State v. Jackman

• Decision Date: 01 August 1907
• Docket Number: 1,710.
• Parties: STATE v. JACKMAN.
• Court: Nevada Supreme Court

91 P. 143

29 Nev. 403

STATE v. JACKMAN.

No. 1,710.

Supreme Court of Nevada

August 1, 1907

Appeal from District Court, Esmeralda County.

Albert T. Jackman, indicted under the name of John Thompson, was convicted of murder in the first degree, and from the judgment and an order denying his motion for a new trial he appeals. Reversed, and remanded for a new trial.

Thompson Morehouse & Thompson and Wm. Woodburn, for appellant.

R. C Stoddard, Atty. Gen., for the State.

SWEENEY J.

Defendant was indicted for killing John Moritz at Goldfield, Nev., on September 16, 1906, tried and convicted of murder in the first degree in the district court of the First judicial district of the state of Nevada in and for the county of Esmeralda, and sentenced by the court to be hanged by the neck until dead. From an order denying defendant's motion for a new trial, and from the final judgment convicting defendant of murder in the first degree, defendant appeals.

It appears from the testimony that the defendant, 21 years of age, a gambler by occupation, about 3 o'clock a. m. of the 16th day of September, 1906, was crossing the main street of Goldfield on his way to the Royal Café for breakfast, when he saw the deceased, John Moritz, aged 23, whose business appeared to be that of a messenger in the tenderloin district, coming down the sidewalk on a bicycle, when according to the defendant, "he rode almost to me jumped off his bicycle, and I would not say for sure whether he leaned his bicycle up against a post or the building. He walked down in front of me, headed me off. I asked him 'What do you mean, do you intend to make another gun play like you tried at the dance hall?' He answered: 'Yes (uttered an oath), and I am going through with it.' As he said that I stepped back, he threw his hand back to his hip like that (witness illustrating by throwing his left hand back to hip), and as he did so I shot him. *** I thought he was going to shoot me; that he was going to kill me if I gave him the chance. I would not have shot him otherwise, if I did not think he was going to shoot me. *** I shot once; that is, two shots were fired from the gun. One was my intention and purpose. The first I shot on purpose. After the first shot he staggered, and I cocked my gun, that is, to see if he was going to pull his gun to shoot or kill me. I stepped sideways toward the Mohawk, and as I did he fell. As he fell my finger was on the trigger and my thumb cocking the hammer. I had the trigger pulled back with my finger, and as he fell my thumb slipped off the hammer, and the gun exploded the second time. *** I did not fire the second shot intentionally." There were no witnesses to the commencement of the tragedy. It appears further from the testimony that the defendant about 1 o'clock of the same morning was in company with one Sherman Crumley, when Crumley was accidentally run into by deceased on a bicycle in an alley in the red light district of Goldfield, whereupon Crumley and Moritz had a wordy argument, culminating in the deceased, Moritz, drawing a revolver and ordering Crumley to "stand back." A revolver was found on the person of the deceased when brought to the hospital after the shooting. To the indictment charging defendant with murder in the first degree, defendant pleaded "not guilty," and interposed a plea of self-defense. During the progress of the trial, a prostitute by the name of Myrtle Smith was introduced as a witness on the part of the defense, and testified as follows: "By Mr. Morehouse: Q. Where do you reside? A. Goldfield. Q. Did you know in his lifetime a young man by the name of Moritz? A. Yes, sir. Q. Where did you know him? A. In Goldfield. Q. Did you see him on or about the morning of the 16th of September? A. Yes, sir. Q. Where? A. Down to my house. Q. What was he doing there? A. He brought me a lunch down to my house. Q. About what time was this? A. Some time between 2 and 3 o'clock; I could not exactly tell the time. Q. In the morning? A. In the morning. Q. On that occasion did he make any remark of and concerning Albert Jackman, known as Jack Thompson? A. Yes, sir. Q. Will you state to the jury what he said, and how he came to say it? A. Yes, sir. He brought a lunch from the Palm Restaurant to me. He went back and got one for Miss Florence and came back with Miss Florence's lunch and was to take my empty dishes. I heard him in my room, and stepped into the room, and he said: 'For Christ's sake, don't scare me.' I said to him: 'Why are you so frightened?' He said: 'Well, I had trouble down the street with Jack Thompson.' And made the remark: 'I am going to kill the son of a bitch the first time I see him."' The court gave the following instruction to the jury, asked for by the state, which is assigned as error by the defendant: "Threats, however deliberately made, do not justify an assault and battery, much less the taking of the life of the party making them, and evidence of threats previously made, if any threats were made, but not communicated to the defendant, should not be considered by the jury in arriving at their...