State v. McNeil

• Decision Date: 14 November 1931
• Docket Number: 2922.
• Citation: 4 P.2d 889,53 Nev. 428
• Parties: STATE v. McNEIL.
• Court: Nevada Supreme Court

4 P.2d 889

53 Nev. 428

STATE v. McNEIL.

No. 2922.

Supreme Court of Nevada

November 14, 1931

Appeal from District Court, Nye County; Frank T. Dunn, Judge.

Wallace McNeil was convicted of second degree murder, and he appeals.

Affirmed.

W. R Gibson and Harry C. Price, both of Tonopah, and A. Grant Miller, of Reno, for appellant.

M. A Diskin, Atty. Gen., W. J. Forman, Deputy Atty. Gen., and Walter Rowson, Acting Dist. Atty., of Tonopah, for the State.

THOMAS F. MORAN, District Judge.

The various assignments of error relied upon by the appellant will appear as we take them up in our discussion of the case.

One of the points that has been well briefed and earnestly argued in this court by appellant is assignment No. 3; that is to say the alleged error of the trial court in refusing to give defendant's proposed instruction F to the jury. The instruction in question reads as follows: "You are instructed that if the person accused use a weapon designed to be deadly and use it in such a manner in which such weapon is ordinarily used to kill, then the law will presume an intention to kill, but if such weapon was not used in the manner designed, that is to say for shooting, then such presumption is not a presumption of law, but leaves the intent as a question of fact for the jury; and to strike one with the barrel of a pistol instead of shooting him with the weapon, not being the ordinary way of using the weapon for killing, the intention to kill will be a question of fact unassisted by any presumption, and, taken in connection with the other testimony, the presumption may be against an intention to produce death, for having the means of killing the actor has chosen to avoid that end."

It may be that in certain jurisdictions some parts of this instruction could properly be given, possibly in a case in which the evidence indicated a striking with a loaded gun upon some nonvital part of the body. But we cannot see how it could have been given under the statutes of this state, the decisions of this court, or the evidence in the present case.

It is provided in section 9956 of Nevada Compiled Laws 1929, that intention in criminal cases is manifested by the circumstances connected with the perpetration of the offense and the sound mind and discretion of the person accused. In the case of State v. Davis, 14 Nev. 410, this court held, in harmony with the statute, that it is the character of the weapon and the manner in which it is used, not the purpose for which it is carried, taken in connection with the facts and circumstances of the assault, that indicates the intention of the party. Thus the whole question of intent to kill, including the query as to the deadliness of the weapon, must be left to the jury, under the particular facts and circumstances of each case, subject, of course, to the usual instruction of the court, giving a legal definition of a deadly weapon. State v. Rigg, 10 Nev. 290; Acers v. U. S., 164 U.S. 388, 17 S.Ct. 91, 41 L.Ed. 481; People v. Lopez, 135 Cal. 23, 66 P. 965, 966; State v. Archbell, 139 N.C. 537, 51 S.E. 801; State v. Napper, 6 Nev. 113; State v. Buralli, 27 Nev. 41, 71 P. 532.

The case of Delk v. State, 135 Ga. 312, 69 S.E. 541, Ann. Cas. 1912A, 105, cited by appellant as authority for the requested instruction, is not in conflict with the opinions of this court. The decision does not contain a statement of the facts in the case, but merely holds that, under certain conditions, if a given weapon is not used in the ordinary manner in which such a weapon produces death, then the intent to kill is not a presumption of law, but purely a question of fact under the evidence.

In State v. Collyer, 17 Nev. 275, 30 P. 891, Chief Justice Hawley properly held that: "When there is any doubt as to whether the instrument used in committing the assault was a deadly weapon, it is a question for the court and jury to decide," which cannot have any other meaning than that the question is one of fact for the jury to determine under proper instructions, as to the statutory definition of intention, and as to what is legally considered a deadly weapon.

We believe this attitude is eminently sound, for we can easily conceive of many circumstances in which a given weapon could be equally deadly in many ways, regardless of the purpose for which it is mainly intended to be used. For example: A and B are out hunting; A is carrying a loaded rifle; an argument ensues between them; A becomes angry, and strikes B violently on the top of the head with the rifle, and breaks his skull, killing him instantly. Can it be logically contended that A would be entitled to such an instruction as the one offered in the present case, giving him a presumption of mitigation of the offense, merely because he did not choose to shoot with the weapon? If we remember that every person is presumed to intend the natural consequences of his acts, we must answer the question with an emphatic negative. Yet the hypothetical case that we have just propounded is infinitely stronger in favor of the instruction than is the case at bar. We have postulated that A was carrying a loaded rifle, while in the present case there is no evidence whatever in the record upon which to base an assumption that the pistol wielded by the appellant was loaded. It was properly held in State v. Napper, supra, that no presumption exists that any given gun is loaded. Thus, aside from its other inherent defects, the instruction in question is predicated upon something not in evidence, and rests upon a presumption not recognized by the law of this state.

Under the evidence in this case, the jury evidently found that the weapon as wielded by the defendant was deadly, and that there was an intent to kill. We are not inclined to dispute the deductions of the jury. Although the weapon itself is not in evidence, the record shows that it was a 44 or 45 caliber pistol, and that the defendant struck the deceased with it repeatedly on the face or head with such violence that the victim fell to the ground. The defendant himself admitted that he struck the deceased twice on the face with the gun before the victim fell. Other witnesses testified that the defendant continued to strike the deceased after the latter had fallen.

In view of the foregoing considerations, we must conclude, not only that the requested instruction was properly refused, but also that the giving of it would have been erroneous.

We have given particular attention to assignment No. 13, as to the alleged misconduct of the district attorney, which we are urged to consider of such a reprehensible nature as to deprive the defendant of a fair and impartial trial. While we are not indorsing in this opinion everything that was said or done by the district attorney at the trial of this action, we cannot agree with appellant that the officer's conduct was so extreme as to be prejudicial to the defendant, or to warrant a reversal of this case. But, even if the conduct complained of was of the most serious consequence, the appellant could not here, for the first time, be heard to complain. The record does not disclose that any objection was interposed, or exception taken, to the alleged misquotations, misstatements, or other misconduct of the district attorney during the trial. Neither did counsel for appellant, at the time of the conduct complained of, request the court to admonish the prosecuting officer, or to caution the jury to disregard his unfair conduct. Only after refusal by the trial court to grant such a request of appellant could the appellant urge this court to consider any assignments of error of this nature. State v. Hunter, 48 Nev. 358-367, 232 P. 778, 235 P. 645; State v. Boyle, 49 Nev. 402, 248 P. 48; 16 C.J. 915.

The appellant further complains of the district attorney, in that the officer failed to summon all the witnesses who were present at the time and place of the offense, and especially one Inman who visited the district attorney some time before the trial, and who was told by him that he was not needed as a witness. It is true that under the old English rule there was a duty on the part of the prosecuting officer to call as witnesses all persons present at the time of a transaction charged as a crime. But this ancient doctrine has undergone considerable modification in England during modern times, while a great number of American courts, including our own, have consistently looked upon it with disapproval. In the case of State v. Milosovich, 42 Nev. 274, 175 P. 139, it was contended by the defendant in that case that the district attorney was guilty of conduct during the trial, necessitating the granting of a new trial, in that he had failed to call one Daisy Reeves, who was present during most of the time when the events leading up to the homicide took place. A number of authorities were cited in that case to sustain the defendant's theory. But this court, in passing on the question, said very positively: "It is not obligatory upon a district attorney to call all of the eyewitnesses to a transaction charged to be a crime." See, also, State v. Barrett, 33 Or. 194, 54 P. 807; Ross v. State, 8 Wyo. 351, 57 P. 924, 929.

It has been argued by appellant that certain portions of the opening statement of the district attorney were prejudicial to the defendant, in that the prosecuting officer promised to prove premeditation by representing the defendant as having waited at the Mizpah Hotel, shortly before the trouble, for Capt Gordon to appear. But this objection becomes very trivial, in view of the fact that there is some testimony in the record that justifies the statement. But, even if the statement had totally failed of proof, we cannot understand in what manner ...