solely to the jury, under the instructions of the 3. HOMICIDE ➡228 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: "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 addition to noticing his manner and the probability of his statements taken in connection with the evidence in the cause, you should consider his relation and situation under which he gives his testimony, the consequences to him relating from the results of this trial, and all the inducements and temptation which would ordinarily influence a person in his situation. You should carefully determine the amount of credibility to which his evidence is entitled; if convincing, and carrying with it a belief in its truth, act upon it; if not, you have a right to 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. DENCE. In a trial for murder, evidence held sufficient to establish the corpus delicti. [Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 471-476; Dec. Dig. 228.] 4. CRIMINAL LAW 1170%-WITNESSES REFRESHING MEMORY-HARMLESS ERROR. Where, on a murder trial, a witness was allowed to refresh his memory as to a state 5. CRIMINAL LAW 706-JOINT PRINCIPAL DUCT. Where, on a murder trial, a principal with accused in the murder, who had been previously convicted and sentenced to death, was produced as a witness by the state, and during the early part of his examination counsel for accused had asked the state in the jury's presence whether it was admitted that witness was then under conviction of a felony and in the state's prison, it was misconduct for the state's counsel to ask the witness whether he was not then in the penitentiary under sentence of death, where the only object of the state's question was to influence the jury to assess the death penalty against accused. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. 706.] 6. CRIMINAL LAW 1170%-JOINT PRINCIPAL-CONVICTION-DEATH PENALTY-TESTI MONY. On a trial for murder, where a joint principal in the crime with accused who had been previously convicted and sentenced to death is called as a witness by the state, it is reversiinfluencing the jury to inflict the death penalty ble error to allow the state, for the purpose of on accused, to ask the witness if he is in the state's prison under sentence of death. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. 11702.] 7. CRIMINAL LAW 508-COMPETENCY-CONVICTS-JOINT PRINCIPAL. 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, defining witnesses, and Rev. Laws, § 7451, applying section 5419 to criminal actions. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. 508; Witnesses, Cent. Dig. §§ 244-248.] 8. CRIMINAL LAW 1186-EXAMINATION OF WITNESS-REMARK OF TRIAL COURT-HARMLESS ERROR. Where, on a murder trial, the testimony of a witness went solely to the identity of accused, and his participation in the crime had been 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," there being no substantial conflict between the two testimonies, was harmless error under the statute providing for the disregard of technical errors, where no substantial rights are denied. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. 1186.] 9. WITNESSES 286- REDIRECT EXAMINA- of the court's discretion to allow the state on [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. which is in line with the views expressed in Ex parte Tramner, supra. [2] It is next urged that the evidence fails to establish the corpus delicti. In the case 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 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. | wife, Maria D. Quilici; that Eugene 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. 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. Mr. Lommori, [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 "Q. Did you know Maria D. Quilici in her question here involved was before the court lifetime? A. Yes, sir. Q. What relationship, in Ex parte Tramner, 35 Nev. 56, 126 Pac.lici? A. She was my sister. Q. Where did she if any, existed between you and Maria D. Qui337, 41 L. R. A. (N. S.) 1095, where the ques- live? A. At Imlay. tion was decided adversely to appellant's con- you realize the fact that the defendant Frank tention. Suffice it to say that we have care- Tranmer or J. Frank Tranmer is being tried fully considered the point urged by appellant, for the murder of your sister, do you? A. Yes, sir. * Q. Was your sister married? A. and we think that the holding of the court in Yes, sir. Q. To whom? A. To Eugene Quilici. Ex parte Tramner, supra, is sustained by Q. I will ask you if you were a witness at the both reason and authority, and that no good coroner's inquest over the body of your sister, Mrs. Quilici? A. Yes sir." 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, On cross-examination, the witness testified, in part, as follows: "Mr. Frame (counsel for defendant): Q. You testified in that preliminary, a short time after 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 P.-8 rence in which your sister was killed allowed, as it is held that the practice is in violation of the rule that a memorandum to refresh the memory should have been made at or about the time to which it relates"-citing authorities. Since the killing was on January 6th, and the coroner's inquest three days later, it 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 reversal the action of the district attorney in asking the following question: "Mr. Callahan: Q. I will ask you to state, Mr. Urie, if you are not now in the penitentiary 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, Upon objection being made, it was sus1911, and that he attended the coroner's in- tained, and the jury was directed by the quest 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? A. He said that was a bright trick and he ought to 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." "Mr. Callahan: I suppose it is admitted that this witness is now under conviction of a felony and is in the state's prison?" There is in our judgment nothing in the preliminary question or suggestion made by counsel for the defendant, "I suppose it is admitted that this witness is now under conviction of a felony and is in the state's prison?" which sustains the position of counsel 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 counsel for defendant either to request the opposing counsel to admit the fact, or to 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. A. I told him I had lost my mask, and he say: 'You are a pretty son of a I ought to plug you right here.'" 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 was a codefendant of the defendant Tranmer. While we will hold that the objection to the competency of the witness Urie is without merit, the objection was anything but one of a frivolous character, as suggested in respondent's brief on appeal. The question has never before been raised in the courts of this state, and there are but few cases directly in point. A consideration of the following cases where the question has been considered will be sufficient answer to the charge that the objection of counsel for defendant was "frivolous": People v. Labra, 5 Cal. 183; People v. Newberry, 20 Cal. 440; Ex parte Stice, 70 Cal. 55, 11 Pac. 459; McGinness v. State, 4 Wyo. 115, 31 Pac. 978, 53 Pac. 492. Independent of the question of the com 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 purpose of affecting his credibility as a witness. This right counsel for the state were unquestionably aware of. The record contains the following statement made by assistant counsel for the state: "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." [6] From a reading of the record we are impressed that the purpose of the question 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 Quilici, and that from the judgment in that case no appeal had been taken. There was no purpose sought to be accomplished, or which could be accomplished, by the trial of the defendant Tranmer for the murder of Maria Quilici, except to obtain, if possible, a conviction of first degree murder, with the death penalty imposed. There was, however, no duty imposed upon counsel representing the state to bring before the jury facts clearly incompetent for the purpose of influencing the jury in fixing the penalty 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 view of this testimony, it is hard to conceive in persuading the jury to impose the death penalty upon Tranmer than the fact that another jury had imposed the death penalty upon Urie, who might under the evidence have been regarded as morally, if not legally, less guilty than Tranmer. 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 and because the jury was promptly instruced "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: "It is not claimed that the offered testimony was relevant or material on the issue of either much as the jury had the right to assess the guilt or degree of crime, but simply that, inaspunishment in the event of conviction at either death or life imprisonment, appellant was entievidence as to matters not otherwise relevant or tled to have admitted for their consideration material. We are of the opinion that our law does not contemplate any such independent inquiry on a trial for murder, and that the determination of the jury, under the provisions of section 190, Penal Code, as to death or life imprisonment, is necessarily to be based solely on such evidence as is admissible on the issues made by the indictment or information and the plea of the defendant." 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 witnesses." This court, in an opinion written by Mr. Chief Justice Beatty, in State v. Foley, 15 Nev. at page 73, 37 Am. Rep. 458, said: "It may be that the tendency of enlightened opinion and of recent legislation in other states and countries is against the rule which absolutely excludes the testimony of a convict; it may be that it is an unwise and impolitic rule; but it is unquestionably the law of this state. Not only is the common law unaltered by statute in this particular, but in civil practice it is expressly reaffirmed. Comp. L. 1441. This shows that the Legislature approves the policy of the common-law rule, and we cannot hold that it is less essential in criminal than in civil cases; we feel bound, on the contrary, to maintain it as strictly in one class of cases as in the other." This opinion was rendered in 1880. It is significant that at the next session of the Legislature, in 1881, the section quoted was repealed. It is provided by section 5419, Revised Laws, that: "All persons, without exception, otherwise than as specified in this chapter, who, having organs of sense, can perceive, and perceiving can make known their perceptions to others, may be witnesses in any action or proceeding in any court of this state. Facts which, by the common law, would cause the exclusion of witnesses, may still be shown for the purpose of affecting their credibility." ing his credibility. We are of the opinion that the court did not err by its ruling. [8] Counsel for defendant, during the cross-examination of the witness Lommori, for the purpose of impeaching him by showing that he had testified contrary to the testimony which he gave upon direct examination, read certain questions propounded to him and answers given by him at a former trial, and asked him if he gave such testimony. During the reading of the former testimony, the presiding judge made the remark: "As far as you have gone and read the testimony into the record, there are apparently no inconsistencies or contradictions." This remark by the court is assigned as error. The Attorney General concedes that it was error for the court to make the remark, but claims that it was harmless. We have read the testimony of the witness Lommori with great care, and are unable to see that there is any substantial conflict between his testimony given on the trial and the testimony given at the previous hearing. This being true, it would seem that the remark of the court was without prejudice. Furthermore, the point on which it was sought to impeach this witness went solely to the question of the identity of the defendant; that is, of connecting him with the crime. To our mind his participation in the crime is clearly shown; there can be no doubt about it. Consequently, it would seem that in any event the remark was harmless. Mr. Chief Justice Talbot, in State v. Mircovich, 35 Nev. at page 490, 130 Pac. at page 766, called attention to our statute, which provides that the court shall disregard technical errors where no substantial rights are denied, and said: There is no provision in the chapter prohibiting persons charged with, or convicted of, a crime, from being called as witnesses. The section just quoted is made applicable to criminal as well as civil actions by section 7451, Revised Laws. In the case of Burgess v. Helm, 24 Nev. 242, 51 Pac. 1025, Mr. Justice Bonnifield, in commenting upon section 5419, Revised Laws, supra, said: "The evident object the Legislature had in view in enacting the above provisions was to abrogate the general common-law rule which rendered incompetent, as witnesses, in an action or proceeding, the parties thereto or persons having a direct interest in its results, except, as provided in certain subsequent sections, among murder and other cases, and refused to set aside "This court has often applied this statute in which is section 379, which declares 'that no person shall be allowed to testify, when the oth-convictions or remand actions for new trials for er party to the transaction is dead, or when the errors which did not affect the substantial rights opposite party to the action or person for whose of the accused.” immediate benefit the action or proceeding is prosecuted or defended is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased per sons. We do not see how the Legislature could have used more significant language. What was the intention of the Legislature in making the section in question applicable to criminal cases? This was the first section in chapter 1 of title 11 (page 405) of Compiled Laws of 1873, and section 1441, supra, was the fifth section of that chapter. When the attention of the Legislature was called to section 1441, supra, by the opinion of Mr. Chief Justice Beatty, it was promptly repealed; and, in view of the action of the Legislature in repealing it, we must conclude that the Legislature meant exactly what it said, that "all persons, without exception," should be competent witnesses, and that facts which, at common law, would disqualify a witness, might be considered as affect The witness Urie, at the time of the trial in the district court, was under sentence of death for the murder of Mrs. Quilici. On cross-examination, counsel for the defendant inquired of this witness if he had talked with the officers of Humboldt county, including the district attorney, and he said he had. Upon the completion of the crossexamination, the following questions were asked by the district attorney and answers given by the witness: “Q. I call your attention to last Sunday evening, and ask you to state whether you had a conversation with Mr. Woodburn and myself, here in the county jail. A. Yes, sir; I don't remember what evening it was. Q. Who else was present at that time? A. Mr. Burke. Q. A. Yes, there was a deputy, I guess; I don't The sheriff? A. The sheriff. Q. Any one else? know his name. Q. I will ask you to state whether or not at the time you were distinctly informed that there would be no consideration of any kind extended to you for testifying in this case. Mr. Frame: I object to the question as incompetent, irrelevant, and immaterial, and |