State v. Vaughan

• Decision Date: 20 March 1895
• Docket Number: 1,416.
• Parties: STATE v. VAUGHAN.
• Court: Nevada Supreme Court

39 P. 733

22 Nev. 285

STATE v. VAUGHAN.

No. 1,416.

Supreme Court of Nevada

March 20, 1895

Syllabus by the Court.

1. A challenge to a juror upon the ground of "implied bias" is insufficient. The particular ground of challenge must be specified.

2. The allowance of a challenge to a juror is not the subject of an exception.

3. Where the evidence shows that, at the time of making dying declarations, the deceased had no hopes of recovery from the wound he had received, the declarations are admissible. His condition of mind may be shown by statements made both before and after the declarations.

4. Where, upon state's motion, certain evidence was stricken out, but subsequently the motion was withdrawn, and the jury informed by the court that the evidence would stand as evidence in the case, any error in the former ruling is cured.

5. In a case involving the question of self-defense, where defendant claimed that deceased began the fatal affray, evidence tending to prove that at another time than the homicide deceased had attempted to shoot the brothers of defendant was stricken out. Held, no error.

6. Where, in such a case, the defendant had introduced testimony tending to prove that the deceased had a quarrelsome turbulent, and violent disposition, that he had once wantonly shot at defendant, and at the time of the homicide was making a murderous attack upon him, held, that this was such an attack upon the character of deceased as authorized the state to introduce evidence that the reputation of deceased for peace and quietness was good.

7. Upon the trial of the case, there was a question as to whether deceased was accidentally at the place where the homicide occurred, or had gone there for the purpose of preventing defendant from passing through a fence. The mother of defendant testified that the day before, in the presence of a young sister of deceased, she had stated that her sons would go to a certain mine the next day, which might have taken them past this place. There was no evidence that the girl had communicated this information to deceased, and upon this ground the testimony was stricken out. Held no error, as there was no presumption that it had been communicated, and, unless it had, it cut no figure in the case.

8. The jury were instructed that, to constitute malice aforethought it was only necessary that there should be a formed intention to kill; that malice aforethought means the intention to kill. Held error, as malice is an inference to be drawn from all the facts in the case, and is not established by mere proof of an intentional killing, for there may be an intentional killing in justifiable self-defense, or where the crime only amounts to manslaughter.

9. The father of deceased owned a ranch, through which a road ran across which he had placed gates. Defendant claimed this to be a public road, and, when passing through it, he refused to shut the gates. This led to difficulties and a feeling of hostility between defendant and deceased. The court instructed the jury that a person passing through gates in fences inclosing fields without again shutting them was guilty of a misdemeanor. Held, that this instruction was upon a point irrelevant to the case, and that it was prejudicial to defendant, in that its only effect was to show that the defendant had committed another crime in regard to the controversy between deceased and himself.

Appeal from district court, Lander country; A. L. Fitzgerald, Judge.

Alpheus Vaughan was convieted of murder, and appeals. Reversed.

J. H MacMillan and James F. Dennis, for appellant.

W. D. Jones, Atty. Gen., and D. S. Truman, Dist. Atty., for respondent.

BIGELOW C.J.

The defendant was convicted of murder in the first degree for the killing of William Litster, Jr. At the time of the homicide, the defendant was 21 years of age, and the deceased 16. For some time prior to the killing, there had been trouble between the family of defendant and the family of deceased. This seems to have been greater between defendant and deceased than between the other members of the families, and was principally concerning the right to free passage through a ranch owned and possessed by the father of deceased, situated in Boone Cañon, some four or five miles above the ranch owned by the father of defendant. The Litster ranch was inclosed with a wire fence, which crossed the road running up the cañon, gates being put in at the crossings. The Vaughans claimed this to be a public road, and sometimes, when passing along it, they left these gates open. On the morning of the day of the homicide, the defendant, his brother Charles, and a hired man started, with a team loaded with supplies, to go to a mining claim owned by them in the hills or mountains above the Litster place, which they intended working. They passed into the Litster ranch through the lower gate, and up through it, nearly to the upper side, where they turned off the main road for the purpose of taking a road up a side cañon known as "Water Cañon," which ran in the direction of the mine. A few rods from where they turned off they came to a division fence crossing the road, and through which it was necessary for them to pass. There was no gate in this fence, but there was a place where the wires had been previously taken apart by people passing through, though the gap was then closed. At this point they met the deceased and an elder brother, who objected to their passing through the fence. In the difficulty which ensued, both the Litsters were killed by the defendant with a Winchester rifle, the broader dying immediately, and William living but a few hours. As to this difficulty the testimony differs widely; that of the state tending to show a willful and unprovided murder by the defendant, and that upon the part of the defendant that the Listers were making a violent assault upon him, one with a pistol, and the other with an axe, and that, to save his own life, he was compelled to shoot them.

1. Several errors are assigned upon the court's ruling denying the defendant's challenges to trial jurors who were challenged on the ground of "implied bias." This is not such a challenge as the statute requires. The term "implied bias" covers nine different grounds of challenge. Section 340 of the act regulating criminal proceedings (Gen. St. § 4220). Gen. St. § 4222, provides that, "in a challenge for an implied bias, one or more of the causes stated in section 340 must be alleged." This was not done, and consequently the challenge was insufficient to raise any point for the consideration of this court. State v. Gray, 19 Nev. 212, 218, 8 P. 456; State v. Raymond, 11 Nev. 98, 106.

2. It is claimed that the evidence shows the juror Rapley to have been a qualified juror, and, consequently, that the court erred in excusing him upon a challenge by the state. But the right to reject does not include the right to select jurors. If the defendant was tried by an impartial jury, that is all he has the right to demand; he has no vested right to be tried by some particular juror. Besides, the action of the court in allowing challenges is not made the subject of an exception. State v. Larkin, 11 Nev. 314, 325; State v. Pritchard, 15 Nev. 74, 79.

3. The third point is that the dying declarations of the deceased were not admissible, for the reason that no sufficient foundation had been laid; that it did not appear that they were made under a prospect of "almost immediate dissolution." The evidence shows that the boy was shot about 11 o'clock in the forenoon; that he fell at the place where shot, or very near it, and lay there until carried to the house, where he died about 4 o'clock that afternoon; that he suffered greatly from the wound, and stated that "he was going to die, and he knew he was going to die right away"; that he refused to take medicine, saying there was no use to take it; there was nothing could do him any good. A physician had been sent for, but he said he would be dead before the doctor could see him, and, infact, did die before his arrival. This evidence was uncontradicated, and, if not sufficient foundation for the admission of the declarations, we are unable to see what would be. The fact that these statements that he expected to die were not all made prior to his first relation of the circumstances of the homicide is immaterial. The circumstances were told several times after they were made, and, in fact, the only figure these statements cut is to show that his relation of the circumstances was made under the expectation of impending death. They show that from the first he had no hopes of recovering, and that is sufficient.

4. The officer who arrested the defendant, testifying in the case, was asked what the defendant said at the time of the arrest, and replied: "Alpheus Vaughan said, 'I shot Willie Litster;' I think it was 'in self-defense."' The prosecution moved to strike out the later part of this answer, presumably the part starting that the shooting had been done in self-defense, and the motion was granted. Subsequently, however, on the same day, the prosecution asked to withdraw the motion, and that the whole answer be permitted to stand. The court thereupon informed the jury that the objection to the testimony had been withdrawn, and that the entire answer was before them as evidence in the case. We see no reason to doubt that this cured the error in the first ruling, and it is unnecessary to consider it further.

5. Charles Vaughan testified that about a year prior to the homicide, while he and another brother, Frank Vaughan, were working at the mine, the two Lister boys had shot at them twice, apparently either wantonly or for the purpose of driving them away. This evidence was, upon motion by the prosecution,...