State v. Roderigas

By the Court, Lewis, C. J.: The defendant was indicted under Section 47 of the criminal code for “ an assault with intent to commit murder,” convicted and sentenced to the State prison for the term of seven years. Motion for new trial was regularly, made and denied, and an appeal is now taken, several assignments of error being relied on for a reversal of the verdict and judgment. First, it is argued that the indictment is defective, in that it does not show that it was^ound by a grand jury having the proper authority. To this point it is sufficient to answer that it was not taken by demurrer or by motion at the proper time, and therefore under our statute cannot afterwards be raised. Section 275 of the criminal code of procedure, among other things, declares that “ The indictment shall be set aside by the court in which the defendant is arraigned and upon his motion, in either of the following cases: First, where it is not found indorsed and presented as prescribed by this act” ; and Section 277 provides that “ If the motion to set aside the indictment be not made, the defendant shall be precluded from afterwards taking the objection mentioned.” No motion for this purpose was made in this case. Again, Section 286 declares that “ The defendant may demur to the indictment when it shall appear upon the face thereof — first, that the grand jury by which it was found had no legal authority to inquire into the offense charged, by reason of its not being within the local jurisdiction of the court.” Section 287 makes it incumbent on the defendant to distinctly state the grounds of objection to the indictment, else they shall be disregarded ; and Section 294 declares that “ Where the objections mentioned in Section 286 appear upon the face of the indictment, they can only be taken advantage of by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or that the facts stated do not constitute a public offense, may be taken at the trial under the plea of not guilty, and in arrest of judgment.” Thus, it will be observed the objection, to the indictment that it does not show that it was found by a grand jury having authority to find-it, and all objections of as imilar character, [334] can only be raised by motion or a demurrer specifically designating the objection. In this case no such demurrer was interposed. The demurrer filed was general, making only the point that the facts charged did not constitute a public offense. So all questions as to' the failure of the indictment to show the authority of the grand jury were waived, and cannot now be raised. Does the indictment charge facts sufficient to constitute the crime of which defendant was convicted ? Clearly so. The statute defines the offense as “ an assault with intent to commit murder.” The very language of the .law is employed in defining the crime, and the particular facts showing the manper in which it was committed are quite fully set out. It is alleged, among other things, that the defendant made an assault upon and shot Benjamin Elsworth with a gun, with the intent him, the said Benjamin Elsworth, then and there feloniously, willfully and with malice aforethought, to murder. That murder is a conclusion of law can make no difference here ; for an assault with the intent to commit that crime, whether it be a conclusion of law or not, is made a crime by the statute, and the allegation is therefore sufficient. An allegation that an assault was made with intent to commit any other act or offense, would certainly not make the indictment sufficient under this particular clause of the statute; that is, it would not be an assault with intent to commit murder, which is the statutory offense. Nor was it necessary to allege that the person assaulted was in any wise injured. An assault is alleged, and that is sufficient, without an allegation showing a battery or injury of any kind. See State v. O’Flaherty, ante, 153. The objection to the panel of trial jurors is not sustained by any facts in the record. There is no showing that the irregularity complained of really occurred. The statement in the bill of exceptions is not a showing of the facts upon which the objection or exception was based. If it were thought desirable to make the point that the jury was irregularly drawn and impanneled, the facts showing the irregularity should be distinctly stated; whereas, the judge, in signing the bill of exceptions, which is supposed to raise this point, expressly states that the facts upon which the legal points were based were not correct, or rather were not as assumed by counsel. 'Hence [335] there is no showing whatever in the record that there was any irregularity in the selection of the jury. Before it can be determined whether there be any irregularity or not in that respect, it is first necessary to show how the jury was in fact selected. This not. being done in this case, the legal point discussed cannot be considered. The third assignment of error is that the court erred in compelling the defendant to accept or challenge peremptorily each juror, as it was found there was no ground to challenge him for cause, defendant claiming that the law does not require, him to exercise a peremptory challenge until the panel is full. This exact point was decided against the defendant in the case of The State v. Anderson, 4 Nev. 265, and we are not now disposed to question the correctness of the AÚews there expressed. ( We see no error in the remark of the judge to the jury that it was his earnest desire that they agree quickly. It is difficult to see how such instruction or remark could possibly prejudice the defendant’s case. Although such remarks had better always be omitted, there is no intimation that they need not give the case the most deliberate and careful consideration; they might do that and still agree upon a verdict quickly. The only conclusion that the jury could draw from it was that the judge desired them to waste no time, but to come to a conclusion as speedily as a due and deliberate consideration of the matter submitted to them would admit of. The case being fully and fairly submitted in other respects, we cannot see that such a remark was error, or that it could result prejudicially to the defendant. The last ground taken for a reversal of the judgment is, that there was no evidence whatever to warrant the verdict. The testimony detailed in the record does not justify this conclusion of counsel. It is shown that Elsworth and Matias went to the house of the defendant for the purpose of getting some boards or lumber which Matias had left there, some of which had been nailed or fastened to.the cabin of the defendant. The defendant had previously informed them that they might come there and take all the boards belonging to Matias, including those attached to his cabin. Matias, it appears, was engaged in taking some of his lumber ofí the cabin, when the defendant shot Elsworth, who stood some dis [336] .tance from the cabin. Now, if it be true that the defendant gave Elsworth and Matías permission to come upon his place and take the boards, which the latter was engaged in taking from the cabin when the shooting took place, and there was no retraction of that permission, and he intended to shoot one of them, surely the defendant was clearly guilty of an assault with intent to murder. It is proven that such permission was- given, it is not shown that it was retracted; and the jury have found that the shooting was done under such circumstances as to warrant the conclusion that the defendant intended to shoot some one of the party. Under such state of facts, we as an appellate court cannot say that the evidence did not establish the crime. Judgment affirmed.