STATE v. MAHER

E. T. Dupuis, for Appellant:

I. The court erred in not giving instructions Nos. 3, 4 and 16 to the jury as they were written and asked by the defendant's counsel. Each is modified by the court. But, as they appear in the record, each fail to show how and wherein they were modified, although each bear the endorsement and signature of the trial judge, to wit: "Given as modified, C. E. Mack, District Judge." This action on the part of the court was not in compliance with sections 387-388 of the criminal practice act, which says that "Each party may present to the court any written charge and request that it be given. If the court think it correct and pertinent, it shall be given; if not, it shall be refused. * * * Upon each charge so presented and given, the court shall endorse its decision and sign it. If part be given\and part refused, the court shall distinguish, showing by the endorsement what part of the charge was given and what part refused." This the court did not do, and appellant assigns it as error. These three instructions were rewritten by the trial judge, who modified them to suit his pleasure, without the consent or knowledge of the defendant's counsel; without leaving any marks or words to indicate what part was given and what part was refused or what words were added thereto.

II. Appellant assigns as error the court's action relative to instructions asked by the defendant marked Nos. 1 and 6. The record shows that the court gave these two instructions with modifications, but the modifications, whatever they may have been, are not shown by the record certified to this court for review. (Section 426, Criminal Practice Act.) What construction is to be given this statute? Is not its object to give to a defendant a manner of appealing without the necessity of a bill of exceptions? It certainly can serve no other purpose. It is to be read in conjunction with sections 387 and 388 of the criminal practice act, which makes it obligatory of the trial judge "that upon each charge so presented and given or refused, the court shall endorse its decision and sign it. If part be given and part refused, the court shall distinguish, showing by the endorsement, what part of the charge was given and what part refused."

III. Upon instruction No. 6 the court did not perform that duty. Appellant contends that, if a statute gives to a defendant a mode of appeal dependent upon the performance of certain acts required by law of the court, and the court refuses to follow the law, and through its action, the defendant is denied the advantage of an appeal as to those points, the defendant is deprived of a substantial right such as to warrant the reversal of the judgment. ( State v. McCombs, 13 Iowa, 426.)

IV. Instruction No. 6 was not given in the form in which it was asked, but was rewritten by the court and endorsed "given as modified," with the signature of the trial judge. The original instruction bears no endorsement whatever and is consequently no part of the record. ( People v. Gleason, 1 Nev. 173; People v. Flahave, 58 Cal. 249; People v. Tethrow, 40 Cal. 287.) How is this court to review the modification made to this instruction? It must be admitted that there is no way in which it can be done. The court's action had deprived defendant of this right. The law gives the defendant a mode of appeal other than by bill of exceptions — from the judgment roll. If the action of the lower court in this case is upheld, does it not put this right of appeal exclusively in the discretion of the district court? If the trial judge should neglect, as he has done in this case, to perform the duty imposed upon him by law, would not the defendant's right to an advantage of appeal in this manner be cut off? The right to have the instruction reviewed by the supreme court would certainly be denied the defendant.

V. The only means of identifying the action of the court as to instruction No. 6 would be to compare it with the original paper upon which the instruction was written. But how is this court to know it was the original paper and the one requested by the defendant? it bears no endorsement whatever or signature of the court. It was inserted in the record by the clerk. It certainly cannot be used by the appellant to identify any error which may have been made by the court in the instructions given instead. "It does not bear the authentication of the court and forms no part of the record on appeal." ( People v. January, 77 Cal. 179; Ham v. W. I. N. Ry. Co., 61 Iowa, 720; sec. 288, Crim. Pr. Act; Baldwin v. Shill, 3 Ind. App. 291; Condon v. Morning Star, 24 Ind. 150; Bois v. Henry, 32 Ill. 138.)

VI. The court committed error in modifying the following instructions asked by the defendant's counsel: "You are instructed that each circumstance essential to the conclusion of the defendant's guilt should be fully established in the same manner and to the same extent as if the whole issue rested upon it. You must be satisfied that each link in the chain of circumstances essential to the conclusion sought to be established by the prosecution has been fully proved beyond a reasonable doubt, to your entire satisfaction; otherwise, you must acquit." The foregoing instruction was copied from the case of People v. Ah Chung, 54 Cal. 403, and in commenting upon the giving of this instruction by the lower court, the supreme court of that state say: "This was a clear and intelligible statement of the rule and fairly presented to the jury the law of the case by which they were governed." The italicized words show the modification of the instruction by the court. In lieu of the first words so italicized, the court inserted the words "every material fact going to." Appellant contends that this was error. There is a broad distinction between a "material fact" and an "essential circumstance." A circumstance is something attending, appendant or relative to a fact or case, while a fact is a thing done, a deed, an effect produced or achieved. The object of the instruction was to call the attention of the jury that it was as necessary that a circumstance should be proven or established as well as material facts in the case. The court by its modification of the instruction confined the jury to "material facts going to the guilt," which certainly must have restrained it from giving any attention to the establishing of circumstances. A circumstance not fully established may raise a reasonable doubt of guilt. Then, is it not as fully important that each essential circumstance should be established in the same manner and to the same extent as if the whole issue rested upon it, as well as every material fact? ( Scott v. State, 19 Tex. App. 325; Starkie on Ev., 9th ed., sec. 856; Thomp. on Trials, sec. 2511; Sumner v. State, 5 Blackf. 579; Burrill, Cr. Evidence, p. 733; 3 Greenleaf on Evidence, sec. 30; People v. Phipps, 39 Cal. 333.)

W. D. Jones, Attorney-General, and J. Emmett Walsh, District Attorney, for Respondent:

I. None of the purported instructions, either given, modified or refused, as contained in the transcript on appeal on file, bear the file marks or any distinguishing or identifying marks of the district court showing that they were asked or given in this action, and, so far as the record is concerned, there is nothing to show that any of the purported instructions on pages 13 to 32, inclusive, of the transcript on appeal were ever filed in the district court or that they are the original papers in the case.

II. It has been repeatedly decided in this state that it is not error for the court to refuse an instruction which has already been given in substance, and in terms as clear, full and favorable to the defendant as those in which the court is asked to repeat it. ( State v. O'Connor, 11 Nev. 425; State v. Waterman, 1 Nev. 549; State v. Cardelli, 19 Nev. 330; State v. McLane, 15 Nev. 364; State v. Rover, 13 Nev. 24; State v. Millain, 3 Nev. 449; People v. Elliott, 119 Cal. 594; People v. Ramirez, 56 Cal. 538; People v. Douglass, 100 Cal. 5.)

III. Error is claimed by appellant upon the ground that some of the instructions were not given as they were written and requested and that they fail to show wherein they were modified. An examination of the transcript will show that some of the identical instructions complained of are contained therein in duplicate and show the modification of the court, and, without a bill of exceptions, how can it be proved to this court which set of these instructions were read and given to the jury when they retired to consider their verdict? The court was not required to give any reason for modifying these instructions and giving them as modified.

IV. "The court is not bound to give instructions in the exact language used by counsel, even if correct, but may add to, or change, the phraseology in order to make the language more clear and explicit, or to prevent the jury from being misled." ( State v. Davis, 14 Nev. 413; Gaudette v. Travis, 11 Nev. 149.)

V. The action of the court in not designating what portion of the instruction was given and what part modified was immaterial, for courts will not reverse a judgment for an abstract and immaterial error. ( People v. Ramirez, 56 Cal. 538; People v. Ybarra, 17 Cal. 166; People v. Douglass, 100 Cal. 6.)

VI. When there is no bill of exceptions showing or referring to the evidence on which the instruction is based, this court cannot presume that there was such evidence, but must presume in favor of the correctness of the judgment, and consequently to presume that the instruction was a mere abstract proposition, having no reference to the evidence in the case, and therefore perfectly immaterial. In the absence of a bill of exceptions stating what the evidence in the case was, the refusal of a judge to give an instruction about a legal proposition, which might or might not be involved in the trial of a case, would not be error. Even if it appeared affirmatively from the record that the court had given a wrong instruction about a mere abstract principle of law, which had no application to the case on trial, this of itself would not be such an error as to reverse the judgment. ( State v. Waterman, 1 Nev. 558.)