mission of defendant's statements that he purchased the stolen jewelry in certain cities. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 862, 936; Dec. Dig. 414.] 4. CRIMINAL LAW 824 · INSTRUCTIONS REQUEST-FALSE TESTIMONY. Failure to instruct on the maxim, "Falsus in uno, falsus in omnibus," was not error, where accused made no request for such instructions. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. 824.] cribing the record. No proof appears that this is the case, and no request has been made for diminution of the record; hence the suggestion of counsel for appellant cannot be considered. The objection which counsel for appellant asserts was, in fact, made, even if embodied in the record, would not justify this court in holding the same to be substantial error. Assuming that the same objection was made to the testimony of the chief of police as that made to the testimony of the two other officers, the error, if any, amounts simply to the sustaining of an objection to questions propounded to the witnesses whether any inducements, threats or offers of reward were made to procure the statements or confession. Even assuming that the court may have committed technical error in permitting the witnesses to testify to conclusions, it also appears that the whole conversation between the defendant and the officers was de [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1895-1901, 1960, 1984; tailed, and from all of the facts and circumDec. Dig.786.] stances there was no room for serious question that the statements and confession were Appeal from District Court, Washoe Coun- made otherwise than freely and voluntarily. ty; Thomas F. Moran, Judge. Besides, it was not necessary to lay any Frank Blaha was convicted of burglary of foundation for the admission of the statethe first degree and appeals. Affirmed. W. H. Virden, of Reno, for appellant. Geo. B. Thatcher, Atty. Gen., and H. C. Price, Deputy Atty. Gen., for the State. ments made by the defendant as to how he came into possession of the jewelry in ques tion. "Self-serving statements made by or for the accused out of court, explaining suspicious circumstances, may be proved against him, and their falsity admits them as indicating an attheir falsity may then be shown. The fact of tempt to explain away incriminating circumstances by falsehoods." 12 Cyc. 429. NORCROSS, C. J. [1-3] Appellant was convicted of the crime of burglary of the first degree, and appeals. Evidence was introduced establishing the fact that a burglary Error is assigned in the refusal to give was committed on the night of the 25th day certain instructions requested by defendant. of July, 1915, in the city of Reno, and cerWith the exception of one requested intain jewelry taken from a trunk stored instruction, hereafter to be referred to, the a building upon the property of one R. T. instructions requested and refused, so far Harwell. Upon the afternoon of the day folas they were material, were substantially covered by other instructions given by the lowing the burglary appellant was arrested by a police officer of the city of Reno while in the act of attempting to dispose of the stolen jewelry, and was at once taken to the police station. The arresting officer and another member of the city police force, over the objection of counsel for defendant, were permitted to testify to statements made by the defendant to the effect that he purchased a ring, which was part of the stolen jewelry, in the city of Chicago, and a necklace, which was also a part of the stolen jewelry, in the city of Seattle. Shortly subsequent to making these statements the defendant made a confession to the chief of police that he committed the burglary. Error is assigned in the admission of the statements and confession upon the ground that no proper foundation had been laid. The transcript of the testimony discloses no objection whatever to the admission of the confession. Counsel for appellant advises the court that objections to the admissibility of the confession because a proper foundation had not been laid may have been inadvertently omitted in trans court. [4] Error is assigned in the failure of the court to give an instruction of its own motion upon the maxim, "falsus in uno, falsus in omnibus." If counsel for defendant was of the opinion that an instruction of this kind was material, it was incumbent upon him to request the same. counsel for the defendant was refused: [5] The following instruction requested by "The defendant has offered himself as a wit ness, and has testified in his own behalf. This is his legal right, and you are not permitted under the law to discredit or reject his testimony simply on the ground that he is the accused, and on trial on a criminal charge." Section 310 of the Criminal Practice Act (Rev. Laws, § 7160), as amended by the Legislature of 1915 (St. 1915, c. 157), provides: "In the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offenses, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness, the credit to be given his testimony being left 154 PACIFIC REPORTER DENCE. solely to the jury, under the instructions of the 3. HOMICIDE It clearly appears from the reading of the section as amended that purpose of the statute is to forbid the giving of instructions with direct reference to the testimony of the defendant. The court is permitted to, and did in this case, give general instructions applicable to all witnesses. The purpose of the amended statute was, doubtless, to obviate in the future the giving of an instruction hereto fore frequently given in criminal cases and sustained by a number of decisions of this court, and reading as follows: SUFFICIENCY OF EVI cient to establish the corpus delicti. In a trial for murder, evidence held suffi[Ed. Note.-For other cases, see Homicide, 4. CRIMINAL LAW 1170%-WITNESSES Cent. Dig. §§ 471-476; Dec. Dig. 228.] REFRESHING MEMORY-HARMLESS ERROR. allowed to refresh his memory as to a stateWhere, on a murder trial, a witness was at the coroner's inquest, and his testimony giv ment made by accused, by reading his testimony en after such refreshing was substantially the same as before, there was no reversible error, since accused was not prejudiced thereby. Law, Cent. Dig. §§ 3129-3135; Dec. Dig. [Ed. Note. For other cases, see Criminal 11702.] 5. CRIMINAL LAW 706-JOINT PRINCIPAL AS WITNESS-IMPROPER QUESTION-MISCON DUCT. "The defendant has offered himself as a witness on his own behalf, and in considering the weight and effect to be given his evidence, in accused in the murder, who had been previously Where, on a murder trial, a principal with addition to noticing his manner and the proba- convicted and sentenced to death, was produced bility of his statements taken in connection with as a witness by the state, and during the early the evidence in the cause, you should consider part of his examination counsel for accused had his relation and situation under which he gives asked the state in the jury's presence whether his testimony, the consequences to him relating it was admitted that witness was then under from the results of this trial, and all the in- conviction of a felony and in the state's prison, ducements and temptation which would ordi- it was misconduct for the state's counsel to ask narily influence a person in his situation. You the witness whether he was not then in the penshould carefully determine the amount of credi- itentiary under sentence of death, where the bility to which his evidence is entitled; if con- only object of the state's question was to invincing, and carrying with it a belief in its fluence the jury to assess the death penalty truth, act upon it; if not, you have a right to against accused. reject it." The foregoing instruction, while approved by the earlier decisions of the courts of a number of states, has in recent years been severely criticized. The Supreme Court of California, after repeatedly holding this instruction not to be error, later admonished trial courts not to give it, and finally reversed cases where the instruction had been given. From a reading of the transcript in this case we are unable to see how the jury could have reached any other verdict than the one returned. The defendant was deprived of no substantial right, and no substantial error appears. Judgment affirmed. Law, Cent. Dig. § 1661; Dec. Dig. 706.] MONY. cipal in the crime with accused who had been Law, Cent. Dig. §§ 3129-3135; Dec. Dig. 7. CRIMINAL LAW 508-COMPETENCY-CON- One who was jointly indicted with accused for murder and on previous separate trial had been convicted was a competent witness for the MCCARRAN and COLEMAN, JJ., concur.state in a murder trial under Rev. Laws, § 5419, STATE v. TRANMER. (No. 2141.) (Supreme Court of Nevada. Dec. 31, 1915.) 1. CONVICTS 5 CRIMES - POWER TO PUNISH. Where accused was serving a life sentence in the state prison for murder, the district court had jurisdiction to order his production before it for trial on another murder charge. [Ed. Note.-For other cases, Cent. Dig. § 4; Dec. Dig. 5.] see Convicts, 2. HOMICIDE PROOF. 228 · CORPUS DELICTI The corpus delicti of a murder may be established by inference from facts as well as from positive testimony. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 471-476; Dec. Dig. 228.] defining witnesses, and Rev. Laws, § 7451, ap- 8. CRIMINAL LAW 1186-EXAMINATION OF * * Where, on a murder trial, the testimony of and his participation in the crime had been a witness went solely to the identity of accused, clearly shown, the remark of the trial judge, made while counsel for defense was reading questions and answers of the witness at a former trial for the purpose of impeaching him, that there is apparently no inconsistencies or contradictions,' substantial conflict between the two testimonies, there being no for the disregard of technical errors, where no was harmless error under the statute providing substantial rights are denied. Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. [Ed. Note.-For other cases, see Criminal Dig. 1186.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 9. WITNESSES 286-REDIRECT EXAMINA- which is in line with the views expressed in TION-CONVICTED JOINT PRINCIPAL-OFFERS Ex parte Tramner, supra. OF CLEMENCY. On a murder trial, where, on cross-examination of a witness who had been previously convicted as joint principal in the crime on a separate trial, the defense asked him whether he had talkd with the county officers including the district attorney, it was a proper exercise of the court's discretion to allow the state on redirect examination to ask the witness whether he had not been informed that no clemency would be extended to him for testifying in the case, since the inference that offers of clemency had been made might have arisen from such previous question by the defense. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig. 286.] Appeal from District Court, Washoe County; Edward A. Ducker, Judge. J. Frank Tranmer was convicted of murder in the first degree, and he appeals. Affirmed. See, also, 35 Nev. 56, 126 Pac. 337, 41 L. R. A. (N. S.) 1095. J. S. Parker and J. M. Frame, both of Reno, for appellant. George B. Thatcher, Atty. Gen., for the State. COLEMAN, J. The appellant, J. Frank Tranmer, was indicted in the district court of Humboldt county, together with one Nimrod Urie, for the murder of Maria D. Quilici. Separate trials were ordered, appellant was convicted of murder in the first degree, and the jury fixed the penalty at death. From a denial of a motion for a new trial, and from the judgment of the court imposing the death penalty, an appeal has been taken to this court. [1] At the time the case at bar was set for trial by the district court, appellant was serving a life sentence for the murder of one Eugene Quilici; and, when application was made to that court for an order that appellant be brought from the state prison for trial, appellant, through his attorneys, objected to the making of the order, for lack of jurisdiction. The overruling of the objection is assigned as error. The identical question here involved was before the court in Ex parte Tramner, 35 Nev. 56, 126 Pac. 337, 41 L. R. A. (N. S.) 1095, where the question was decided adversely to appellant's contention. Suffice it to say that we have carefully considered the point urged by appellant, and we think that the holding of the court in Ex parte Tramner, supra, is sustained by both reason and authority, and that no good purpose would be served by discussing the question at length in this opinion. An elaborate note to Ex parte Tramner may be found in 41 L. R. A. (N. S.) 1095, where it is stated that the great weight of authority sustains the position of the court in that proceeding. The only later case in point which we have been able to find is that of State v. Rodgers, 100 S. C. 77, 84 S. E. 304, [2] It is next urged that the evidence fails In the case to establish the corpus delicti. of State v. Ah Chuey, 14 Nev. at page 92, 33 Am. Rep. 530, it was held that the corpus delicti may be established as well by inference from facts as from positive testimony. In State v. Cardelli, 19 Nev. 324, 10 Pac. 436, it was 'said: "While it is true that a person charged with the commission of a criminal offense is not called upon to answer the charge without satisfacthe corpus delicti, yet it is not essential, in all tory proof, upon the part of the prosecution, of cases, that there should be any direct evidence upon this point." Such is the general rule. Wharton's Criminal Law (11th Ed.) § 352, citing many authorities. In 21 Cyc. at p. 1029, it is said: "The sufficiency of the proof of the corpus delicti is a question for the jury." [3] The evidence in the present case is quite voluminous, and clearly shows that Eugene Quilici and Maria D. Quilici, his wife, resided at Imlay, Humboldt county, Nev., on and for some time prior to January 6, 1911; that on that night the defendant and one Nimrod Urie, for the purpose of robbery, went to the saloon which was being run by Eugene Quilici, and shortly after entering the place shot both Quilici and his wife, Maria D. Quilici; that Eugene Quilici died instantly; and that one Maria D. Quilici died at Winnemucca, in the same county, about 25 miles from Imlay, on or about the 9th of that month, from a gunshot wound. It is contended that the evidence fails to show that the Maria D. Quilici who died at Winnemucca was the same Maria D. Quilici who was shot at Imlay. We think the jury had ample evidence before it to justify it in finding that the Maria D. Quilici who died at Winnemucca was the Maria D. Quilici who was shot at Imlay. One Lommori, who was called as a witness on the part of the prosecution, testified as follows: "Q. Did you know Maria D. Quilici in her lifetime? A. Yes, sir. Q. What relationship, lici? A. She was my sister. Q. Where did she if any, existed between you and Maria D. Quilive? A. At Imlay. * ** # Q. Mr. Lommori, you realize the fact that the defendant Frank Tranmer or J. Frank Tranmer is being tried for the murder of your sister, do you? A. Yes, sir. * * Q. Was your sister married? A. Yes, sir. Q. To whom? A. To Eugene Quilici. Q. I will ask you if you were a witness at the coroner's inquest over the body of your sister, Mrs. Quilici? A. Yes sir." On cross-examination, the witness testified, in part, as follows: testified in that preliminary, a short time after "Mr. Frame (counsel for defendant): Q. You the occurrence of the killing of your sister, did you not, Mr. Lommori? A. Yes, sir; a short *** Q. Now, referring to time afterwards. your testimony given at the preliminary hearing between January 12 and January 19, 1911, the same occurring a few days after the occur For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 PACIFIC REPORTER rence in which your sister was killed I will ask you to state whether you testified as a witness at and before the coroner's jury investigation for the death of your sister Maria D. Quilici, the same being held before Justice Dunn in the month of January, 1911, at Winnemucca, Humboldt county, Nev., about January 9th? A. I do not remember. Mr. Frame: I suppose it was admitted that it was given there? Mr. Woodburn (district attorney): Yes, sir, it was there. That is correct. * Q. ever hear, just before the happening of the ocDid you currence in which your sister was killed, of Mr. Quilici having an arrangement to buy the Robinson-Kelley saloon which was situated along side of or near the Quilici saloon? A. Yes, sir. Q. Were you at the depot in Imlay on the day following the killing of your sister by some parties, about noon, when Sheriff Lamb brought the two men to the depot?" * (Nev. violation of the rule that a memorandum to reallowed, as it is held that the practice is in fresh the memory should have been made at or about the time to which it relates"-citing authorities. and the coroner's inquest three days later, it Since the killing was on January 6th, would seem that the reason given by Prof. Jones for excluding such testimony does not apply in this case; but we will not undertake to determine what the law on this point is, as the two statements are substantially the same, and we are unable to see that any prejudice could have been done appellant by the ruling of the court. [5] Appellant also assigns as ground for in asking the following question: reversal the action of the district attorney Mr. Urie, if you are not now in the penitentiary "Mr. Callahan: Q. I will ask you to state, of the state of Nevada under sentence of death." From the foregoing extracts from the evidence it will be seen that witness Lommori testified that he knew that the defendant was on trial for the murder of his sister Maria D. Quilici, which was committed January 6, 1911, and that he attended the coroner's in- tained, and the jury was directed by the Upon objection being made, it was susquest over her body at Winnemucca on Jan- court to disregard the question entirely. uary 9th, three days later, and the prelim- Soon after this witness had begun to give inary examination which was held a few his testimony, counsel for appellant, in the days thereafter. Dr. Giroux testified to hold-presence of the jury, and before the question ing the autopsy in Winnemucca, and of giv- quoted was asked, addressing the district ing testimony at the coroner's inquest Jan-attorney, said: uary 9, 1911, which was held over the body of one Maria D. Quilici. We think the evidence is ample to establish the corpus delicti. The questions asked by counsel for defendant, as quoted, show that he considered the Maria D. Quilici over whose body the coroner's inquest was held to be the same person as Maria D. Quilici, the sister of Lommori. [4] Error is assigned, also, to the ruling of the trial court in permitting the witness Urie to refresh his memory by reference to testimony given by him at the former trial. The witness was asked what the appellant said to him after the crime had been committed and when he (witness) told appellant that he had lost his mask, to which he replied: "Well, he said that was a bright trick and he ought to kill me. Q. What is that? said that was a bright trick and he ought to A. He kill me. Q. Do you remember the exact words? A. No, I don't know as I can remember the exact words, but something to that effect." this witness is now under conviction of a felony "Mr. Callahan: I suppose it is admitted that and is in the state's prison?" preliminary question or suggestion made by There is in our judgment nothing in the counsel for the defendant, "I suppose it is admitted that this witness is now under conprison?" which sustains the position of counviction of a felony and is in the state's sel for the state in urging, or which would justify this court in saying, that defendant's counsel had "opened up the subject, and in all probability brought to the attention of the jury the real status of the witness Urie." For the purpose of raising the objection to the competency of the witness Urie to testify on behalf of the state, it was necessary for opposing counsel to admit the fact, or to counsel for defendant either to request the ask leave to prove as a foundation for the objection that the witness Urie was in the At this point in the proceedings the wit-state prison under conviction of a felony, and ness, over the objection and exception of defendant, was permitted to read the testimony given by him at the coroner's inquest: "Mr. Callahan: After refreshing your memory, can you give the exact language used by the defendant at that time?" After objection and exception by counsel for defendant, the witness answered: "I can now, after I read that. Q. Just give the language used by the defendant in reply to your statement that you had lost your mask. I told him I had lost my mask, and he say: A. 'You are a pretty son of a plug you right here."" I ought to Prof. Jones, in his work on Evidence, at section 878, says: "In some jurisdictions, it is held that a witness may refer to a former affidavit or deposition given by him for the purpose of refreshing his memory. While in other states this is not was a codefendant of the defendant Tranmer. petency of Urie as a witness, defendant had the statutory right to show that the witness | of a fact that might have a greater influence was under conviction for a felony, for the in persuading the jury to impose the death purpose of affecting his credibility as a penalty upon Tranmer than the fact that witness. This right counsel for the state another jury had imposed the death penalty were unquestionably aware of. The record upon Urie, who might under the evidence contains the following statement made by have been regarded as morally, if not legalassistant counsel for the state: ly, less guilty than Tranmer. "Mr. Woodburn: Now, if your honor please, we have no objection to that question being stricken out, and the jury being instructed to disregard it. It was made in good faith, and we thought we would just show the status of this witness, because it goes to his credibility, and it was done under no desire to prejudice the defendant, and it was first suggested through counsel's question as to the status of this man as to where he was living at this time, and, if counsel insists, we are satisfied to have the jury instructed that they may disregard the testimony of the witness on that point." It is no answer to the seriousness of this assignment that the question was suggested by the prior question and objection of counsel for defendant. It was not so suggested. Counsel for the state, upon this appeal, we think should have presented some more substantial basis for holding this assignment of error to be without merit. In our opinion, the improper question may be regarded as not prejudicing the substantial rights of defendant solely because it was not answered [6] From a reading of the record we are and because the jury was promptly instrucimpressed that the purpose of the questioned "to entirely disregard the question." It is only in recent years that a number of states have so changed their Criminal Codes as to permit the jury in first degree murder cases to fix the penalty at death or life imprisonment. In but few cases has the question arisen as to whether evidence, not admissible upon the question of the guilt or innocence of the defendant, may nevertheless be offered for the purpose of influencing the jury as to the penalty in their discretion to be imposed. This question was touched upon by the Supreme Court of California in the recent (1915) case of People v. Witt, 148 Pac. 928. In the opinion in that case, Angellotti, C. J., speaking for the court, said: was to get before the jury the fact that Urie was under sentence of death for his participation in the murder of the Quilicis, for the purpose of influencing the jury when they came to consider the question whether they should impose death or life imprisonment as the penalty for defendant's crime. In our opinion the asking of the question was highly reprehensible conduct on the part of counsel asking it, and if it had been answered would have constituted reversible error. It should be borne in mind, in considering this assignment of error, that the defendant Tranmer was already under conviction of murder in the first degree, with sentence of life imprisonment, for the murder of Eugene "It is not claimed that the offered testimony Quilici, and that from the judgment in was relevant or material on the issue of either that case no appeal had been taken. There guilt or degree of crime, but simply that, inasmuch as the jury had the right to assess the was no purpose sought to be accomplished, punishment in the event of conviction at either or which could be accomplished, by the death or life imprisonment, appellant was entitled to have admitted for their consideration trial of the defendant Tranmer for the mur-evidence as to matters not otherwise relevant or der of Maria Quilici, except to obtain, if material. We are of the opinion that our law possible, a conviction of first degree murder, does not contemplate any such independent inwith the death penalty imposed. There was, quiry on a trial for murder, and that the determination of the jury, under the provisions however, no duty imposed upon counsel rep- of section 190, Penal Code, as to death or life resenting the state to bring before the jury imprisonment, is necessarily to be based solely facts clearly incompetent for the purpose made by the indictment or information and the on such evidence as is admissible on the issues of influencing the jury in fixing the penalty plea of the defendant." which the law authorized it to prescribe. Upon the contrary, counsel for the state owed a duty to defendant not to attempt to offer such evidence. At the time the question objected to was asked, counsel for the state undoubtedly knew what the testimony of the witness Urie would be. They knew that such testimony, in a measure at least, was having the indorsement of the representatives of the state as to its verity, and that Urie's testimony made him out to be less blamable than the defendant Tranmer; that, if Urie spoke the truth, Tranmer was the instigator of the robbery which led to the murder; that Urie was a reluctant participant, acting under a certain degree of compulsion, and fired none of the shots which resulted in the death of the Quilicis. In See, also, State v. Thorne, 41 Utah, 414, 126 Pac. 286, Ann. Cas. 1915D, 90. [7] It is next insisted that the trial court erred in overruling appellant's objection to the competency of witness Urie to testify in behalf of the state. In support of this assignment of error, it is said: "First, that Urie, being under conviction of a felony, was disqualified as a witness except in cases where called at his own request and in his own behalf. Second, for the further reason that the record discloses that Urie was jointly indicted and jointly charged with the defendant. It was provided by section 1441 of the Compiled Laws of Nevada (1873) that: "Persons against whom judgment has been rendered upon a conviction for felony, unless pardoned by the Governor, or such judgment has been reversed on appeal, shall not be wit |