State v. Crozier

By the Court, Hawley, C. J.: Appellant was convicted of murder in the first degree. 1. It is claimed that section 335 of the criminal practice act, which allows peremptory challenges to be interposed in criminal cases, was repealed by the act of March 2,1875, and it is therefore argued that the court erred in allowing peremptory challenges to be taken by the state. This position is wholly untenable. It was distinctly announced in The State v. McClear (11 Nev. 39), that the effect of declaring the act of March 2, 1875, void, in so far as it provided a mode of impaneling a jury, was to leave in full force the sections of the law of 1861 which the act of 1875 attempted to repeal. It is true there are some authorities which hold that, where the repealing clause in an unconstitutional statute repeals all inconsistent acts, the repealing clause is to stand [305] and have effect, notwithstanding the invalidity of the rest. But the great weight of authority is “that such repealing clause is to bo understood as designed to repeal all conflicting provisions, in order that those of the new statute can have effect; and that, if the statute is invalid, nothing can conflict with it, and therefore nothing is repealed.’* (Cooley’s Const. Lim. 186, and authorities cited in Note 2.) When any part of a statute is declared unconstitutional, such part is to be regarded as having never, at any time, been possessed of any legal force. We again repeat, that as that part of the act of 1875 providing a mode for impaneling a jury was declared unconstitutional in the State v. McClear, the effect of that decision was to leave in full force all prior existing laws regulating the mode of impaneling juries which said act attem pted to repeal. 2. The first instruction of the court, that “No provocation can justify or excuse homicide, but may reduce the offense to manslaughter,” etc., is copied from State v. Raymond (11 Nev. 98), and was there held to be correct. 3. The point urged by counsel that the defendant could not be found guilty of murder in the first degree because the indictment does not contain the words “deliberately and premeditatedly,” in addition to the words “ unlawfully, feloniously, willfully and of his malice aforethought,” was carefully considered and fully answered in State v. Huff, recently decided by this court, and the opinion in that case renders it unnecessary for us to again review the authorities. The indictment in this case is drawn in the approved form of the common law, and we have always held such indictments to be sufficient. (State v. Raymond, 11 Nev. 98; State v. Larkin, 11 Nev. 314.) 4. The testimony in this case, iu our judgment, fully warrants the verdict found by the jury. We have repeatedly declared that a verdict in a criminal case will not be reversed where there is any evidence to support it. The appeal in this case is utterly devoid of merit. The judgment and order overruling defendant’s motion for a new trial are affirmed, and the district court is directed to fix a day for carrying its sentence into execution.