Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1915-07-23
Decisions Rendered
Continued from page y


ion on rehearing written by Nor
cross, c. j., concurred in by Cole
man j., and tt which McCarran, J.,
dissented. A rehearing was granted
in this case in order that the court
might give further consideration to
an instruction alleged to be erro1i-
eous, and which had not been con-
sidered specifically in the opinion
formerly rendered by the. court af-
firming the judgment. The instruc-
ton complained of in part read:
"Nor will irresistible passion, ii
proved to have existed, be sufficient
to reduce the degree of the offense
where the killing was done with ex-
press malice, as heretofore defined"
1t was held that irresistible passion
and express malice could not co-eNst
for the reason that the law holds
that n acting under irresistible
passion acts without due deliberation,
while to constitute express malice
the act must be done with deliberate
intent. The court held tina reading
the legal definitions n into the in
struction, and it would in effect be
equivalent to instructing the jury
Nor will the fact that the killing was
done without due deliberation, if
proven SO to have been done, be
sufficient to reduce the degree of Of
fa,ca - tho 1,11,,~ I~.,~ With
deliberate intention" The court
held that the instruction as a whole
was confusing, contradictory, er-
roneous and prejudicial."
The opinion held that it was of the
utmost Importance in this case that
the distinction between murder OF
the first and second degree be clear
ly defined to the jury, as the degree
! of passion under which the defendant
was acting was a vital element for
, the Jury to determine in arriving at
the degree of murder.
1t appears from the evidence that
the defendant and the Indian girl,
Bessie Andy, had been living to-
gether as husband and wife some five
or six years before the killing; that
just prior to the killing the defendant
had taken the deceased and her
father and mother to a Thanksgiv-
ing day dinner, and their relations
apparently most cordial until they
met a white mar named Odell and a
half-breed Indian on a street in Elko.
language between Bessie Andy and
the hald-breed, which caused the de-
PENDANT to become suddenly enraged
at the Indian girl; defendant struck
. the Indian girl, knocking her down.
and was beating her when Odell and
the half-breed interfered and began
to beat the defendant whereupon he
drew his knife and Odell and the
half-breed ran. Defendant chased
the half-breed into a nearby saloon
where he stabbed him, inflicting a
slight wound; returning from the
saloon he went directly to the Indian
girl and stabbed her to death. That
defendant was under a high state Of
passion was held to be clearly es-
taOlished. The extent and cause for
passion is a matter held to be vital
in distinguishing between murder of
the first and second degree. Be-
cause of the instruction confusing
the distinction, it was held to consti-
tute reversible error.
Christensen VS.. Duborg
The case of Christensen VS.. Du-
borg and Anderson was an action to
recover a balance of $3.50 for an al
legged commission for the sale of
certain mining stock. The court held
that the contract having expired be-
fore the sale Of the stock was per-
fected the plaintiff would not be en-
titled to recover upon a sale under a
different contract to which the plain
tiff was not a party, effected some
months later. The judgment of the
lower court was affirmed. Opinion
by Coleman, justice, concurred in by
the full court.