Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-09-29

The State of Nevada.
Respondent.
Arnold Mai.er.
Appellant.
Appeal from the District Court of the
State OF Nevada, in aud for orusby
County, Hon. c. +. Mack.
.iulge
w. d. Jones. Attorney General,
j. Emmett Walsh. District Attorney
Ormsby County.
i. T. DuPuis,
For Art.eI ant.
OPINION
BY Massey. =
The appellant WAS ch.I "a ~ iudict-
ment with the crime Il 2raist lArceny
and upon a trial therefor Was nvicted
and sentenced to imp ,s,,si:tn, at for a
term Of five years. He aI .es.., ron. the
Judgment
First It is contrnt}e,i tat the count
err Ell III refusing Ia give to the jurN in
structions numbered > -. IS and Ii asked
by the appellant. Each of the instruc-
tons bears the endorsement OF the Dis
,rict Judge to the effect that it had been
given in other instructions. 1t has been
repeatedly decided by this court that it is
not reversible error to refuse an instruc-
ton which has already been given in
substance and in terms as clear, full and
favorable as those il which the court is
asked to repeat it.
State v. Cardelli, 10 New. $50: State V.
McClane. 10 New. 364: State V. O'Connor,
IL New. 425; State v. Rover, Is New. "a:
State V. Mcmillan, 3 New. 400; State V.
Waterman, l New. 3D.
II has also been he'll. that if an instruc-
ton is refused becaus. is substance ht,~
already been given. that fact should be
stated and noted on the instruction.
State Y. Ferguson, 8 New. I06.
Appellant contends that it does not APP
pear from the record that the instructions
asked We're given in substance as re-
CURED by the rule. Ii this claim be ten
able he is at fault in not bringing to this
court all the instructions given. The rec
ord purports to contain the instructions
given by the court on its own motion
but the papers containing these instruc
tons are no part OF the record, not being
contained in a bill of exceptions as re
quired by the provisions of the crinina
practice act. State V. Rover, II Nev. "a.
State V. Forshay, New. 49,: State )
Burns. s New. 25ll
1t rests upon the appellant to show er
ror. He must atiirmatively show by TIL
record that the instructions aske>. wer
not embraced in the charge given, other
wise how can we ascertain whether 0
not the law contained in the charge givel
did not EN- brace the instruction refused
The only inference which can be indulge
from the record upon which the appel
liant relies is that the instructions wer
refused because given in the instruction
not carried up in the record.
(Bolen v. The State. % oh. st. 81: Del
haney v. The State, lis Ind. 100; Care,
V. The State, lo9 Ind. 81: Pad Ency. P
d Pr. 4S2-4s3; Il Ency. II. < Pr. 500
Second. The appellant assigns as el
ror the action OF the court III modfyin
instructions and Asked by him. Thes
instructions as modified and given al
set out in the record The instruction
as asked are not in the record. 1t is n,
claimed that the modified instructions d
not contain a correct statement of IL
law. 1t is well settled that the cou
may modify instructions so as to relic,
them of any possible ambiguity an
make their meaning more certain.
State v Watkins, II New. 80: State
Smith, 10 New. 106; State v. Davis.
New. 4O7)
IN the absence of any claim of error
the instructions as modified and give
and without the record containing ii
instructions as asked. how can we or
dictate error i'll the ditication mac
under the rule announced? Conced Il
for the argument only, that it was ii
duty OF the court to endorse upon each
these instructions as asked. the pa
given and the part refused, the appel. a
IS not i'll Il position to complain OF II
failure in this respect as he has n
brought to this court the instructions