State v. Lindsey

• Decision Date: 13 February 1885
• Citation: 5 P. 822,19 Nev. 47
• Parties: STATE v. LINDSEY.
• Court: Nevada Supreme Court

5 P. 822

19 Nev. 47

STATE v. LINDSEY.

Supreme Court of Nevada

February 13, 1885

Appeal from the Second judicial district court, Ormsby county.

R. M Clarke, for appellant.

W. H Davenport, Atty. Gen., and J. D. Torreyson, Dist. Atty., for respondent.

HAWLEY J.

Appellant was indicted for the crime of murder, alleged to have been committed by the administering of poison. The jury found her guilty of murder in the second degree.

1. It is argued in her behalf that the verdict is a verdict of acquittal; that the crime alleged in the indictment was murder in the first degree; that there is no such crime under our statute, as murder in the second degree for a homicide committed by means of poison. The statute of this state declares that "all murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree; but if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly." 1 Comp. Laws, 2323.

Under this statute there are certain kinds of murder which carry with them conclusive evidence of premeditation, viz., when the killing is perpetrated by means of poison, lying in wait, or torture; or when the homicide is committed in the perpetration, or attempt to perpetrate, any of the felonies enumerated in the statute. In these cases the question whether the killing was willful, deliberate, and premeditated is answered by the statute in the affirmative, and if the prisoner is guilty of the offense charged, it is murder in the first degree. State v. Hymer, 15 Nev. 50, and authorities cited in appellant's brief. But suppose the jury, in charity for the faults and weakness of the human race, sympathy for the prisoner, or any other mistaken view of the law or the facts, lessens the offense to murder in the second degree, is the prisoner to go free? Does not the case stand precisely upon the same plane as a verdict of murder in the second degree in any case not enumerated in the statute, where there is a willful, deliberate, and premeditated killing? Is it not as much the duty of the jury in such a case to find the prisoner guilty of murder in the first degree, as in the cases specially enumerated in the statute? Suppose the jury in such a case, where the evidence is positive, clear, plain, and satisfactory beyond a reasonable doubt, regardless of all the testimony, and in violation of the well-settled principles of law, should find the prisoner guilty of murder in the second degree; would the prisoner be entitled to a new trial upon the ground that the verdict is against the evidence? Is it not a fact that juries frequently render just such verdicts, and that the result cannot be accounted for upon any theory other than that of a compromise of opinion? Why should such a verdict be allowed to stand? The answer is plain. The reason is that the statute leaves the question of degree to be settled by the verdict of the jury. A verdict finding the prisoner guilty of murder, without mentioning the degree, would be a nullity.

In State v. Rover, this court, referring to the statute which we have quoted, said:

"By this statute, murder is divided into first and second degrees, depending upon the particular circumstances in which the crime is committed; and whether it be of the first or second degree, is a fact to be specially found from the evidence adduced, without reference to any special facts which may be stated in the indictment. In case of a trial, the jury before whom the trial is had, if they find the defendant guilty, are required to find this fact, and to designate by their verdict whether the guilt be of the first or second degree; and in case of a plea of confession, the court is required to determine this question of fact by the examination of witnesses in open court. It is therefore apparent, from the plain and positive provisions of the statute, that a verdict which fails to designate the degree of murder of which the jury find the defendant guilty, is so fatally defective that no judgment or sentence can be legally pronounced thereon." 10 Nev. 391.

A judge should always inform the...