Opinion of the Court--Belknap, J. wealth v. Hopkins, 2 Dana, 395; Jarboe v. Smith, 10 B. Monroe, 257; Merritt v. Campbell, 47 Cal. 543.) Thomas Wren and Fred. W. Cole, for Respondent. The dismissal of the action of ejectment is not a bar to respondent's recovery in this action. This action is not for the same cause of action. The action of ejectment was dismissed upon the written consent of the defendant. That is sufficient; and the fact that the party stipulated further, that each party should pay his own costs, and that plaintiff should be relieved from liability upon his injunction-bond, could not alter the effect of the dismissal, neither upon principle nor authority. Plaintiff had two separate and distinct causes of action against defendant. One for the possession of twenty feet of mining ground; the other for the value of ore taken from the ground. He commenced his action for the possession of the ground. Will it be doubted that if he had recovered the ground in that action, that he could then have proceeded upon his other cause of action, and have recovered in that also? Certainly not. Why, then, should he be cut off from recovering the balance of the ore, because he recovered possession of his ground by a different and more expeditious and less expensive mode? The stipulation expresses the exact terms of the settlement of the former suit, taken in connection with the last deed from Blasdel to Phillpotts. By the Court, BELKNAP, J.: An action of ejectment for a mining claim between the parties to the present action was dismissed upon the written stipulation of their attorneys, conditioned that each party paid his own costs, and the plaintiff be released from liability on an undertaking given for a restraining order. Judgment was entered accordingly. Subsequently the present action of trespass for the mesne profits was commenced. In both cases the plaintiff relied upon the same. title. The defendant pleaded the judgment in the ejectment Opinion of the Court--Belknap, J. suit, and offered it in evidence upon the theory that it was a bar to the plaintiff's recovery. The refusal of the court to allow this evidence to go to the jury is assigned as error. The intention deduced from the agreement of the defendant to pay costs, for which he was not otherwise liable, and his release of the plaintiff from liability on the injunction-bond, is that the parties had adjusted their controversy; and this view is strengthened by the fact that the defendant in pursuance of the settlement quitclaimed the title in litigation to the plaintiff. The judgment rendered is not embraced within the provisions enumerated in section 151 of the Practice Act for a judgment of dismissal or nonsuit, and is, therefore, by the terms of the statute, made a judgment upon the merits. For the reasons recited it is against the plaintiff. Its legal effect is to operate as a bar to any other suit between the same parties on the identical cause of action. (Bank of the Commonwealth v. Hopkins, 2 Dana, 395; Jarboe v. Smith, 10 B. Monroe, 257; Merritt v. Campbell, 47 Cal. 542.) It is contended, however, in behalf of plaintiff, that such judgment will not work an estoppel to the present action. The claim for mesne profits is founded upon the title and is inseparable from it. To recover, the plaintiff is necessarily required to put in issue and establish his right to the land. In such actions it is settled that a defendant is estopped to deny the record of a judgment in favor of a plaintiff in a prior action of ejectment founded upon the same title; and, as estoppels are mutual, the converse is true, that a like judgment rendered against a plaintiff estops him from asserting his title. Therefore we think the defense was well pleaded. Judgment reversed and cause remanded. HAWLEY, J., having been of counsel for appellant in the ejectment suit, did not participate in the foregoing decision. Statement of Facts. [No. 687.] THE STATE OF NEVADA, RESPONDENT, v. CHARLES GLOVERY ET AL., APPELLANTS. ASSAULT WITH INTENT TO ROB.-The intent of the defendants in making the assault constitutes the gist of the offense, and must be clearly established. IDEM. The intent is not necessarily to be inferred from the act done, but must be made out from an impartial consideration of the entire surroundings, which is sometimes extended beyond the immediate res gesta. ACTS OF ROBBERY—INSTRUCTIONS.-Under an indictment charging the crime of an assault with intent to commit robbery: Held, that instructions that the jury must find some "visible act of robbery committed by defendants" against the person upon whom the assault was made, showing an intention to rob, were properly refused. CHARGE OF THE JUDGE-WHEN NOT PREJUDICIAL.-Where the Court unnecessarily instructed the jurors in their duties, but told them nothing but what the law presumed them to know: Held, that it could not have prejudiced the defendants. INSUFFICIENCY OF EVIDENCE.-A verdict in a criminal case will not be set aside where there is any evidence to sustain it. APPEAL from the District Court of the Second Judicial District, Washoe County. The defendants, Charles Glovery, Edward Allen, John Duggan and Charles Warren, were indicted for, tried and found guilty of, an assault with intent to commit robbery. W. T. C. Elliott, upon whom the alleged assault was made, testified to certain facts which induced him to suspect that the defendants were meditating the commission of some robbery at the Capital House in Reno, kept by witness, and that he had disguised himself for the purpose of watching their movements; that while going through an alley in said town about three o'clock in the morning, with the intention of passing by the defendants without their recognizing him, he stumbled along as if drunk, with his hat drawn down over his face, when one of the defendants said, "There goes a stiff, boys; let's go through him; let's go for him," or words to that effect. Another said, "Let's nail him," that the defendants then rushed upon him and caught hold of his arms; that they had pistols in their hands; that Statement of Facts. he raised his hat and said, "Let me alone, I am no stiff;" that one of the defendants then said, "It is a policeman; let's kill him;" that he was then struck in the face with their pistols and received a blow upon his head that almost knocked him down, whereupon he called for help, and while struggling with the defendants he received a pistol wound upon his head; that he then heard some person halloo, and the defendants let go of him and ran away. The following are the instructions referred to in the opinion: 1. “The intention of the defendants, or any of them, to commit the crime of robbery on the person of one W. T. C. Elliott, at the time of the assault charged in the indictment, is made a necessary ingredient of crime as expressly designated or defined by law, constituting, indeed, the essence of the crime with which they are charged in the indictment, and in which consequently the intention of the defendants must be made to appear by evidence in addition to the proof of the external visible act or acts of robbery, which the intention of the defendants is required to qualify." 2. "Should the jury fail in finding from the evidence any external visible act of robbery committed by the defendants, or any of them, on or against the person of W. T. C. Elliott, showing an intention to rob him, they will not find the defendants, or any of them, guilty of an assault with intent to rob." * After the jury had deliberated for eighteen hours, the court was informed by the foreman that six jurors were in favor of finding defendants guilty of an assault only, and six were in favor of finding them guilty as charged in the indictment, and that for this reason they could not agree. The court thereupon of its own motion instructed the jury as follows: * * "It is to be hoped that you will not fail to render a verdict through any mere pride of opinion or stubbornness. Your honest convictions you. should, of course, adhere to; but a wanton refusal to agree upon a verdict is a departure from the line of duty which jurors should follow, and renders the administration of the law in our courts extremely onerous and unsatisfactory. * * * Argument for Appellants. Let each juror, therefore, again endeavor, in a dispassionate and reasonable frame of mind, to consider this case in its true light as it appears from the testimony; and giving due, but not undue, credit and attention to the opinions of his brother jurors, endeavor to do in this case that which will satisfy his conscience and his oath." W. Webster, for Appellants. The first error complained of is the refusal of the court to give to the jury instructions 1 and 2. The first of these instructions is certainly law, unless the words "of robbery" after the words "act or acts" in the instruction, carries it beyond the rule governing the question of intention. The intention to commit a crime is at law criminal-" the will is taken for the deed," as it were-but the proof in a case where intention is charged as the gist of the offense is arrived at in a somewhat different manner from a case wherein the intention has been fully executed or incorporated with the accomplished fact. In the latter case, the accomplished or consummated fact being proved, the presumption is that the accused intended to do the act, for a reasonable person is presumed to intend that which he deliberately does; and should a person do an act that is criminal, it logically follows that the person's intention was also criminal. In short, the accomplished fact proves the intention. But in the former case there is no accomplished fact from which the intention may be presumed. The gist of the offense is shifted from the fact completed to that condition of the mind termed intention. The subject of investigation is not the deed, but the more subtile subject of the will. In that investigation, the acts of the accused are secondary, the intention now being the primary subject. It will not be presumed from the act or acts of the accused immediately connected with the criminal fact he is accused of having the intention to commit, because there is no consummated fact from which the law will presume an intention existing. The law and reason are therefore disarmed. (Burrill on Circumstantial Evidence, 298.) |