affidavit fails to state whether the officer was informed of the place of residence of any of them,--save that they had told affiant that they lived in Humboldt county,--or where they could be found, or where any information concerning their whereabouts could be obtained. Nor were any facts shown on which the court could predicate a belief that their attendance could be procured at any subsequent term of the court. The order of the district court denying the motion for a continuance was correct in respect to the absence of the persons named because of these defects.

Another witness named Charles Barnard had been subpoenaed, but was not present at the trial. The district attorney stated in open court that Barnard was at Lewis, in Lander county, and thereupon the court stated "that if defendant desired, an attachment would issue for Barnard. Defendant did not at any time apply for such attachment, but declined to proceed until attendance of witnesses was assured." Under these circumstances defendant cannot now complain of the absence of this witness. People v. Weaver, 47 Cal. 106.

3. A challenge in writing was interposed in behalf of defendant to a panel of additional jurors summoned upon an open venire directed to the sheriff, upon the ground of "a material departure from the form prescribed by the statute in respect to the drawing and return of said jury." The challenge specifies the particular grounds upon which it is rested, none of which are now urged except this: "that the deputy-sheriff who summoned forty of said jurors is biased against the defendant." The statute authorizes a challenge to the panel founded on a material departure from the forms prescribed by the statute in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn, (section 1947;) and also upon bias of the officer summoning jurors upon an open venire. Section 1954. The challenge was imperfectly taken. The separate causes of challenge should have been separately taken, and the challenge should have shown upon its face whether it was taken for implied or actual bias. If for implied bias, it was the duty of the court to decide upon the objection; if for actual bias, triers should have been appointed by the court for that purpose. Section 1968. The challenge was overruled, and it is now urged that the question of bias should have been determined by triers and not by the court. The exception was not placed upon that ground in the district court. Regarding the challenge as one for actual bias, it was competent for the court, by consent of the parties, to act as trier. Defendant not only failed to ask for the appointment of triers, but submitted evidence in support of the challenge to the court. This operated as a waiver of an examination by triers. It was decided in People v. Mather, 4 Wend. 230, that "when the facts on which a challenge rests are disputed, the proper course is to submit the question to triers; but if neither of the parties ask for triers to settle the issue of fact, and submit their evidence to the judge, and take his determination thereon, they cannot afterwards object to his competence to decide that issue. The production of evidence to the judge without asking for triers will be considered as the substitution of him in place of triers; and his decision will be treated in like manner as would the decision of triers." Com. v. Gross, 1 Ashm. 286; People v. Rathbun, 21 Wend. 542; Stout v. People, 4 Parker, Crim. R. 134; O'Brien v. People, 36 N.Y. 279; Schoeffler v. State, 3 Wis. 717; Barb. Crim. Law, 355. The decision of the triers, and in this case by the court as trier, is final, and not the subject of exception, and cannot be reviewed upon appeal. Section 2046, Comp. Laws; People v. Cotta, 49 Cal. 166; People v. Vasquez, Id. 560; People v. Taing, 53 Cal. 602. If the challenge be considered as made for implied bias, it was properly overruled, because it does not set forth any ground upon which a challenge for implied bias may be made. Section 1964, Comp. Laws. The record fails to show that the challenge was denied. This omission cannot be construed as a confession of the challenge. An appellant must affirmatively show error.

4. Upon the trial of the cause defendant testified--

"That on the night of the homicide, between eight and nine o'clock in the evening, he entered the store building of Scott & Powell (where said homicide was committed) with the intention of committing robbery by intimidation; that he carried a shotgun with both barrels loaded with bird-shot, but uncocked; that he had barley sacks upon his feet and a barley sack pulled over his head loose, without being fastened, with small holes cut in front through which to look; that he requested deceased to keep still, but that when he saw the movements of Scott he abandoned all intention of committing any robbery or other felony, and was endeavoring in good faith to leave the premises without committing any felony whatever; that in so doing the barley sack on one of his feet caught on something at the end of the counter; the mask became displaced so that he could not see; the gun was jerked from defendant, and, in being so pulled away from defendant, was discharged accidentally, and, without any voluntary act of defendant, deceased was thereby killed, and defendant fled; that immediately before the gun was seized by deceased, defendant cried out, 'Hold on, and I will go.' ***"

The court refused to instruct the jury upon the theory of an abandonment by defendant of his felonious attempt, and its ruling in this respect is assigned as error. The doctrine of abandonment of an attempt is thus stated in Whart. Crim. Law, § 187:

"If an attempt be voluntarily and freely abandoned before the act is put in process of final execution, there being no outside cause prompting such abandonment, then this is a defense. But it is otherwise

...