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fendant, the defendant may demur thereto rection to enter judgment in favor of the upon that ground, and where the petition Chicago & Atchison Bridge Company against does not disclose that fact the objection may the executor and trustees of the estate of debe taken by answer; but, if no objection is ceased for the sum of $4,900, with interest taken either by demurrer or answer, the de- from November 15, 1889. All the justices fendant is deemed to have waived the same. concurring. Civ. Code, $ 91; Railway Co. v. Nichols, 9 Kan. 248 Parker v. Wiggins, 10 Kan. 420;

(22 Nev. 285) Gilmore v. Norton, Id. 491; Seip v. Tilgh

STATE J. VAUGHAN. (No. 1,416.) man, 23 Kan. 291. There is a further contention that the cause is barred by the stat. (Supreme Court of Nevada. March 20, 1895.) ute of limitations, which provides that an ac- HOMICIDE-CHALLENGES OF JURORS — DYING DECtion for relief on the ground of fraud must LARATIONS-SELF-DEFENSE-CHARACTER OF DE

CEASED-THREATS-MALICE-INSTRUCTIONS. be brought within two years after it accrues. The judgment was obtained, as we have seen,

1. A challenge to a juror upon the ground of in June, 1885, and this action was not

"implied bias” is insufficient. The particular

ground of challenge must be specified. brought until January 26, 1889. Laying aside 2. The allowance of a challenge to a juror the fact that the execution was not issued up- is not the subject of an exception. on the judgment until 1887, it still appears

3. Where the evidence shows that, at the that the cause is not barred. An action up

time of making dying declarations, the deceased

had no hopes of recovery from the wound he on the same judgment was brought against had received, the declarations are admissible. the defendant by John C. Tomlinson, as re- His condition of mind may be shown by stateceiver of the bridge company, in March, 1888,

ments made both before and after the declara

tions. and that action remained pending until about 4. Where, upon state's motion, certain evithe time the present action was begun, when dence was stricken out, but subsequently the moit was dismissed without prejudice, the re

tion was withdrawn, and the jury informed by

the court that the evidence would stand as eviceiver having been discharged. As Tomlin

dence in the case, any error in the former ruling son was appointed receiver of all the prop- is cured. erty of the bridge company, and was author- 5. In a case involving the question of selfized to collect all claims and demands due to

defense, where defendant claimed that deceased

began the fatal affray, evidence tending to prove the company, he was a proper party to bring

that at another time than the homicide deceased the suit, and hence the statute did not run had attempted to shoot the brothers of defendduring the pendency of that action. It is

ant was stricken out. Held, no error. true that about two years and ten months

6. Where, in such a case, the defendant had

introduced testimony tending to prove that the elapsed between the rendition of the judg.

deceased had a quarrelsome, turbulent, and vioment which is the basis of this action and the lent disposition, that he had once wantonly shot time when the action was brought by the re- at defendant, and at the time of the homicide ceiver, but it is agreed that between June 25,

was making a murderous attack upon him, held,

that this was such an attack upon the character 1885, and June 25, 1888, George Fowler was

of deceased as authorized the state to introduce absent from the state one year, and therefore evidence that the reputation of deceased for the bar was not complete. It is finally urged

peace and quietness was good. in support of the judgment that this action

7. Upon the trial of the case, there was a

question as to whether deceased was accidentalcannot be maintained upon the judgment of ly at the place where the homicide occurred, or the circuit court of the United States. We had gone there for the purpose of preventing dethink the judgment of the federal court for

fendant from passing through a fence. The

mother of defendant testified that the day before, the district of Kansas cannot be regarded as

in the presence of a young sister of deceased, that of a foreign court. While there is some she had stated that her sons would go to a cerdiversity of judicial opinion upon this ques

tain mine the next day, which might have taken tion, there can be little doubt that it was the

them past this place. There was no evidence

that the girl had communicated this informaintention of the legislature of Kansas to put tion to deceased, and upon this ground the testithe judgments of the circuit court rendered mony was stricken out. Held no error, as there within this state upon an equal footing with

was no presumption that it had been communi

cated, and, unless it had, it cut no figure in the the judgments of courts of record of the

case. state. Under section 419 of the Civil Code 8. The jury were instructed that, to constiit is provided that “judgments of courts of

tute malice aforethought, it was only necessary

that there should be a formed intention to kill; record of this state, and of courts of the

that malice aforethought means the intention to United States rendered within this state, are kill. Held error, as malice is an inference to be liens upon the real estate of the debtor, with- drawn from all the facts in the case, and is not in the county within which judgment is ren

established by mere proof of an intentional kill

ing, for there may be an intentional killing in jusdered." See, also, Ballin v. Loeb, 78 Wis.

tifiable self-defense, or where the crime only 404, 47 N. W. 516; Bullit v. Taylor, 34 Miss. amounts to manslaughter. 708; Embry v. Palmer, 107 U. S. 10, 2 Sup.

9. The father of deceased owned a ranch, Ct. 25; Crescent City Live-Stock Co. v. Butch

through which a road ran, across which he had

placed gates. Defendant claimed this to be a ers' Union Slaughter House Co., 120 U. S.

public road, and, when passing through it, he 141, 7 Sup. Ct. 472; Merchants' Nat. Bank v. refused to shut the gates. This led to difficul. Chattanooga Construction Co., 53 Fed. 314.

ties and a feeling of hostility between defendant

and deceased. The court instructed the jury The judgment of the district court will be

that a person passing through gates in fences reversed, and cause remanded, with the di- inclosing fields without again shutting them was guilty of a misdemeanor. Add, that this in- him, one with a pistol, and the other with struction was upon a point irrelevant to the case,

an axe, and that, to save his own life, he and that it was prejudicial to defendant, in that its only effect was to show that the defendant

was compelled to shoot them. had committed another crime in regard to the 1. Several errors are assigned upon the controversy between deceased and himself.

court's rulings denying the defendant's chal(Syllabus by the Court.)

lenges to trial jurors who were challenged Appeal from district court, Lander coun.

on the ground of "implied bias." This is ty; A. L. Fitzgerald, Judge.

not such a challenge as the statute requires. Alpheus Vaughan was convicted of mur- The term “implied bias” covers nine differder, and appeals. Reversed.

ent grounds of challenge. Section 310 of

the act regulating criminal proceedings J. H. MacMillan and James F. Dennis, for

(Gen. St. § 4220). Gen. St. § 4222, provides appellant. W. D. Jones, Atty. Gen., and D.

that, “in a challenge for an implied bias, S. Truman, Dist. Atty., for respondent.

one or more of the causes stated in section

340 must be alleged." This was not done, BIGELOW, C. J. The defendant was con- and consequently the challenge was insufvicted of murder in the first degree for the ficient to raise any point for the considerakilling of William Litster, Jr. At the time tion of this court. State v. Gray, 19 Nev. of the homicide, the defendant was 21 years 212, 218, 8 Pac. 456; State v. Raymond, 11 of age, and the deceased 16. For some time Nev. 98, 106. prior to the killing, there had been trouble 2. It is claimed that the evidence shows between the family of defendant and the the juror Rapley to have been a qualified family of deceased. This seems to have juror, and, consequently, that the court errbeen greater between defendant and deceas- ed in excusing him upon a challenge by the ed than between the other members of the state. But the right to reject does not infamilies, and was principally concerning clude the right to select jurors. If the de. the right to free passage through a ranch fendant was tried by an impartial jury, that owned and possessed by the father of de- is all he has the right to demand; he has ceased, situated in Boone Cañon, some four no vested right to be tried by some paror five miles above the ranch owned by the ticular juror. Besides, the action of the father of defendant. The Litster ranch was court in allowing challenges is not made inclosed with a wire fence, which crossed the subject of an exception. State v. Larthe road running up the cañon, gates being kin, 11 Nev. 314, 323; State v. Pritchard, 15 put in at the crossings. TheVaughans claim- Nev. 74, 79. ed this to be a public road, and sometimes, 3. The third point is that the dying decwhen passing along it, they left these gates larations of the deceased were not admissi. open. On the morning of the day of ble, for the reason that no sufficient foundathe homicide, the defendant, his brother tion had been laid; that it did not appear Charles, and a hired man started, with a that they were made under a prospect of team loaded with supplies, to go to a mining “almost immediate dissolution." The evi. claim owned by them in the hills or moun- dence shows that the boy was shot about tains above the Litster place, which they 11 o'clock in the forenoon; that he fell at intended working. They passed into the the place where shot, or very near it, and Litster ranch through the lower gate, and lay there until carried to the house, where up through it, nearly to the upper side, he died about 4 o'clock that afternoon; that where they turned off the main road for the he suffered greatly from the wound, and purpose of taking a road up a side cañon stated that "he was going to die, and he known as “Water Cañon," which ran in knew he was going to die right away"; that the direction of the mine. A few rods from he refused to take medicine, saying there where they turned off they came to a divi- was no use to take it; there was nothing sion fence crossing the road, and through could do him any good. A physician had which it was necessary for them to pass. been sent for, but he said he would be dead There was no gate in this fence, but there before the doctor could see him, and, in was a place where the wires had been pre- fact, did die before his arrival. This eviviously taken apart by people passing dence was uncontradicted, and, if not sufthrough, though the gap was then closed. ficient foundation for the admission of the At this point they met the deceased and an declarations, we are unable to see what elder brother, who objected to their pass- would be. The fact that these statements ing through the fence. In the difficulty that he expected to die were not all made which ensued, both the Litsters were killed prior to his first relation of the circumstanby the defendant with a Winchester rifle, ces of the homicide is immaterial. The cirthe brother dying immediately, and William cumstances were told several times after living but a few hours. As to this difficulty they were made, and, in fact, the only figure the testimony differs widely; that of the these statements cut is to show that his state tending to show a willful and unpro- relation of the circumstances was made unvoked murder by the defendant, and that der the expectation of impending death. upon the part of the defendant that the They show that from the first he had no Litsters were making a violent assault upon hopes of recovering, and that is sufficient.

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4. The officer who arrested the defendant, fendant and his family; that he had fretestifying in the case, was asked what the quently made threats against them, includdefendant said at the time of the arrest, and ing defendant; that upon one occasion he replied: "Alpheus Vaughan said, 'I shot had wantonly shot at him, and at the time Willie Litster;' I think it was 'in self-de- of the homicide was making a murderous asfense.' The prosecution moved to strike sault upon him. We think this was equivout the latter part of this answer, presum- alent to proving his character as a quarrelably the part stating that the shooting had some, turbulent, and violent boy, and fully been done in self-defense, and the motion justified the admission of the evidence of was granted. Subsequently, however, on good character in rebuttal. Davis v. Peothe same day, the prosecution asked to ple, 114 Ill. 86, 95, 29 N. E. 192; Bowlus v. withdraw the motion, and that the whole State, 130 Ind. 237, 28 N. E. 1115; Fields v. answer be permitted to stand. The court State, 134 Ind. 46, 32 N. E. 780; Russell v. thereupon informed the jury that the ob- State, 11 Tex. App. 296; Everett v. State jection to the testimony had been with- (Tex. Cr. App.) 24 S. W. 505. drawn, and that the entire answer was be- 7. The mother of defendant testified that, fore them as evidence in the case. We see the day before the homicide, she had been no reason to doubt that this cured the er- at a neighbor's house, and there stated, in ror in the first ruling, and it is unnecessary the presence of a sister of deceased, about to consider it further.

10 years of age, that her sons were going to 5. Charles Vaughan testified that about a the mine the next day. No objection was year prior to the homicide, while he and made to this testimony when offered, except another brother, Frank Vaughan, were that the attorneys for the state stated that working at the mine, the two Litster boys they reserved the right to move to strike it had shot at them twice, apparently either out if not properly connected. At the close wantonly or for the purpose of driving them of defendant's case, they made this motion, away. This evidence was, upon motion by upon the ground that it did not appear that the prosecution, stricken out. While the the girl had told her brothers of what she practice of admitting testimony without ob- had heard, and the evidence was stricken out. jection, and then moving to strike it out, It is now contended that this ruling was is one not to be commended, particularly wrong, because the jury might have inferred when done by the state in a criminal case, that she had done so. But, before evidence where about the only effect of striking it of one fact should be admitted as presumpout is the additional chance of making an tive evidence of another fact, there should error, we do not think that the court erred be some usual and recognized connection bein the ruling here. Evidence of collateral tween them. This does not exist here. The matters should only be admitted when it information may have been communicated, has some tendency to throw light upon the or it may not. There is as much probabilcircumstances surrounding the killing. This ity one way as the other. At the best, the is the principle upon which threats, pre- deduction would be a “mere guess," which is vious attacks, etc., made by deceased upon not permissible. 1 Greenl. Ev. (15th Ed.) $ the defendant, are admitted. Ordinarily, as. 13, note; Douglass v. Mitchell, 35 Pa. St. saults made upon a third person by de- 440; Manning v. Insurance Co., 100 U. S. ceased could only bear upon his general 693. character or disposition, and as to that it 8. The "Catechism of the Christian Docis only evidence of general reputation, and trine” was improperly admitted in evidence, not of particular actions, that is admissible. but it was so entirely immaterial that it We do not think the evidence shows such could not have influenced the verdict in any a feeling by deceased against Charles and way, and consequently the error was harmFrank Vaughan and the defendant jointly as less to the defendant. should alter this rule.

9. As already stated, the defendant admit6. The prosecution was permitted in re- ted the killing by shooting with a rifle, but buttal, over the defendant's objections, to claimed it had been done in self-defense. introduce testimony to prove that the char- Under these circumstances, the issues beacter of deceased for peace and quietness fore the jury were (1) whether this defense was good. It is argued that this was error, had been made out; (2) if not, of what debecause his character had not been attack- gree of crime the defendant was guilty. It ed. But there may be such attacks made was in the power of the jury to find him as will authorize the admission of evidence guilty of murder in the first degree, murder of good character without any witness hav- in the second degree, or of manslaughter. It ing testified directly that the reputation of consequently became highly important that the attacked party was bad, and that seems correct instructions defining the distinctions to be the case here. The defendant, and between these different degrees should be others in his behalf, had testified to many given. In the second instruction the court facts tending to show that the deceased pos- informed the jury that murder is the unlaw. sessed a quarrelsome, turbulent, and vio- ful killing of a human being with malice lent disposition; that he was in the habit aforethought, either express or implied, of using very bad language towards the de- which is correct. But in the eighteenth in

was

struction, in attempting a definition of mal- time of inflicting the wound, the killing is ice aforethought, this language was used: murder in the second degree." Commenting "The use of a dangerous weapon under a upon this, the court said: "This latter inprovocation by words only, or under no struction contains an error which may have provocation, is always evidence of malice misled the jury. It informs them that inaforethought. To constitute malice afore-tention to kill, existing at the commission of thought, it is only necessary that there be a the act, constitutes express malice. This is formed intention to kill. Malice afore- entirely wrong. In justifiable homicide thought means the intention to kill; and, there is intention to kill, but not necessawhere such means are used as are likely to rily malice or premeditation. In murder in produce death, the legal presumption is that the first degree there is intention to kill, acdeath was intended." This, we think, was companied with premeditated malice, exerror. The fact that a killing was intention- cept in certain cases in which certain acts al does not necessarily prove that it was are made murder by statute. In murder in done with malice; for an intentional killing the second degree there is intention to kill, may be entirely justifiable, as where it is accompanied by malice, but without predone in necessary self-defense, or it may be meditation. In manslaughter there may be only manslaughter, as where it is done in intention to kill arising from the sudden the heat of passion caused by a sufficient transport of passion. it may, and must provocation. What it is must depend upon in this grade of offense, be unaccompanied the manner of the killing and the surround- by both premeditation and malice." In ing circumstances. The instruction

Trumble v. Territory, 3 Wyo. 280, 21 Pac. highly prejudicial to the defendant, for, if 1081, the following instruction was held to guided by the law there laid down, the jury be erroneous: “Where the fact of killing must have reasoned thus: (1) The defendant purposely by the use of a deadly weapon is admits the use of such means as were likely proved, malice is to be presumed, unless it to produce death, and that did produce appears from all the evidence in this case death; therefore, the presumption is that that the killing was without malice, or was death was intended. (2) An intention to kill justifiable or excusable;" the court saying: constitutes malice aforethought. (3) A kill. “The jury should be directed that it was ing with malice aforethought is murder. their duty to decide from all the facts of the Therefore, upon the defendant's own ad- case, many or few, whether the killing was mission, without regard to anything else, he malicious.” In People v. Barry, 31 Cal. 357, is guilty of murder. We say without regard where the instruction was that in case of a to anything else, because, although the law mutual combat, “when one uses superior concerning self-defense and manslaughter weapons to those possessed by the party is correctly laid down in the instructions slain, malice may be inferred, and the killthey contain nothing, and, indeed, scarcely ing amounts to murder," the court said: could contain anything to correct the error If A. should make an assault upon B. with made here. In the twenty-fifth instruction a deadly weapon, by the use of which he the law concerning malice is correctly might readily accomplish his manifested stated, and, as it clearly demonstrates the purpose to kill B., and the latter, having no

of the eighteenth instruction, we other means of saving his own life except quote from it: "The existence or nonexist- by killing his assailant, should in necessary ence of malice is an inference to be drawn self-defense, slay him, could it be seriously from all the facts in the case. If malice is contended that the act done in such necfound, it must be drawn as an inference essary self-defense was done with malice, from everything that is proved taken to- and that the killing was murder, because it gether as a whole. Every fact, no matter happened that the weapon so used in selfhow small, every circumstance, no matter defense was superior to that in the hands of how trivial, which bears upon the question the assailant? No one, we apprehend, would of malice, should be considered by the jury deliberately undertake to support such a at the same time that they consider the use proposition.” To the same effect are Peoof the deadly weapon, to wit, the gun with ple v. Freel, 48 Cal. 431; Quarles v. State, which the defendant here admits he shot 1 Sneed, 407; Maher v. People, 10 Mieh. the deceased, Willie Litster; and it is only

212; Erwin v. State, 29 Ohio St. 186; Cahn as a conclusion from all these facts and cir- v. State (Tex. App.) 11 S. W. 723; 2 Bish. cumstances that malice is to be inferred." Cr. Law, $$ 615, 676, 695; Whart. Hom. S But, of course, the giving of a correct in- 669; Stokes v. People, 53 N. Y. 164; Kent struction does not cure an incorrect one, be- v. People, 8 Colo. 563, 9 Pac. 852. cause it is impossible to determine which 10. The jury were also instructed that any the jury followed. That an intention to kill person passing through gates in fences indoes not constitute malice is well settled by closing fields, and not shutting and fastenthe authorities. In Dennison v. State, 13 ing the same, shall be deemed guilty of a Ind. 510, the trial court had instructed the misdemeanor. While this was substantially jury that, “if there be evidence of express copied from the statute, we cannot but remalice-that is, a positive intention to kill- gard it as erroneous and prejudicial to the existing in the mind of the slayer at the defendant, under the circumstances existing

error

here. In the first place, it is, at least, doubt- This is sufficient to dispose of the appeal; ful whether the statute would apply to the but, in view of the fact that the case will case of a gate placed across a public road, have to be retried, it is proper for us to noas it appears the Vaughans claimed this to tice other rulings that, although they have be. But, disregarding that, the instruction not been particularly called to our attention, was upon a point that cut no legitimate were, some of them at least, objected to by figure in the case. As we have seen, the the defendant, and, if repeated, may be maiu question for the jury to decide was urged as error upon another appeal. As alwhether the defendant, in killing William ready stated, the only evidence properly adLitster, had acted in self-defense. It was missible is that which in some manner tends proper and necessary for them, in determin- to throw light upon the killing. Upon the ing this question, to consider everything ad- opening, it was necessary for the state to mitted in evidence that would assist in com- introduce its evidence tending to establish ing to a correct conclusion as to what oc- the commission of the homicide by the decurred at the fence that fatal morning. fendant, and such as tended to prove that That was the central point, and evidence of it was malicious, willful, deliberate, and collateral occurrences was only material in premeditated. In defense, the defendant so far as it tended to throw light upon what could introduce his evidence tending to took place there. Did the defendant kill show that it was done in self-defense, inthe deceased without cause or excuse, or did cluding such as might tend to prove that the the Litsters first make such a murderous at- feelings of deceased towards the defendant tack upon him that he was justified in kill- were such as might have caused him to being in self-defense, as he claims? As re- gin the deadly affray, or to make the first flecting upon this, as well as upon the ques- attack. Rebuttal evidence would then be tion of malice, it was proper to show the all that tended to establish that the killing state of feeling existing between the par- was not done in self-defense. Perhaps this ties. There was a conflict in the testimony general statement will not assist very maas to what occurred when they met. If the terially upon a retrial; but in the face of defendant had such feeling against the de- such a voluminous record, unassisted by ceased as might prompt him to attack and argument upon the points, it is difficult to murder him without cause, this would draw the line as to all that was properly adstrengthen the case of the prosecution. On mitted and what was not. Without atthe other hand, if the feelings of the de- tempting this, it is safe to say there was ceased towards the defendant were such much evidence upon both sides that could as might have caused him to make the first have no legitimate influence upon the vermurderous assault, its tendency would be dict. In our judgment, as the case is now to strengthen the defense. In showing this, presented, the evidence as to whether there evidence concerning the gates was neces- was any other road that the Vaughans sarily admitted, because this was the mat- might have taken in going to their mine, ter, or one of the matters, about which the whether the road up Water Cañon was good feeling had arisen; but the fact that, in or bad, whether they had any mine, whether leaving them open, the defendant had com- a team that had been driven up to the fence mitted a misdemeanor, had no tendency to could be turned around without passing show an increase or diminution of his ani- through the gap, whether the elder Vaughan mosity, nor, indeed, that he had any ani- had ever asked permission of William Litmosity whatever. The defendant was not ster, Sr., to pass through the fence, of the being tried for leaving gates open, and the conversation between them concerning the instruction was no more relevant to the is- poisoning of the dog, of what title Litster sue before the jury than would have been had to his ranch, was all irrelevant, could an instruction that taking another's horse only tend to distract the attention of the amounted to larceny had there been evi- jury from the real issue, and, so far as obdence that at some time the defendant had

jected to, should have be excluded. taken some other person's horse. It was Of course, nothing we have said must be calculated to create prejudice against the de construed as in any way reflecting upon the fendant, by showing that he had committed defendant's guilt or innocence. That is a a crime in another matter, and to divert the question for a jury, and is one that we have minds of the jurors from the real issue in not at all considered. However guilty he the case.

may be, he is entitled to a trial in accord11. In regard to the fourteenth instruction ance with the rules of law; and, as we find concerning reasonable doubt, in view of the that in some respects he has not had this, fact that the case must be retried, it is only the judgment must be reversed. Judgment necessary to call attention to what was said reversed, and cause remanded for a new by this court in State v. Potts, 20 Nev. 389, trial. 399, 22 Pac. 754, concerning the advisability of adhering strictly to the statutory defini- BONNIFIELD and BELKNAP, JJ., tion.

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