[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
OPINION 1-2. The petition for a rehearing states that we were evidently slightly confused as to the instruction first quoted in the opinion, and instruction No. 10 as given by the court. *Page 431
We were not in the least confused as to the correctness of either. After quoting the instruction mentioned, we pointed out why it was not applicable. We referred to several authorities sustaining the view that an officer does not have to see a violation of the law to justify a jury in finding that it was committed in his presence. The authorities cited in support of the conclusion we reached amply justify that conclusion, and many more might be cited to the point.
It is contended that we erred in saying that one vice of the instruction refused, above mentioned, is that it tells the jury that there is no evidence that defendant engaged in the target practice in the presence of Officer Long. In support of the contention counsel rely on the case of State v. Anselmo, 46 Utah 127,148 P. 1071. All that is held in the case mentioned, on this point, is that if the question of arrest of the offender in the presence of the officer is not in dispute, nothing on this point is to be left to the jury, but that the contrary is true where the facts are in dispute.
We did make a misstatement in saying the court did not err in refusing to give requested instruction No. 10. What we should have said was that the court did not err in giving instruction No. 10. Instruction No. 10 states the converse of the requested instruction quoted, which we held properly refused. Naturally, if that was properly refused, No. 10 was properly given.
3. It is insisted that we misstated Olsen's testimony as to where Long was when Olsen heard the first of the three shots of which he gave testimony. In this counsel is correct. Olsen testified that at the time mentioned he was in the vicinity of the Capital Building and that Long was in front of the Northern Hotel. The writer, having personal knowledge of the relative position of the two buildings, fell into the error mentioned. Since there was no showing as to how far the Northern Hotel is from the Palace Club, the question is whether the jury, under the evidence, was justified in finding that Long heard the shooting. While Long was in front of the *Page 432 Northern Hotel the first shot heard by Olsen was fired; where he was when the other two shots were fired does not appear. As we pointed out in our former opinion, defendant's witness Lewis, in referring to Long going into the Palace and as to what was said, testified: "He came in and he says: `What's all this racket about?' He told Mr. Smithson that he didn't want to hear any more racket like that and took a gun away from Mr. Smithson."
Defendant's witness Baldwin, evidently an employee of defendant, referring to Long's appearance upon the scene, testified: "He came in the front door and walked over to Bart (defendant) and he said, I think, `You are disturbing the peace or creating a disturbance * * * You better give me that gun.'"
Defendant's witness Lyon testified on this point that Long, when he came into the Palace, said to defendant: "What the hell you trying to pull off around here. Bart said; Nothing. We just having a little target practice."
The witness Sumner testified: "Well, the next shot was fired, that I can recall, was when Officer Long dropped in — after he stopped shooting at the dollar."
The witness McGuire testified: "I think he shot at it twelve times. He never hit the dollar but he hit the box once and knocked the box over and the dollar fell out. And then Mr. Long came in and said to Mr. Smithson, he said, "Jesus Christ, Bart, you can't shoot like that in here."
In view of this testimony we think the jury had the right to infer that Long heard the shooting in question, and in addition to that he found defendant in possession of the gun, supplemented by the statement of the defendant that "we are just having a little target practice." From this showing we think the jury had the right to find that Long walked into the Palace Club while the defendant was flagrante delicto.
Counsel quotes the following from our former opinion:
"Of course, before one can be convicted of murder in resisting an unlawful arrest the jury must, upon an *Page 433 appropriate instruction, find that all the elements of the crime of murder, as defined by statute, entered into the killing."
4. The court defined murder in its instruction No. 3, and in instruction No. 4 distinguished between murder of the first and second degree. If the defendant wanted further instructions on that phase of the case he should have requested them. State v. Charley Hing, 16 Nev. 307; State v. McLane, 15 Nev. 345; State v. Switzer, 38 Nev. 108, 145 P. 925.
We cannot see that the defendant was in any way prejudiced during the trial.
The petition is denied.