fendant, the defendant may demur thereto upon that ground, and where the petition does not disclose that fact the objection may be taken by answer; but, if no objection is taken either by demurrer or answer, the defendant is deemed to have waived the same. Civ. Code, § 91; Railway Co. v. Nichols, 9 Kan. 248; Parker v. Wiggins, 10 Kan. 420; Gilmore v. Norton, Id. 491; Seip v. Tilghman, 23 Kan. 291. There is a further contention that the cause is barred by the statute of limitations, which provides that an action for relief on the ground of fraud must be brought within two years after it accrues. The judgment was obtained, as we have seen, in June, 1885, and this action was not brought until January 26, 1889. Laying aside the fact that the execution was not issued upon the judgment until 1887, it still appears that the cause is not barred. An action upon the same judgment was brought against the defendant by John C. Tomlinson, as receiver of the bridge company, in March, 1888, and that action remained pending until about the time the present action was begun, when it was dismissed without prejudice, the receiver having been discharged. As Tomlinson was appointed receiver of all the property of the bridge company, and was authorized to collect all claims and demands due to the company, he was a proper party to bring the suit, and hence the statute did not run during the pendency of that action. It is true that about two years and ten months elapsed between the rendition of the judgment which is the basis of this action and the time when the action was brought by the receiver, but it is agreed that between June 25, 1885, and June 25, 1888, George Fowler was absent from the state one year, and therefore the bar was not complete. It is finally urged in support of the judgment that this action cannot be maintained upon the judgment of the circuit court of the United States. We think the judgment of the federal court for the district of Kansas cannot be regarded as that of a foreign court. While there is some diversity of judicial opinion upon this question, there can be little doubt that it was the intention of the legislature of Kansas to put the judgments of the circuit court rendered within this state upon an equal footing with the judgments of courts of record of the state. Under section 419 of the Civil Code it is provided that "judgments of courts of record of this state, and of courts of the United States rendered within this state, are liens upon the real estate of the debtor, within the county within which judgment is rendered." See, also, Ballin v. Loeb, 78 Wis. 404, 47 N. W. 516; Bullit v. Taylor, 34 Miss. 708; Embry v. Palmer, 107 U. S. 10, 2 Sup. Ct. 25; Crescent City Live-Stock Co. v. Butchers' Union Slaughter House Co., 120 U. S. 141, 7 Sup. Ct. 472; Merchants' Nat. Bank v. Chattanooga Construction Co., 53 Fed. 314. The judgment of the district court will be reversed, and cause remanded, with the di

rection to enter judgment in favor of the Chicago & Atchison Bridge Company against the executor and trustees of the estate of deceased for the sum of $4,900, with interest from November 15, 1889. All the justices concurring.

(22 Nev. 285)

STATE v. VAUGHAN. (No. 1,416.) (Supreme Court of Nevada. March 20, 1895.) HOMICIDE-CHALLENGES OF JURORS - DYING DECLARATIONS-SELF-DEFENSE-CHARACTER OF DE

CEASED THREATS-MALICE-INSTRUCTIONS.

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 selfdefense, 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. (Syllabus by the Court.)

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

Alpheus Vaughan was convicted 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. TheVaughans 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 brother 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 unprovoked murder by the defendant, and that upon the part of the defendant that the Litsters 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 rulings 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 Pac. 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, in fact, did die before his arrival. This evidence was uncontradicted, 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 latter part of this answer, presumably the part stating 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 Litster 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, stricken out. While the practice of admitting testimony without objection, and then moving to strike it out, is one not to be commended, particularly when done by the state in a criminal case, where about the only effect of striking it out is the additional chance of making an error, we do not think that the court erred in the ruling here. Evidence of collateral matters should only be admitted when it has some tendency to throw light upon the circumstances surrounding the killing. This is the principle upon which threats, previous attacks, etc., made by deceased upon the defendant, are admitted. Ordinarily, assaults made upon a third person by deceased could only bear upon his general character or disposition, and as to that it is only evidence of general reputation, and not of particular actions, that is admissible. We do not think the evidence shows such a feeling by deceased against Charles and Frank Vaughan and the defendant jointly as should alter this rule.

6. The prosecution was permitted in rebuttal, over the defendant's objections, to introduce testimony to prove that the character of deceased for peace and quietness was good. It is argued that this was error, because his character had not been attacked. But there may be such attacks made as will authorize the admission of evidence of good character without any witness having testified directly that the reputation of the attacked party was bad, and that seems to be the case here. The defendant, and others in his behalf, had testified to many facts tending to show that the deceased possessed a quarrelsome, turbulent, and violent disposition; that he was in the habit of using very bad language towards the de

fendant and his family; that he had frequently made threats against them, including defendant; that upon one occasion he had wantonly shot at him, and at the time of the homicide was making a murderous assault upon him. We think this was equivalent to proving his character as a quarrelsome, turbulent, and violent boy, and fully justified the admission of the evidence of good character in rebuttal. Davis v. People, 114 Ill. 86, 95, 29 N. E. 192; Bowlus v. State, 130 Ind. 237, 28 N. E. 1115; Fields v. State, 134 Ind. 46, 32 N. E. 780; Russell v. State, 11 Tex. App. 296; Everett v. State (Tex. Cr. App.) 24 S. W. 505.

7. The mother of defendant testified that, the day before the homicide, she had been at a neighbor's house, and there stated, in the presence of a sister of deceased, about 10 years of age, that her sons were going to the mine the next day. No objection was made to this testimony when offered, except that the attorneys for the state stated that they reserved the right to move to strike it out if not properly connected. At the close of defendant's case, they made this motion, upon the ground that it did not appear that the girl had told her brothers of what she had heard, and the evidence was stricken out. It is now contended that this ruling was wrong, because the jury might have inferred that she had done so. But, before evidence of one fact should be admitted as presumptive evidence of another fact, there should be some usual and recognized connection between them. This does not exist here. The information may have been communicated, or it may not. There is as much probability one way as the other. At the best, the deduction would be a "mere guess," which is not permissible. 1 Greenl. Ev. (15th Ed.) § 13, note; Douglass v. Mitchell, 35 Pa. St. 440; Manning v. Insurance Co., 100 U. S. 693.

8. The "Catechism of the Christian Doctrine" was improperly admitted in evidence, but it was so entirely immaterial that it could not have influenced the verdict in any way, and consequently the error was harmless to the defendant.

9. As already stated, the defendant admitted the killing by shooting with a rifle, but claimed it had been done in self-defense. Under these circumstances, the issues before the jury were (1) whether this defense had been made out; (2) if not, of what degree of crime the defendant was guilty. It was in the power of the jury to find him guilty of murder in the first degree, murder in the second degree, or of manslaughter. It consequently became highly important that correct instructions defining the distinctions between these different degrees should be given. In the second instruction the court informed the jury that murder is the unlawful killing of a human being with malice aforethought, either express or implied, which is correct. But in the eighteenth in

struction, in attempting a definition of malice aforethought, this language was used: "The use of a dangerous weapon under a provocation by words only, or under no provocation, is always evidence of malice aforethought. To constitute malice aforethought, it is only necessary that there be a formed intention to kill. Malice aforethought means the intention to kill; and, where such means are used as are likely to produce death, the legal presumption is that death was intended." This, we think, was error. The fact that a killing was intentional does not necessarily prove that it was done with malice; for an intentional killing may be entirely justifiable, as where it is done in necessary self-defense, or it may be only manslaughter, as where it is done in the heat of passion caused by a sufficient provocation. What it is must depend upon the manner of the killing and the surrounding circumstances. The instruction was highly prejudicial to the defendant, for, if guided by the law there laid down, the jury must have reasoned thus: (1) The defendant admits the use of such means as were likely to produce death, and that did produce death; therefore, the presumption is that death was intended. (2) An intention to kill constitutes malice aforethought. (3) A killing with malice aforethought is murder. Therefore, upon the defendant's own admission, without regard to anything else, he is guilty of murder. We say without regard to anything else, because, although the law concerning self-defense and manslaughter is correctly laid down in the instructions they contain nothing, and, indeed, scarcely could contain anything to correct the error made here. In the twenty-fifth instruction the law concerning malice is correctly stated, and, as it clearly demonstrates the error of the eighteenth instruction, we quote from it: "The existence or nonexistence of malice is an inference to be drawn from all the facts in the case. If malice is found, it must be drawn as an inference from everything that is proved taken together as a whole. Every fact, no matter how small, every circumstance, no matter how trivial, which bears upon the question of malice, should be considered by the jury at the same time that they consider the use of the deadly weapon, to wit, the gun with which the defendant here admits he shot the deceased, Willie Litster; and it is only as a conclusion from all these facts and circumstances that malice is to be inferred." But, of course, the giving of a correct instruction does not cure an incorrect one, because it is impossible to determine which the jury followed. That an intention to kill does not constitute malice is well settled by the authorities. In Dennison v. State, 13 Ind. 510, the trial court had instructed the jury that, "if there be evidence of express malice-that is, a positive intention to kill— existing in the mind of the slayer at the

time of inflicting the wound, the killing is murder in the second degree." Commenting upon this, the court said: "This latter instruction contains an error which may have misled the jury. It informs them that intention to kill, existing at the commission of the act, constitutes express malice. This is entirely wrong. In justifiable homicide there is intention to kill, but not necessarily malice or premeditation. In murder in the first degree there is intention to kill, accompanied with premeditated malice, except in certain cases in which certain acts are made murder by statute. In murder in the second degree there is intention to kill, accompanied by malice, but without premeditation. In manslaughter there may be intention to kill arising from the sudden transport of passion. but it may, and must in this grade of offense, be unaccompanied by both premeditation and malice." In Trumble v. Territory, 3 Wyo. 280, 21 Pac. 1081, the following instruction was held to be erroneous: "Where the fact of killing purposely by the use of a deadly weapon is proved, malice is to be presumed, unless it appears from all the evidence in this case that the killing was without malice, or was justifiable or excusable;" the court saying: "The jury should be directed that it was their duty to decide from all the facts of the case, many or few, whether the killing was malicious." In People v. Barry, 31 Cal. 357, where the instruction was that in case of a mutual combat, "when one uses superior weapons to those possessed by the party slain, malice may be inferred, and the killing amounts to murder," the court said: "If A. should make an assault upon B. with a deadly weapon, by the use of which he might readily accomplish his manifested purpose to kill B., and the latter, having no other means of saving his own life except by killing his assailant, should in necessary self-defense, slay him, could it be seriously contended that the act done in such necessary self-defense was done with malice, and that the killing was murder, because it happened that the weapon so used in selfdefense was superior to that in the hands of the assailant? No one, we apprehend, would deliberately undertake to support such a proposition." To the same effect are People v. Freel, 48 Cal. 434; Quarles v. State, 1 Sneed, 407; Maher v. People, 10 Mich. 212; Erwin v. State, 29 Ohio St. 186; Cahn v. State (Tex. App.) 11 S. W. 723; 2 Bish. Cr. Law, §§ 645, 676, 695; Whart. Hom. 669; Stokes v. People, 53 N. Y. 164; Kent v. People, 8 Colo. 563, 9 Pac. $52.

10. The jury were also instructed that any person passing through gates in fences inclosing fields, and not shutting and fastening the same, shall be deemed guilty of a misdemeanor. While this was substantially copied from the statute, we cannot but regard it as erroneous and prejudicial to the defendant, under the circumstances existing

here. In the first place, it is, at least, doubtful whether the statute would apply to the case of a gate placed across a public road, as it appears the Vaughans claimed this to be. But, disregarding that, the instruction was upon a point that cut no legitimate figure in the case. As we have seen, the main question for the jury to decide was whether the defendant, in killing William Litster, had acted in self-defense. It was proper and necessary for them, in determining this question, to consider everything admitted in evidence that would assist in coming to a correct conclusion as to what occurred at the fence that fatal morning. That was the central point, and evidence of collateral occurrences was only material in so far as it tended to throw light upon what took place there. Did the defendant kill the deceased without cause or excuse, or did the Litsters first make such a murderous attack upon him that he was justified in killing in self-defense, as he claims? As reflecting upon this, as well as upon the question of malice, it was proper to show the state of feeling existing between the parties. There was a conflict in the testimony as to what occurred when they met. If the defendant had such feeling against the deceased as might prompt him to attack and murder him without cause, this would strengthen the case of the prosecution. On the other hand, if the feelings of the deceased towards the defendant were such as might have caused him to make the first murderous assault, its tendency would be to strengthen the defense. In showing this, evidence concerning the gates was necessarily admitted, because this was the matter, or one of the matters, about which the feeling had arisen; but the fact that, in leaving them open, the defendant had committed a misdemeanor, had no tendency to show an increase or diminution of his animosity, nor, indeed, that he had any animosity whatever. The defendant was not being tried for leaving gates open, and the instruction was no more relevant to the issue before the jury than would have been an instruction that taking another's horse amounted to larceny had there been evidence that at some time the defendant had taken some other person's horse. It was calculated to create prejudice against the defendant, by showing that he had committed a crime in another matter, and to divert the minds of the jurors from the real issue in the case.

11. In regard to the fourteenth instruction concerning reasonable doubt, in view of the fact that the case must be retried, it is only necessary to call attention to what was said by this court in State v. Potts, 20 Nev. 389, 399, 22 Pac. 754, concerning the advisability of adhering strictly to the statutory definition.

v.39p.no.7-47

This is sufficient to dispose of the appeal; but, in view of the fact that the case will have to be retried, it is proper for us to notice other rulings that, although they have not been particularly called to our attention, were, some of them at least, objected to by the defendant, and, if repeated, may be urged as error upon another appeal. As already stated, the only evidence properly admissible is that which in some manner tends to throw light upon the killing. Upon the opening, it was necessary for the state to introduce its evidence tending to establish the commission of the homicide by the defendant, and such as tended to prove that it was malicious, willful, deliberate, and premeditated. In defense, the defendant could introduce his evidence tending to show that it was done in self-defense, including such as might tend to prove that the feelings of deceased towards the defendant were such as might have caused him to begia the deadly affray, or to make the first attack. Rebuttal evidence would then be all that tended to establish that the killing was not done in self-defense. Perhaps this general statement will not assist very materially upon & retrial; but in the face of such a voluminous record, unassisted by argument upon the points, it is difficult to draw the line as to all that was properly admitted and what was not. Without attempting this, it is safe to say there was much evidence upon both sides that could have no legitimate influence upon the verdict. In our judgment, as the case is now presented, the evidence as to whether there was any other road that the Vaughans might have taken in going to their mine, whether the road up Water Cañon was good or bad, whether they had any mine, whether a team that had been driven up to the fence could be turned around without passing through the gap, whether the elder Vaughan had ever asked permission of William Litster, Sr., to pass through the fence, of the conversation between them concerning the poisoning of the dog, of what title Litster had to his ranch, was all irrelevant, could only tend to distract the attention of the jury from the real issue, and, so far as objected to, should have been excluded.

Of course, nothing we have said must be construed as in any way reflecting upon the defendant's guilt or innocence. That is a question for a jury, and is one that we have not at all considered. However guilty he may be, he is entitled to a trial in accordance with the rules of law; and, as we find that in some respects he has not had this, the judgment must be reversed. Judgment reversed, and cause remanded for a new trial.

BONNIFIELD and BELKNAP, JJ., con

cur.