Defendant was convicted of murder in the second degree, and has appealed from the judgment and from the order denying a new trial. He has assigned eleven alleged errors, on which he relies for a reversal, as follows:
1. The court erred in denying defendant's motion for bail.
2. The court erred in denying defendant's motion for change of venue.
3. The court erred in granting the motion to add names of certain witnesses to the information.
4. The court erred in denying defendant's challenge for cause of juror Marva Ray Johnson.
5. The court erred in allowing the State to examine witness Bernard J. Handlon in such a manner that evidence which tended to show defendant committed the separate and distinct crime of robbery was brought before the jury.
6. The court erred in allowing Capt. Sam Irick to testify as to certain extrajudicial statements allegedly made by defendant over latter's objection.
7. The court erred in allowing Bernard J. Handlon to testify as to certain extrajudicial statements of defendant, and overruling the latter's objections.
8. The court erred in refusing to allow Capt. Sam Irick to testify as to dying declaration made by deceased.
9. The court erred in refusing to instruct the jury to disregard improper statements of the district attorney and his deputy in their arguments. *Page 651
10. The court erred in giving instruction No. 17.
11. The court erred in denying the motion for a new trial.
All of these assignments of alleged errors have been considered in their numerical order in the prevailing opinion, and the majority of this court has held that assignments Nos. 2, 3, 6, 7, and 10 are without merit. With this conclusion I agree. I do not agree, however, with the disposition by the majority of this court of the other assignments of alleged error. These will now be considered.
The first assignment, that the court erred in denying defendant's motion for bail before conviction, cannot now be determined by this court, for two reasons: (1) because defendant's only remedy was by habeas corpus, and (2) because any legal question involved in this assignment is moot.
The statute providing for the review of an intermediate order or proceeding upon appeal from the final judgment in a criminal case, sec. 11087, N.C.L. 1929, upon which the majority bases the right of this court to determine, upon appeal from the judgment, whether or not bail before conviction has been erroneously denied, is similar to section 398 of the old Civil Practice Act, sec. 5340, Rev. Laws 1912, sec. 8887, N.C.L. 1929.
In construing the latter section, this court correctly held that an order from which a direct appeal could be taken was not within its purview, and that upon appeal from a final judgment, an intermediate order which was itself made the subject of a direct appeal, could not be reviewed. Maitia v. Allied Land Live Stock Co., 49 Nev. 451, 248 P. 893.
It is true there is no statute providing for a direct appeal from an order denying bail in criminal cases. There are, however, statutory provisions expressly providing that all questions regarding the want of bail in criminal cases may be disposed of in habeas corpus proceedings. Secs. 11397-11399, N.C.L. 1929.
That the writ of habeas corpus is an appropriate and *Page 652 proper remedy in aid of bail has been repeatedly recognized by this court. Ex parte Isbell, 11 Nev. 295; Ex parte Finlen,20 Nev. 141, 18 P. 827; Ex parte Douglas, 25 Nev. 425, 62 P. 49; Ex parte Nagel, 41 Nev. 86, 167 P. 689; Ex parte Jagles and Varnes,44 Nev. 370, 195 P. 808; Ex parte Malley, 50 Nev. 248,256 P. 512, 515, 53 A.L.R. 395.
There is no difference in principle between a statute which provides for a direct appeal from an intermediate order and a statute which, in effect, provides that an intermediate order may be reviewed in habeas corpus proceedings, in that each provides an exclusive remedy for review of the specified intermediate order, and thus prevents the review of such an order on appeal from the final judgment. See Maitia v. Allied Land Live Stock Co., supra, 49 Nev. 451, 462, 248 P. 893; State v. Cohen, 45 Nev. 266,201 P. 1027, 18 A.L.R. 864, and note; Ex parte Stegman,112 N.J. Eq. 72, 163 A. 422, 426.
In Ex parte Stegman, supra, the petitioners in habeas corpus proceedings alleged that the lower court had denied an application to reduce bail, which, as originally fixed, was excessive and in violation of their constitutional rights. In granting the writ admitting petitioners to bail, under statutory provisions practically the same as in Nevada, the court of chancery said:
"The remedy of a prisoner who is entitled to bail in cases in which the bail asked is excessive or who is denied bail is by habeas corpus, and that is his only remedy, and his right to invoke it is absolute, and the duty cast upon the court not only to grant the writ but to admit to bail is mandatory." Italics supplied.
As to the second reason, it cannot be denied that the legal question involved in this assignment is moot. In fact, it is so stated in the prevailing opinion, in these words:
"It is most unusual to wait until a determination of the right to bail would be unavailing, insofar as bail before conviction is concerned, and then to raise the question upon the appeal, upon the theory that the *Page 653 alleged wrongful denial of bail goes to the validity of the judgment." See, also, State v. Cohen, supra, 45 Nev. 266,201 P. 1027, 18 A.L.R. 864, and note; St. Pierre v. United States,319 U.S. 41, 63 S. Ct. 910, 911, 87 L. Ed. 1199, and note.
In St. Pierre v. United States, supra, the appellant had been sentenced to a term of imprisonment for criminal contempt in refusing to answer a question asked him before a grand jury. His application for bail made to the district court and to the circuit court of appeals was refused; and he did not apply for a stay or a supersedeas. The case not having been brought to the supreme court until after appellant's sentence had been served, that court said:
"We are of opinion that the case is moot because, after petitioner's service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate. A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it. (Citing cases.) The sentence cannot be enlarged by this Court's judgment, and reversal of the judgment below cannot operate to undo what has been done or restore to petitioner the penalty of the term of imprisonment which he has served."
Our supreme court has repeatedly refused to give opinions on moot questions or abstract propositions. State v. McCullough,20 Nev. 154, 18 P. 756; Haley v. Eureka County Bank, 21 Nev. 127,26 P. 64, 12 L.R.A. 815; Wedekind v. Bell, 26 Nev. 395, 412,69 P. 612, 99 Am. St. Rep. 704; State v. Pray, 30 Nev. 206, 219, 220,94 P. 218, 220; Foster v. Jones, 35 Nev. 248, 128 P. 986; Pacific Livestock Co. v. Mason Valley Mines Co., 39 Nev. 105, 111,153 P. 431, 433; Earl v. Morrison, 39 Nev. 120, 154 P. 75; Ex parte Ming, 42 Nev. 472, 496, 181 P. 319, 6 A.L.R. 1216; Ex parte Moriarity, 44 Nev. 164, 173, 191 P. 360; Edwards v. City of Reno,45 Nev. 135, 143, 198 P. 1090, 1092; State v. Cohen, supra,45 Nev. 266, *Page 654 201 P. 1027, 18 A.L.R. 864; City of Reno v. Second Judicial District Court, 58 Nev. 325, 78 P.2d 101; Morrow v. Morrow,62 Nev. 492, 496, 156 P.2d 827.
It has even held that after a case had been argued and submitted for its decision and judgment, such case could and should be disposed of by dismissal without opinion when it appeared that the parties to the suit had settled it between themselves. Wedekind v. Bell, supra, 26 Nev. 395, 412, 69 P. 612,614, 99 Am. St. Rep. 704.
In State v. Pray, supra, in City of Reno v. Second Judicial District Court, supra, and in Morrow v. Morrow, supra, this court quoted with approval from Mills v. Green, 159 U.S. 651,16 S. Ct. 132, 133, 40 L. Ed. 293, the rule universally recognized:
"The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it."
Do the facts in this case afford any reason, cause, provocation, justification or excuse for this court now holding that it will give opinions on moot questions or abstract propositions, contrary to the rule announced in all of the earlier Nevada decisions where the question arose? I think not.
The fourth assignment is, that the court erred in denying defendant's challenge for cause of juror Marva Ray Johnson.
The juror was asked: "You would require evidence before you would have an open mind? In other words, you would have to hear some evidence before you would feel that you were fair and impartial?" and she replied: "I would feel that I was more fair after hearing the evidence than I do now." Defendant's attorney thereupon interposed a challenge in the following words: "I believe, if Your Honor please, that is one of the grounds." *Page 655
The challenge was not specific, in that it specified no ground upon which it was based, as expressly required by sec. 10948, N.C.L. 1929. It was, therefore, insufficient and properly overruled. State v. Squaires, 2 Nev. 226, 230; State v. Raymond,11 Nev. 98, 106; State v. Vaughan, 22 Nev. 285, 296, 39 P. 733; State v. Simas, 25 Nev. 432, 449, 62 P. 242; State v. Salgado,38 Nev. 64, 70, 145 P. 919, 150 P. 764; State v. Milosovich, 42 Nev. 263,269, 175 P. 139; State v. Lewis, 50 Nev. 212, 224,255 P. 1002.
Moreover, had a specific challenge in this case been made, it should have been overruled, because the examination, taken as a whole, disclosed that the juror had not formed or expressed an unqualified opinion or belief in regard to the guilt or innocence of the defendant. Sec. 10946, N.C.L. 1929; State v. Raymond, supra, 11 Nev. 98, 107; State v. Williams, 28 Nev. 395, 407,82 P. 353; State v. Milosovich, supra, 42 Nev. 263, 269, 175 P. 139; State v. Lewis, supra, 50 Nev. 212, 228, 255 P. 1002.
The fifth assignment of error is, in effect, that the court erred in admitting testimony which tended to show that defendant had committed the separate and distinct crime of robbery.
Bernard J. Handlon, a detective sergeant of the Las Vegas police department, testified that he aided in the search of the home of defendant on the night of November 24, 1946, the date of the homicide, and that, as a result of said search, they "found a large amount of stolen jewelry from the armed robbery of the Jerry Jeram Store."
Upon motion of defendant's counsel that the answer be stricken, the court said:
"It may be stricken. The jury is admonished not to give any heed as to the word `stolen,' or as to what he found in that relation. * * * It may be stricken, and the jury is admonished not to pay any attention as to any statements made by the witness as to finding jewelry in the premises. The Court had no way of *Page 656 knowing what the answer would be until it was made. The jury is admonished not to pay any attention to that testimony."
The court thereafter gave an instruction reading as follows:
"The Jury is instructed that all evidence which has been ruled upon by the Court as being inadmissible should be disregarded by you."
The defendant took the stand in his own behalf, and, in response to questions propounded by his attorney, testified that deceased "had brought jewelry in that didn't belong there," that deceased told him "that Joe Lark had got the jewelry from the Jerry Jerram holdup"; that he stated to deceased: "Is that a nice thing to do, to bring that stuff in my place, in my house * * * I should turn you over to the police for bringing that stuff in my place."
In State v. Skaug, 63 Nev. 59, 64, 161 P.2d 708, 710,163 P.2d 130, this court said:
"It is well settled that evidence that accused has committed another crime independent of and unconnected with the one for which he is on trial, is inadmissible. The rule has well established exceptions and both have received the attention of this court in a number of cases. State v. McMahon, 17 Nev. 365,30 P. 1000; State v. Vaughan, 22 Nev. 285, 39 P. 733; State v. Roberts, 28 Nev. 350, 82 P. 100; State v. McFarlin, 41 Nev. 486,172 P. 371; State v. Monahan, 50 Nev. 27, 249 P. 566; State v. Hall, 54 Nev. 213, 13 P.2d 624; State v. Behiter, 55 Nev. 236,29 P.2d 1000." See, also, State v. Salgado, 38 Nev. 64, 76,145 P. 919, 150 P. 764; State v. Cerfoglio, 46 Nev. 332, 338,205 P. 791, 213 P. 102, 27 A.L.R. 848; State v. White, 52 Nev. 235, 254,285 P. 503; State v. Lindsay, 63 Nev. 40, 41, 161 P.2d 351.
It is not necessary to determine whether the rule just mentioned, or any of the well-established exceptions thereto, apply to this case. If, as held in the prevailing opinion, the admission of the testimony constituted *Page 657 error, which, in my opinion, is extremely doubtful, such error was cured and rendered harmless:
1. By the action of the court in promptly striking the testimony from the record and admonishing the jury to disregard it. State v. Urie, 35 Nev. 268, 274, 129 P. 305; 24 C.J.S., Criminal Law, sec. 1915e (1).
2. By the action of the court in later instructing the jury to disregard it. State v. Urie, supra, 35 Nev. 268, 274, 129 P. 305; 24 C.J.S., Criminal Law, sec. 1915e (2).
3. By the establishment of equivalent facts by the testimony of defendant when examined as witness in his own behalf. State v. O'Keefe, 23 Nev. 127, 133, 43 P. 918, 62 Am. St. Rep. 768; State v. Johnny, 29 Nev. 203, 219, 87 P. 3; State v. Williams, 31 Nev. 360,367, 102 P. 974; State v. Urie, supra, 35 Nev. 268, 274,129 P. 305; State v. Bachman, 41 Nev. 197, 207, 168 P. 733; State v. Behiter, 55 Nev. 236, 253, 29 P.2d 1000; Skidmore v. State,59 Nev. 320, 331, 92 P.2d 979.
The eighth assignment is, that the court erred in refusing to allow Capt. Sam Irick to testify as to dying declaration made by deceased.
Had objections to the questions not been sustained, the witness would have testified that, in a conversation with the deceased in the hospital, approximately two hours after deceased was shot:
"I asked Mr. Linabury what had happened and he said there had been an accident — that he was shot accidentally."
That this statement of deceased was not admissible as a dying declaration, even though it be assumed that it "was made by the declarant when he was in extremis, and when he was fully conscious of that condition," is, in my opinion, too plain to admit of argument. However, as the majority of this court has held that its "exclusion from evidence was unjust to the defendant, and constituted reversible error," it is necessary to carefully consider the matter.
The admissibility of dying declarations is, in the first *Page 658 instance, a question of law to be determined by the court on the preliminary proof or predicate for their admission. State v. Hennessy, 29 Nev. 320, 334, 90 P. 221, 13 Ann.Cas. 1122; State v. Scott, 37 Nev. 412, 425, 426, 427, 429, 430, 142 P. 1053; Wigmore on Evidence, 2d Ed., vol. 3, page 185, sec. 1451; Nichols, Applied Evidence, vol. 2, page 1843, sec. 100, note 12; Chamberlayne, Trial Evidence, 2d Ed., page 742, sec. 791; Underhill's Criminal Evidence, 4th Ed., page 393, sec. 212, note 55; 4 Encyc. of Evidence, page 947; 26 Am.Jur., Homicide, sec. 414; 40 C.J.S., Homicide, sec. 295d, p. 1268, note 8 Ann.Cas. 541.
But, after the declarations have been admitted in evidence, the weight and credibility to be given them are matters exclusively for the jury. State v. Scott, supra, 37 Nev. 412,426, 427, 142 P. 1053; State v. Watts, 52 Nev. 453, 472,290 P. 732; Wigmore on Evidence, 2d Ed., vol. 3, page 186, sec. 1451(b); Nichols, Applied Evidence, vol. 2, page 1844, sec. 101; Chamberlayne, Trial Evidence, 2d Ed., page 748, sec. 798; 26 Am.Jur., Homicide, secs. 414 and 425; 40 C.J.S., Homicide, sec. 295d, pp. 1269, 1270, Note 8 Ann.Cas. 541.
Dying declarations are only competent as to facts which the witness might testify to if living. People v. Alexander,161 Mich. 645, 126 N.W. 837, 21 Ann.Cas. 150, 151; Hollywood v. State, 19 Wyo. 493, 120 P. 471, 122 P. 588, Ann.Cas. 1913E, 218, 223; State v. Wilks, 278 Mo. 481, 213 S.W. 118, 120; Marshall v. State, 219 Ala. 83, 121 So. 72, 63 A.L.R. 560, 564; 40 C.J.S., Homicide, sec. 303a, page 1281, notes 26-28; sec. 298, page 1274, note 48; Underhill's Criminal Evidence, 4th ed., sec. 217, page 404, note 98; Jones on Evidence, 4th ed., vol. 1, page 615, sec. 334, note 16; Chamberlayne, Trial Evidence, 2d Ed., page 746, sec. 797; 26 Am.Jur., Homicide, sec. 393, page 430; Wharton Criminal Evidence, 11th ed., vol. 1, page 900, sec. 548.
The same rules which govern the admissibility of evidence, if the deceased were placed on the witness stand to testify, will be applied to his dying declaration, *Page 659 when offered for admission; and the character of evidence which would be excluded, if presented by a witness on the stand, must be excluded if presented as his dying declaration. Coots v. Commonwealth, 295 Ky. 637, 175 S.W.2d 139, 140.
If Linabury had been sworn as a witness, it would not have been competent for him to have testified that "there had been an accident — that he was shot accidentally," because these statements were mere declarations of his opinion. State v. Ross, 32 La. Ann. 854, 856; Stone v. Denny, 4 Metc., Mass., 151, 164; Abbott on Facts, 5th ed., sec. 44; 5 Encyc. of Evidence, page 659, note 86, page 670, note 13, page 686, note 61.
See, also, State v. Wright, 112 Iowa 436, 84 N.W. 541, 544, where the court held that the statement by the deceased "that he did not believe defendant intended to shoot him is an opinion merely, and would not be received from a living witness."
A mere expression of opinion by a dying man is not admissible as a dying declaration. Jones v. State, 52 Ark. 345, 347,12 S.W. 704; Berry v. State, 63 Ark. 382, 38 S.W. 1038; State v. Wilks, supra, 278 Mo. 481, 213 S.W. 118, 120; Roberts v. Commonwealth,301 Ky. 294, 191 S.W.2d 242, 243; Marshall v. State, 219 Ala. 83,121 So. 72, 63 A.L.R. 560, 566; Note Ann.Cas. 1913E, 228; Note 63 A.L.R. 567; Wharton's Criminal Evidence, 11th ed., vol. 1, page 863, sec. 535; 4 Encyc. of Evidence, page 993; 40 C.J.S., Homicide, sec. 299a, page 1277, note 70.
It is immaterial whether the fact that the declaration is a mere opinion appears from the statement itself, or from other undisputed evidence, showing that it was impossible for the declarant to have known the fact stated. Jones v. State, supra,52 Ark. 345, 12 S.W. 704; Berry v. State, supra, 63 Ark. 382,38 S.W. 1038; State v. Wilks, supra, 278 Mo. 481, 213 S.W. 118, 120; Note Ann.Cas. 1913E, 228; 4 Encyc. of Evidence, page 993; 40 C.J.S., Homicide, sec. 299a, pages 1277, 1278, note 74.
But what constitutes an opinion and what constitutes a statement of fact is a matter upon which the courts *Page 660 "are decidedly not in harmony." State v. Strawther, 342 Mo. 618,116 S.W.2d 133, 120 A.L.R. 583, 589; Note 25 A.L.R. 1376; Wharton's Criminal Evidence, 11th ed., vol. 1, page 866, sec. 536; 26 Am.Jur., Homicide, sec. 395, page 431, note 6.
For the purpose of determining that question, it is proper to take into consideration not only the statement itself, but the surrounding circumstances. State v. Strawther, supra,342 Mo. 618, 116 S.W.2d 133, 120 A.L.R. 583, 589; 26 Am.Jur., Homicide, sec. 395, pages 431, 432, note 11.
The true and proper test as to admissibility is whether the statement is the direct result of observation through the declarant's senses, or comes from a source of reasoning from collateral facts. If the former, it is admissible; if the latter it is inadmissible. House v. State, 94 Miss. 107, 48 So. 3,21 L.R.A., N.S., 840, 843; Hollywood v. State, supra, 19 Wyo. 493,120 P. 471, 475, 122 P. 588, Ann.Cas. 1913E, 218, 222; Wharton's Criminal Evidence, 11th ed., vol. 1, sec. 536, page 868, note 10; 40 C.J.S., Homicide, sec. 299a, page 1278, note 76.
It certainly cannot be said that the deceased's statement that "there had been an accident — that he was shot accidentally," was "the direct result of observation through the declarant's senses," for three reasons:
1. According to testimony introduced by the prosecution, deceased was shot in the back which made it physically impossible for him to have observed the defendant, or the gun, or any other thing to his rear.
That defendant shot Linabury in the back is thus established, provided such testimony is true, by his statement to Detective Bruce Thomas Woofter on the evening of November 24, 1946, the date of the shooting, in the Las Vegas detective bureau office, that he shot him in the back; by his statement to Detective Sergeant Bernard J. Handlon, about 3:45 o'clock p.m., November 29, 1946, in defendant's residence, that it sure looked tough because he had sure shot Mr. Linabury in the back; by his statement to Captain of Detectives O.L. *Page 661 Slark, about 4 o'clock p.m., November 29, 1946, in the city police department, that "It looks tough because I shot him in the back"; and by the fact that the hole in the back was clean cut, while the hole in the chest was slightly larger, with the skin slightly stretched or torn, and the opinion by Dr. J.C. Cherry that the exit of the bullet was in front.
That the deceased was shot in the back is also indicated by the fact, testified to by Detective Sergeant Bernard J. Handlon and not denied by defendant, that on November 29, 1946, in the room of the dwelling where deceased was shot, defendant voluntarily stated:
"Mr. Linabury was walking toward the bedroom, preparing to go through the door from the kitchen to the bedroom, with his back to him, when he turned his head slightly with a sneer on his face, and at that time the gun went off."
That deceased was shot in the back is further indicated by the course of the bullet.
The bullet passed entirely through the body. The wound in the front was on the right side of the chest in the middle of the sternum or breastbone, at about the level of the third rib, while the wound in the back was at about the same level, just below the right shoulder blade and between it and the spine.
2. If, instead of having been shot in the back, as indicated by the foregoing testimony, thus making it physically impossible for the deceased to have seen the defendant or the gun, the deceased had been looking directly at defendant, he could not have observed anything upon which to base his expressed opinion.
Edward G. Cupit, who qualified as an expert on firearms, testified that the lethal weapon was a Colt 32.20 single action revolver; that it could not be fired by pulling the trigger unless it was cocked; that to cock the revolver, it was necessary to push back the hammer; that it could also be fired by holding the trigger back with one hand and pushing back the hammer with the other hand, commonly called "fanning a gun"; that *Page 662 about eight o'clock on the date of the shooting, he asked the defendant how he had cut the middle finger on his left hand, which was then bleeding, and the defendant "answered that he was fanning the gun with his left hand, that it was an old side-wheeler."
Luther Horner, identification officer of the Las Vegas police department, testified that he was present on the date of the homicide and heard Edward G. Cupit ask defendant how he had injured the middle finger of his left hand, and heard the defendant state that the gun was an old side-wheeler, and that he was fanning it with his left hand.
The defendant testified, in effect, that after an unfriendly discussion with deceased about the bringing of stolen jewelry by deceased into the home of defendant, where deceased also resided, he asked deceased to leave his house, get his clothes, and get out; that deceased just sat and leered at him; that he went into the bedroom and secured his gun; that upon returning, with the gun in his right hand, he told deceased to get his clothes together and get out of his place; that deceased kind of hesitated for a minute, then rose, and started toward the bedroom; that defendant, with the gun in his hand, followed deceased, watching him; that deceased started into the bedroom, and suddenly the gun went off; that deceased was opening the bedroom door, and had turned, started to turn around towards defendant, and had gotten far enough around that defendant could see his whole face, before the gun went off; that he followed the deceased until the latter reached the door of the bedroom and was about to enter; that the gun went off while he was walking along, watching the deceased; that the second finger of his left hand was cut rather deep by the firing of the gun; that he did not make any statement to Edward G. Cupit about fanning the gun.
It is established by this testimony that, at and immediately before deceased was shot, defendant was walking towards deceased, watching him, holding a loaded *Page 663 gun pointed at deceased in his right hand and pushing the hammer thereof back with his left. Nothing else could have been possibly seen by deceased, even though he had been looking directly at defendant. Such testimony affords no basis whatever for an opinion that the shooting was accidental.
3. The defendant was engaged in an unlawful act.
It is clearly established in this case that at the time deceased was shot, defendant was in the commission of an act inhibited and declared to be unlawful by statute — that of aiming a loaded revolver at a human being. Sec. 10292, N.C.L. 1929.
It is also provided by statute that excusable homicide by misadventure, is when a person is doing a lawful act, without any intention of killing, yet unfortunately kills another. Sec. 10082, N.C.L. 1929.
The word "misadventure," as used in this statute, means "accident." 26 Am.Jur., Homicide, sec. 106; Ballantine, law dictionary, page 821.
The words "homicide by misadventure," as used in this statute, means the accidental killing of another, when the slayer is doing a lawful act, without any intention of killing, yet unfortunately does so. State v. Blackburn, 7 Pennewill, Del. 479, 75 A. 536, 539; Commonwealth v. Gill, 120 Pa. Super. 22, 182 A. 103, 105; Commonwealth v. Flax, 331 Pa. 145, 200 A. 632, 637; State v. Goodwin, 189 La. 443, 179 So. 591, 602; Note 3 L.R.A., N.S., 1153.
As the defendant was engaged in an unlawful act, but for which the deceased would not have been shot, the homicide cannot be attributed to an accident. Hollywood v. State, supra, 19 Wyo. 493,120 P. 471, 122 P. 588, Ann.Cas. 1913E, 218, 226; Jabich v. People, 58 Colo. 175, 143 P. 1092, 1094; Note 3 L.R.A., N.S., 1156.
If it can possibly be assumed, under any conceivable theory, that Linabury actually believed that "there had been an accident — that he was shot accidentally," — he should have stated the facts, or at least some of them, in support of his belief. Instead, not a single fact upon *Page 664 which the opinion was predicated was disclosed. He failed to show any circumstances, acts or conduct from which such a belief could be inferred. Linabury may have been mistaken as to the facts. His conclusions upon which he based his opinion may have been erroneous. The reasons for his belief may have been unsound. What to his mind justified his opinion may not have been any justification at all. The facts connected with the homicide, which prompted deceased to state his opinion, would have been admissible, but not mere matters of opinion or belief based upon them. Kearney v. State, 101 Ga. 803, 29 S.E. 127, 65 Am. St. Rep. 344, 345; Ogletree v. State, 115 Ga. 835, 42 S.E. 255; Gray v. State, 12 Ga. App. 634, 77 S.E. 916; Young v. State, 70 Ark. 156,66 S.W. 658; Mann v. Commonwealth, 215 Ky. 731, 286 S.W. 1044; Skelley v. State, 64 Okla. Crim. 112, 77 P.2d 1162, 1178; Id.,65 Okla. Crim. 54, 82 P.2d 843; 4 Encyc. of Evidence, page 994, notes 76, 78; 26 Am.Jur., Homicide, sec. 395, page 432, note 1; Wharton's Criminal Evidence, 11th ed., vol. 1, sec. 538, note 17.
The case of Commonwealth v. Matthews, 89 Ky. 287, 12 S.W. 333, 11 Ky.Law Rep. 505, so strongly relied upon in the majority opinion, is not in point so far as concerns the question whether the declaration of the deceased in this case was one of fact or opinion. There, the statement of deceased, in substance, was that he and the accused were playing, and that it was an accident. In other words, the statement that the shooting was an accident was accompanied by the statement of fact that the parties were engaged in play. Without the inclusion of such statement of fact, the statement that the shooting was an accident would not have been admitted. This, in effect, was so held in the later Kentucky case of Mann v. Commonwealth, supra, 215 Ky. 731, 286 S.W. 1044,1045, where a judgment of conviction was reversed because the trial court admitted in evidence the following dying declaration claimed to have been made by *Page 665 deceased: "Alton Mann shot me; it was not an accident; it was only a waylay." In doing so, the appellate court said:
"While a few of the courts take a contrary view, the great weight of authority, and the rule prevailing in this state, is to the effect that mere conclusions or expressions of opinion on the part of the declarant are not admissible as dying declarations. * * * Here the declarant did not undertake to describe the situation of the parties, or to state any facts leading up to, or connected with, the homicide, and we are constrained to hold that the statement that it was not an accident but it was only a waylay was a mere conclusion and should not have been admitted. It is true that we held in Commonwealth v. Matthews, 89 Ky. 287,12 S.W. 333, 11 Ky.Law Rep. 505, that a dying statement by the deceased that he and the accused had been engaged in play, and that the shooting was an accident was admissible, but there the statement that the shooting was an accident was accompanied by the statement of fact that the parties were engaged in play, and the rule excluding opinions or conclusions is not so strictly enforced where the declaration is favorable to the defendant. * * * On another trial the court will admit only the statement, `Alton Mann shot me.'" See, also, Stewart v. Commonwealth,235 Ky. 670, 32 S.W.2d 29, 33.
Moreover, the minority view adopted in Louisiana and Kentucky (State v. Ashworth, 50 La. Ann. 94, 23 So. 270, 273, and Haney v. Commonwealth, 5 Ky.Law Rep. 203, and other Kentucky cases), and cited in the majority opinion herein, that "the rule excluding opinions or conclusions is not so strictly enforced where the declaration is favorable to the accused," is not sound, and should not be adopted as the rule in Nevada. Sims v. State,98 Tex. Crim. 101, 263 S.W. 289, 290; Wharton's Criminal Evidence, 11th ed., vol. 1, sec. 538.
As said in Sims v. State, supra: *Page 666
"We so seriously doubt the soundness of the announcement as to be unwilling to ingraft it upon our system of procedure. One accused of crime in this state is now given the presumption of innocence, the benefit of reasonable doubt, the right of appeal, and complaint of all rulings thought to be adverse; and in the absence of some stronger showing of authority or reason for adopting the rule suggested, we must respectfully decline to give it our approval."
It is clear that the court did not err in refusing to admit the offered testimony.
The ninth assignment, that the court erred in refusing to instruct the jury to disregard improper statements of the district attorney, and his deputy, in their arguments, does not, in my opinion, require much discussion.
Whether remarks of the prosecuting attorney in argument amount to reversible error, depends somewhat upon the whole record. State v. Clancy, 38 Nev. 181, 184, 147 P. 449.
A very careful reading of the entire record in this case fails to disclose that either the district attorney, or his deputy, claimed that the defendant was guilty of any offense other than that on which he was being tried, or that either of them made any statement not warranted by the testimony. It is true that the defendant was referred to as a hoodlum, but the characterization finds support in the testimony.
A "hoodlum" is a young rowdy. State v. Palmer, 206 Minn. 185,288 N.W. 160, 164.
A "rowdy" is one who engages in rows, or noisy quarrels, or rough behavior; a ruffianly fellow; a rough. Webster's New International Dictionary, 2d ed.
It is unnecessary to refer to the testimony of defendant, other than that hereinbefore set forth and that stated in the prevailing opinion, to show that defendant was admittedly one who engaged in rough behavior.
The cases of State v. Rodriguez, 31 Nev. 342, 102 P. 863; State v. Petty, 32 Nev. 384, 108 P. 934, Ann.Cas. 1912d 223, and State v. Cyty, 50 Nev. 256, 256 P. 793, *Page 667 52 A.L.R. 1015, relied upon in the majority opinion, are not in point.
In the Rodriguez case, the district attorney charged in his argument that the defendant was a "macque," which was unwarranted by any evidence introduced; in the Petty case, the district attorney stated that the defendant knew that an endeavor to establish an alibi would be futile, and also knew that a legitimate defense of insanity would not avail him anything, when there was nothing in the evidence tending to establish the existence of such facts, and in the Cyty case, the district attorney, without any testimony warranting such conclusions, used the following language in his closing argument: "As he told me today in talking to me, he gloried in the fact that he would use a gun. He indicated that he would use a gun at the slightest provocation."
In argument a district attorney is entitled to state to the jury any fact or facts which the evidence tends to establish, or any legitimate inference which may be drawn from such evidence. State v. Robison, 54 Nev. 56, 71, 6 P.2d 433. See, also, State v. King, 35 Nev. 153, 157, 126 P. 880; State v. Lewis, 59 Nev. 262,274, 91 P.2d 820.
The eleventh assignment, that the court erred in denying the motion for a new trial, is disposed of, so far as the law is concerned, by what has heretofore been said, and so far as the facts are concerned, by the statement in the prevailing opinion herein, that "it cannot reasonably be concluded that there was no substantial evidence to support the verdict of the jury."
As the record fails to disclose any prejudicial error, the judgment and the order denying a new trial should be affirmed.
EATHER, C.J., being ill and unable to participate in the consideration of this case, the Governor designated Hon. Wm. McKNIGHT, Judge of the Second Judicial District Court, to sit in his place. *Page 668