THE STATE OF NEVADA, Respondent, v. HECTOR MacKINNON, Appellant
State v. MacKinnon
THE STATE OF NEVADA, Respondent, v. HECTOR MacKINNON, Appellant.
[No. 2292]
THE STATE OF NEVADA, Respondent, v. HECTOR MacKINNON, Appellant.
[168 Pac. 330]
1. Homicide — Indictment — Requisites and Sufficiency — “Assault.”
Rev. Laws, 6412, defines an assault as an unlawful attempt, coupled with the present ability, to commit a violent injury. Section 7050 provides tliat the indictment must contain a statement of the acts constituting the offense, in ordinary language so that a person of common understanding would know what was intended. Held, that an information, alleging that accused on a certain day, “he having the abilit3 then and there so to do, did wilfully, unlawfully, and feloniously” assault another, sufficiently alleged present ability.
2. Criminal Law — Appeal—Scope—Preservation of Exceptions.
Unless an attack upon the information shows a fatal defect it will be ignored when made for the first time on appeal.
3. Criminal Law — Continuance—Grounds—Securing Counsel— Waiver.
The privilege of accused under Const, art. 1, sec. 8, to appear in person or with counsel may be waived, and, once waived, a judgment will not be reversed because the court at a later date refused to grant a continuance so that counsel might be employed unless the refusal was an abuse of discretion.
4. Criminal Law — Continuance—Grounds—Securing Counsel — • Waiver.
Where defendant when arraigned waived his right to counsel and was thereafter brought into court twice before trial and did not signify his desire for counsel until the morning of the trial more than two. weeks after the order setting the case for trial, it was not an abuse of discretion to deny his motion for continuance for the purpose of securing counsel.
5. Homicide — Instructions—Presumptions—Intention.
In prosecution for assault with a deadly weapon, instruction that the law presumes that accused intended to do that which he voluntarily and wilfully did was erroneous.
Appeal from Seventh Judicial District Court, Mineral County; Emmett J. Walsh, Judge.
Hector MacKinnon was convicted of assault with a deadly weapon, and appeals.
Reversed, and new trial ordered.
Frame & Browne, for Appellant:
The information is fatally defective, in that it does not state facts sufficient to constitute a public offense, and particularly the offense with which the defendant was sought to be charged, or the offense of which the appellant was convicted. Under the law it is required that the allegations of an information be direct and positive in regard to the facts constituting the alleged offense. The facts cannot be supplied by inference, argument or intendment. (Rev. Laws, 7050-7052; State v. Logan, 1 Nev. 110; People v. Gregg, 13 N. Y. Supp. 114; 22 Cyc. 293, 295.) The manner in which a weapon is used very often determines its character, and whether under the circumstances it is a deadly weapon. (State v. Napper, 6 Nev. 113.) The information is uncertain as to whether the particular act constituting the particular assault sought to be charged was by striking or shooting. This is not permissible in criminal pleading. (22 Cyc. 296.) The charge in an indictment should be positively laid, and not inferentially. The want of a direct allegation of anything material in the description of the substance, nature or manner of the offense, cannot be supplied by intendment or implication. (Archibald, Cr. PI. & Pr. 87.)
The information is defective in substance, in that it does not allege a present ability, because the present ability to inflict the injury is the gist of an assault, either under the statute or at common law. This contention may be raised for the first time in this court, and has not been waived by failure to raise it in the court below. (State v. Trolson, 21 Nev. 419.)
It was fundamental error for the trial court to refuse the request of appellant for a postponement of the trial in order that he might procure counsel at the time of the calling of the case. (Const. Nev., art. 1, sec. 8; State ex rel. Hujfaker v. Crosby, 24 Nev. 115; People v. Van Allen, 55 N. Y. 33.) The denial of the request was an abuse of discretion. By the action of the court every possibility of the defendant having that fair and impartial trial guaranteed by law was swept away. (Cave v. United States, 100 Pac. 1118; Clay Peters v. United States, 33 Pac. 1031; Dempsey v. United States, 44 Pac. 382; Stansbury v. United States, 37 Pac. 1083.) A legal discretion is one that is regulated and governed by well-established principles of law. (14 Cyc. 384.) An abuse of discretion is merely a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. (1 Cyc. 219.)
It was reversible error for the court to instruct the jury that the law presumes an intent to kill from the use of a deadly weapon in a manner likely to cause death. The instruction entirely removed from the consideration of the jury the circumstances of the case, invading their province as triers of the facts. (State v. Davis, 14 Nev. 407; State v. Newton, 4 Nev. 410; Reed v. United States, 103 Pac. 371; Frazier v. United States, 103 Pac. 373.)
J. H. White, District Attorney, and Geo. B. Thatcher, Attorney-General, for Respondent:
Upon the record presented, the judgment of conviction should be in all matters affirmed. It is not claimed that the information is deficient in any of the requirements of section 7052,- Revised Laws, except in the statement of "the offense charged.” The function of an information or indictment is to apprise the defendant of the nature and character of the charge made against him, and the time and place where the alleged offense was committed, so as to enable him to defend against the particular charge alleged, protect him from a subsequent prosecution on the same charge, and "to enable the court to pronounce judgment upon a conviction according to the right of the case.” It is sufficient if the information contain "a statement of the acts .constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.” (Rev. Laws, 7050; 22 Cyc. 295; Peters v. United States, 94 Fed. 127.) The indictment need be only " substantially” in the form provided by statute. (Rev. Laws, 7051; State v. Anderson, 3 Nev. 254.) "All provisions of law” applicable to prosecutions by indictment are equally applicable to prosecutions by information. (Stats. 1913, p. 294; State v. Lovelace, 29 Nev. 43.)
There is no merit in the claim that the information does not allege the commission of a public offense. It is positively alleged in the information that the assault was made with a deadly weapon, to wit, a pistol loaded with gunpowder and leaden bullets, and that it was used within striking as well as shooting distance. The allegation that the defendant, "having the ability then and there so to do, did” commit and "assault with intent to kill,” is exactly the equivalent of alleging "present ability” to commit the act charged. (State v. O’Flaherty, 7 Nev. 153.)
It is not true that appellant was denied the right to be represented by counsel, nor is it any more true that the state could be prevented from proceeding by his whims, vagaries, designs or subterfuges. Every presumption is in favor of the regularity of the proceedings in the trial court. (Rev. Laws, 7128; State v. O’ Flaherty, 7 Nev. 153.)
There was no error in the instructions. (1 Bishop, Crim. Law, 5th ed. sec. 729; State v. Daly, 41 Or. 515; 1 McClain, Crim. Law, sec. 222; 12 Cyc. 148; State v. Zichfeld, 23 Nev. 304; State v. Marks, 15 Nev. 33; People v. Devine, 59 Cal. 630; State v. Rodriguez, 31 Nev. 342; State v. Thompson, 31 Nev. 209; State v. Clark, 32 Nev. 150; State v. O’Connor, 11 Nev. 416, 423.)
By the Court,
Coleman, J.:
The defendant was convicted of an assault with a deadly weapon, and from the judgment of the court he appeals.
The first ground urged for a reversal of the judgment is that the information is fatally defective, in that it fails to allege that the defendant had the present ability to make an assault upon the person named in the information. Our statute defines an assault as:
"An unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Rev. Laws, 6412.)
Section 7050, Revised Laws, 1912, reads:
"The indictment must contain the title of the action, specifying the name of the court to which the indictment is presented and the names of the parties, and a statement of the acts constituting the offense, in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended."
The information in the case at bar charges:
"The said Hector MacKinnon, on the 7th day of December, 1916, or thereabouts, and before the filing of this information, in the county of Mineral, State of Nevada, he having the ability then and there so to do, did, wilfully, unlawfully, and feloniously, and without authority of law, with a deadly weapon, to wit, a pistol loaded with gunpowder and leaden bullets, which he, the said Hector MacKinnon, in his hand there and then had and held, assault one B. B. Shepherd, a human being, by shooting at and striking him, the said B. B. Shepherd, with the intent him, the said B. B. Shepherd, then and there to kill."
We do not understand that it is necessary that the information should allege defendant's present ability to make the assault in those words,, but in words which convey the same meaning. Section 7050, Revised Laws, states that an offense may be charged in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. We are unable to see how any person, of the least understanding could fail to grasp what was meant by the language of the information. It certainly shows that the defendant had the present ability to make the assault. The draftsman of the information, not being content with the language "he having the ability then and there so to do," also charged that the defendant, with a pistol loaded with gunpowder and leaden bullets, "in his hand there and then had and held," made the assault. We are unable to see just how a stronger allegation of present ability could have been made. Furthermore, courts do not look upon attacks of this character upon an information with the same favor when made for the first time on appeal as when made before a plea is entered. (Ex Parte BrecJcenridge, 34 Nev. 275, 118 Pac. 688, Ann. Cas. 1914b, 871), and when made for the first time on appeal, they will be ignored unless the information is fatally defective.
It is also urged that the court erred in denying defendant's application for a continuance on the morning when the case was called for trial, to enable him to employ an attorney. When defendant was arraigned he waived his right to counsel, and though he was thereafter brought into court on two occasions before the day. of trial — once when he entered his plea of not guilty, and again when the case was set for trial — he did not signify his desire for counsel until the morning of the trial, more than two weeks -after the order setting the case for trial had been made. At the time the case was called for trial, and when all of the witnesses and jurors were in attendance for the trial, and after a preliminary order had been entered in the case, but before any of the jurors had been called into the jury box, the defendant asked that the case be continued until the following day to enable him to employ counsel. The court denied the application and proceeded with the trial. It is insisted that by its action the court denied defendant a constitutional right guaranteed him by section 8, article 1, Constitution of Nevada, which provides that:
" The party accused shall be allowed to appear and defend in person, and with counsel, as in civil actions."
The purpose of this provision in our constitution is simply to guarantee to one charged with crime the privilege of being defended by counsel. It is a privilege which he may exercise or waive. If he waives it at one stage of the proceeding, he must act with a reasonable degree of diligence if he later desires to avail himself of it. In other words, having once waived this privilege, a judgment will not be reversed because the court at a later date refused to grant a continuance so that counsel might be employed, unless the court abused its discretion. In the case of State v. Yoes, 67 W. Va. 546, 68 S. E. 181, 140 Am. St. Rep. 978, the court said:
"The provision of the constitution, relating to the right of a prisoner to have the assistance of counsel, was inserted for the purpose of abrogating the common-law practice under which prisoners, accused of felony, were denied such right, and to restrain the legislature from denying it by statute. It diifers in nature as well as form from the guaranty of trial by jury. The latter is prohibitory in form, while the other is permissive, and conditional upon the pleasure of the accused."
Under the circumstances of this case, we are of the opinion that there was no abuse of discretion on the part of the court in refusing to grant a continuance. To hold otherwise would put it in the power of persons charged with crime to materially hamper courts. Public policy will not justify such action. The defendant had ample opportunity to engage counsel, and his failure to do so was due to his own neglect.
It is also urged that the court erred in giving the following instruction:
"The court instructs the jury that a person must be presumed to intend to do that which he voluntarily and wilfully does in fact do, and he must be presumed to intend all the necessary, probable, and usual consequences of his own acts, and the jury are instructed that if they find that the defendant, Hector MacKinnon, did assault the person named in the information, to wit, B. B. Shepherd, with a deadly weapon, a loaded automatic pistol, in such a manner as was calculated to produce the death of the said B. B. Shepherd, the law presumes that such was the defendant's intention, and throws upon him the burden of showing facts in justification or excuse." ' •
It is the contention of counsel that that portion of the instruction which states that "the law presumes" the intention of the defendant, is erroneous and prejudicial. This identical question was before us in the case of State v. Pappas, 89 Nev. 40, 152 Pac. 571, where we held it was reversible error to so instruct the jury. No suggestion has been made that the ruling in that case is not sound, and we know of no reason for repudiating it. It controls in the case at bar. For the error committed in giving this instruction, it is ordered that the judgment be reversed, and that a new trial be granted the defendant.