State v. Harkin.

By the Court, GARBER, J.:

The appellant was convicted of murder in the second degree, on an indictment accusing him of the crime of murder, committed as follows: "That said Daniel E. Harkin, of the county of Douglas, State of Nevada, on the ninth day of November, A. D. 1871, or thereabouts, at Genoa, county of Douglas, State of Nevada, without authority of law, feloniously, willfully, and with malice aforethought to kill William Hardwick, did, with his hands and feet, strike, beat and kick the said William Hardwick in and upon the head, neck, breast and body; then and there, by said beating, striking and kicking, giving unto said William Hardwick several mortal strokes, wounds and bruises, in and upon the head, neck, breast and body of him, said William Hardwick; from which said several mortal strokes, wounds and bruises, given as aforesaid by said Daniel E. Harkin, he, said William Hardwick, died, on the fourteenth day of November, A. D. 1871, at Genoa, in the county of Douglas, State of Nevada."

The defendant demurred, on the ground that the facts stated do not constitute a public offense, as known to our statutes. The demurrer was overruled. On the trial, the prosecution contended that the death resulted from a kick inflicted on the breast of deceased, and introduced testimony tending to show that the defendant knocked the deceased down and kicked him on the face, and also on the breast. The defendant contended that deceased was not kicked on the breast, and that the wound or bruise on the breast resulted from a fall, which, it was testified, happened the day before the affray. The testimony tending to establish the fact of the kicking on the face was much stronger and more positive than that going to show a kicking on the breast. The prosecution was allowed-and properly allowed-against the objection of the defendant, to prove by physicians that they detected signs of bruises or ecchymosis on the breast. The point of the objection was, that the state had not shown that any wound or bruise had been inflicted upon the breast of the deceased by the defendant. In overruling this objection, the judge remarked, in the presence and hearing of the jury, "that there was as much testimony that

State v. Harkin.

6

defendant had kicked deceased upon the chest, as upon the face." To the use of this language in the hearing of the jury, the defendant then objected. The record further shows, that "after all the testimony was in, and just before the commencement of the argument, the court remarked as follows: Upon suggestion of counsel for the defendant, and in order that, beyond any peradventure, the jury may have no misunderstanding as to the words or meaning of the court, when, in ruling upon an objection to certain testimony, the court said that there is as much testimony that the defendant kicked deceased upon the breast as upon the face, or used words to that effect, the court wishes to say that it was simply ruling upon the objection as it was made, and the question was as to the competency of the testimony objected to. The testimony was allowed, and the objection was overruled. This court does not wish to be understood as saying how much or how little testimony there is upon any particular point. The whole matter is for the jury to pass upon, and they will observe for themselves what the testimony is'; and that the above remarks were not delivered direct to the jury, as though the court were delivering an oral charge to them, but the court spoke and acted more directly to counsel for defendant, precisely as when making the ruling upon the point in which the alleged objectionable words were used.

"Nothing was then said further, and the argument then commenced."

Had the language objected to occurred in the written instructions given to the jury, the use of it would, beyond question, have constituted such manifest error as to entitle the defendant to a new trial. The wit of man could scarcely devise a more palpable violation of that provision of our organic and statute law, which prohibits judges from charging juries in respect to matters of fact. "The great object of this provision is to prevent the judge from interfering with the province of juries by any statement of his own judgment or conclusion upon matters of fact; to guard against any bias or undue influence which might be created in the minds of jurors, if the weight of the opinion of the court should be permitted to be thrown into the scale, in deciding upon issues of fact." Allen, 279.

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State v. Harkin.

It is evident that the opinion of the court can be as effectively conveyed to the jury by expressing it in their hearing while ruling upon an objection to evidence, as by embodying it in what purports to be a declaration of the law for their instruction. Accordinglyand we think correctly-it has been held, that the judge has no more right to volunteer, before the jury, his opinion upon a material fact in controversy, while deciding a question of law on the trial, than he has to charge the jury in respect to such fact. 27 Cal. 319; 2 Winston, 47. The right to a decision on the facts, by a jury uninfluenced and unbiassed by the opinion of the judge, has been deemed worthy of a constitutional guarantee. It cannot be lawfully denied, by the simple evasion of looking at the counsel instead of at the jury, or of foisting the opinion into a ruling upon testimony.

The opinion here expressed was entirely uncalled for. It was not necessary, in order to explain the ruling, to say anything about the relative weight of the testimony. It was enough that there was testimony sufficient in law to authorize the jury to infer from it the fact that the deceased sustained the injury in question at the hands of the defendant. 6 Nev. 349-350. The necessity imposed upon the court of deciding the question of law whether there was any evidence from which the jury could draw a certain inference, afforded no pretext for the announcement of an opinion on the question of fact as to the weight of such evidence, as compared with other testimony in the case.

The error, if curable, was not cured by the remarks made at the close of the testimony. At best, they left the matter where it was before. There was no retraction of the opinion that the testimony tending to prove the two facts referred to was equiponderant; but merely a disclaimer of any opinion as to the absolute weight of such testimony. As we held in State v. Ah Tong, ante, the express statement that the whole matter was for the jury to pass upon was insufficient to obviate the effect of the opinion previously expressed.

Moreover, it is difficult to give to these remarks any pertinency whatever, without regarding them as an oral instruction to the jury; and, so considered, the fact that they were not reduced to writing

State v. Harkin.

would constitute, of itself, ample ground for a reversal. People v. Bonds, 1 Nev. 33; People v. Ah Tong, 12 Cal. 346.

Of course, we impute no want of fairness or impartiality to the learned judge before whom this case was tried. Such inadvertence as this evidently was will sometimes occur in the hurry of a trial, with whatever purity and ability justice is administered. But when it does occur, the injury to the defendant demands redress as imperatively in the case of a mere inadvertence, as in case of a willful evasion of the law; and, we think, it is shown that to tolerate the former would necessarily result in giving free scope to the latter.

The demurrer to the indictment was properly overruled. Rejecting as surplusage the words "to kill William Hardwick," an indictment good on general demurrer remains. 17 Cal. 169. These words may be disregarded as though they were struck from the indictment. 1 Bishop's Crim. Prac., § 231. It will then charge all the elements of, or facts necessary to constitute the crime of murder as defined in our statute, viz: that at a time mentioned, at a place within the jurisdiction of the court, the defendant did unlawfully kill the deceased with malice aforethought. People v. Cronin, 34 Cal. 209; Newcomb v. The State, 37 Miss. 396; State v. Verrill, 54 Maine, 408. It is urged that the killing is not charged in positive and direct terms, but only argumentatively and by inference. We are inclined to think that if this objection had been distinctly specified in the demurrer, it should have been sustained. But, if the statement that A struck B, thereby giving him a mortal wound, of which he died, be only an argument that A killed B, it is certainly an infallible argument. The defectiveness, if any, of such a pleading is not in the matter pleaded, but in the manner of pleading it. The point of the objection is that the indictment is not direct not that the facts stated do not constitute a public offense. Therefore, although not direct, but only argumentative, the indictment is aided on general demurrer. Stats. 1861, 465, Secs. 286287; Gould's Pleadings, Ch. 3, Secs. 28-30.

Nothing is gained, however, by a departure from approved precedents and forms. In this case, for instance, days of labor spent in investigating and arguing the sufficiency of the indictment would

Ferguson v. Rutherford.

have been saved by the insertion of the usual and formal allegation of an assault in lieu of the words italicized, and the addition of the clause" and so the jurors aforesaid, etc., do say that the said Daniel E. Harkin him, the said William Hardwick, in manner and form aforesaid, feloniously, willfully, unlawfully and of his malice aforethought, did kill and murder, etc.,”—annexing (either expressly or by proper copulatives) the epithets unlawfully, with malice aforethought, etc., to every act set forth as a constituent of the offense. The judgment and the order refusing a new trial are reversed, and the cause remanded for a new trial.

By WHITMAN, J.:

I concur in the judgment upon the reasoning of Justice Garber. Upon the other point discussed, I express no opinion.

SAMUEL B. FERGUSON, RESPONDENT, v. A. H. RUTHERFORD ET ALS., APPELLANTS.

DENIAL OF RIGHT OF PROPER CROSS-EXAMINATION ERROR. Where on the trial of an action of assumpsit for work and labor, in which defendant pleaded a general denial and a special contract which had not been complied with, plaintiff testified as a witness on his own behalf to a contract different from that claimed by defendant, and to the performance of the work and labor and its value; whereupon defendant claimed the right to show, by cross-examination of plaintiff, the existence and terms of the special contract as he claimed it, which was denied on the ground that it was not proper cross-examination : Held, error.

PROVINCE OF CROSS-EXAMINATION.

A defendant cannot on cross-examination of plaintiff draw out proof of "new matter", but he may properly elicit all such particular facts as can tend to disprove the essential or ultimate facts in the plaintiff's case, which the direct examination tended to prove.

"NEW MATTER" IN ACTION ON CONTRACT. As "new matter" is matter in confession and avoidance, such as cannot be introduced in evidence under an answer simply denying the allegations of the complaint, it follows that in an action on a contract it is not proving new matter for the defendant to show that there are other terms in the contract relied on besides those shown by plaintiff, whether such proof be calculated to defeat the action or only to reduce the damages.