State v. Williams

• Decision Date: 19 September 1905
• Docket Number: 1,677.
• Citation: 82 P. 353,28 Nev. 395
• Parties: STATE v. WILLIAMS.
• Court: Nevada Supreme Court

82 P. 353

28 Nev. 395

STATE v. WILLIAMS.

No. 1,677.

Supreme Court of Nevada

September 19, 1905

Appeal from District Court, Washoe County.

Frank Williams was convicted of murder in the first degree, and he appeals. Affirmed.

D. H Hartson and P. N. Packard, for appellant.

James G. Sweeney, Atty. Gen., for the State.

TALBOT J.

Jointly with three others, Fred Roberts, J. P. Sevener, and T. F Gorman, this defendant was convicted of murder in the first degree in Humboldt county, and on a former appeal with them was granted a new trial by this court. 77 P. 598. Later, and after the case against all of them had been transferred to Washoe county, Williams was given a separate trial, which again resulted in this conviction and sentence of death. He appeals from the judgment and order denying a new trial. The facts are stated in the opinion which we have rendered against the other three. 82 P. 100.

It is said that the evidence is insufficient to justify the verdict of murder in the first degree because the shooting was not done until about two minutes after the robbery. It occurred as part of a continuous assault, lasting from the robbery to the shooting, and apparently was done for the purpose of preventing detection. The court properly instructed the jury that under the statute all murder committed in the perpetration of robbery is of the first degree. If there had been no robbery, there was sufficient time for premeditation to justify the verdict. State v. Gray, 19 Nev. 218 8 P. 456; State v. Lopez, 15 Nev. 407; State v Millain, 3 Nev. 409; State v. Ah Mook, 12 Nev. 369.

It is claimed that one of the jurors, A. C. Helmold, was incompetent by reason of having formed and expressed an unqualified opinion in regard to the guilt or innocence of the accused. He stated on his voir dire that he had heard the case discussed and what purported to be the facts, that he had not discussed it himself and had not talked with the witnesses regarding it, that from rumor and reading the newspapers he had formed an opinion regarding the guilt or innocence of the defendant, that his opinion was not unqualified, and that it would require evidence to change it. After he had been challenged by the defendant, the court gave him the following examination: "Q. Mr. Helmold, from what source did you get your information? A. Why, through the papers and through hearing talk generally. Q. Do I understand you to say you have not discussed the case yourself? A. I have not; no, sir. Q. And do I understand that the opinion you have formed is not a fixed, settled, positive opinion? A. It is not. Q. Has any one purported or attempted to detail to you what evidence was in this case? A. No, sir. Q. Have you ever heard any of the witnesses talk on the case that you know of? A. No, sir. Q. Have you any firm, fixed opinion as to whether what you heard or what you read was the truth or not? A. Well, I could not say that, judge. I listened in a hearsay kind of a way.

I could not express an opinion of a man innocent or guilty unless I heard evidence. Q. Until you had heard the evidence? A. No. Q. Well, now the opinion that you have got, as I understand it, depends entirely upon the truth or falsity of what you have heard? A. Exactly. Q. Well, now, supposing that there were no facts detailed upon the trial of this case such as you had heard on the outside; what effect would what you have heard on the outside have upon your mind in determining this case? A. It would not have very much. Q. Would it have any? A. It would have some until I heard the evidence. Q. Then do I understand that you could not divest yourself of any opinion that you might have and decide this case upon the evidence as it was produced here? A. I could. Q . You could. And would you do so? A. I would. Q. Well, now, supposing it would make no difference as to what you had heard, or supposing upon the trial of this case the state did not prove to your satisfaction beyond a reasonable doubt by the evidence adduced here upon the stand, that this man was guilty of any offense included in or charged in the indictment; what would you do then in a case of that kind? A. I would give the defendant the benefit of the doubt. Q. If they had not proved it beyond a reasonable doubt, you would acquit him? A. Beyond a reasonable doubt, I would. Q. You would acquit him? A. Yes, sir. Q. You understand, Mr. Helmold, in law, that an acquittal may simply amount to this: that the state has not proven the defendant guilty beyond a reasonable doubt? A. I understand that. Q. Now, if you were chosen as a juror in this case, could you divest your mind of all opinion that you have in the case, and hear evidence and determine it solely upon that and the law as given to you by the court? A. Certainly. Q. Is your mind made up that this man is either innocent or guilty? A. Well, I could not say as it is made up, but I have an opinion from what I have heard talked of. Q. Well, are you prepared to say that this man is either guilty or innocent? A. I am not. Q. Did the persons who talked about this case pretend to have been listeners to the evidence, or know what the evidence was in the case? A. Well, I could not say that. Q. You do not know whether they did or not? A. No. Q. Is your opinion based upon what would be termed street rumor or street talk? A. That is it. The Court: Challenge is denied."

The condition of the juror's mind should be determined from the whole of his examination, and doubts should be resolved in favor of the accused, as in other matters, to the end that he may be tried by 12 fair and unbiased men. State v. Buralli, 27 Nev. --, 71 P. 532. Considering all the juror said, it is apparent that from reading the papers and talking with others, who are not shown to have had any direct knowledge of the facts or any information acquired from sources other than newspapers, he had formed an opinion regarding defendant's guilt or innocence such as any one might have acquired who read the news usually published regarding such crimes. In this era of education, intelligence, and diffusion of knowledge, when the telegraph and cable flash information from the most distant parts of the earth in a few seconds, when an army of men are employed in gathering and reporting the important happenings of the world, and improved printing presses, invented and operated by ingenious minds and cunning hands, are publishing millions of papers daily, the man who does not read and think and form opinions regarding such crimes as murders committed in his locality is better fitted to have lived in the Dark Ages than to serve on juries in the twentieth century. Still, in order to be a good juror, any opinion he may have must be a qualified one, and he must conscientiously feel that he can discard it in arriving at a verdict, and realize that under our system of jurisprudence persons charged with crime are not to be prejudged or convicted upon newspaper reports or hearsay, or found guilty by anything excepting evidence introduced in court under the sanctity of an oath or in conformity to legal practice. Every one, however humble or great, accused of crime, is entitled to be tried by jurors whose minds will be guided by such evidence only in arriving at their verdict. It is apparent that this juror was not disqualified under this test, that the opinion he possessed was only such an one as any disinterested, intelligent citizen who reads and thinks might form, and, although that opinion would naturally remain in his mind until something occurred to remove it, it appears to have been qualified by a doubt as to the truth or falsity of the information on which it was based, and that it was not a settled conviction regarding the defendant's guilt which would weigh with him in considering the testimony or swerve or influence his mind in arriving at a verdict. The case in regard to this juror is not, as contended in the brief, similar to that relating to the one the denial of whose challenge on the first trial was cause for reversal. The record indicated there that, after talking with persons who purported to know the facts, he had expressed an unqualified opinion, which, under the statute, rendered him incompetent. Here it merely appears that the juror had formed a qualified opinion based largely on newspaper reports, which the criminal practice act provides shall not disqualify, and that, regardless of the source of his information, his mind was not in a condition that rendered him incompetent to serve.

Exception was taken to the admission of the dying declarations of the deceased, Jack Welsh. The evidence showing their admissibility appears to have been quite as strong as that on the trial of the three defendants indicted with this one, and for the reasons stated in the opinion in their case the declarations were properly admitted against Williams.

The written dying statement was in narrative form, and it is further objected here that the questions were not included in the writing. It is sufficient to say that they were proven verbally on the trial, and the written declaration was complete without them.

In his opening statement to the jury, the attorney acting for the prosecution said: "Now, there may be, and probably will be, another feature of this case introduced on the part of thestate, and it will be evidence to show that this defendant was duly convicted in Humbolt county, in conjunction with Sevener and Roberts and Gorman, of murder in the first degree, and sentenced to be hanged for that crime; that while they were confined in the Carson penitentiary, awaiting the execution of that sentence, that this defendant, without solicitation, without promise of reward, without any conditions whatever attached thereto, made a written statement; that...