The appellant was indicted for murder, and convicted of manslaughter. It is objected that the verdict is contrary to the evidence. In that there is conflict; and if it were permitted to review and weigh the, evidence in a criminal case — which is yet an undecided point in this court — still in the case of a substantial conflict, the verdict of the jury would not be disturbed.
It is urged that the verdict upon its face shows that the jury was prejudiced to appellant’s injury. This is the verdict: “We, the jury in the above-entitled ease, find the defendant guilty of manslaughter, with the recommendation to the court that the defendant receive the full extent of punishment allowed by the law for this crime.” That this latter clause of the verdict is an attempted invasion of the powers of the court is evident; but it is, and must be, without injury, unless it is shown that the court was influenced thereby, which is not pretended. It is not unusual for juries to express opinions somewhat beyond their powers, but though irregular, it is in most cases, as here, rather a harmless eccentricity.
It is claimed by appellant that the court erred in charging the jury thus: “ If the defendant and deceased were engaged in a violent struggle, in which the deceased repeatedly struck the defendant upon the head with a champagne bottle- — -that the deceased had made the first assault upon defendant in retaliation of offensive and insulting language, such struggle and striking of defendant would be deemed a sufficient provocation in law to excite an irresistible passion in a reasonable being ; and if the jury believe that such an irresistible passion was actually excited in the breast of de-, fendant — that no interval occurred for the voice of reason and humanity to be heard, and that immediately, without malice or revenge, and simply in obedience to such sudden, violent impulse of *57passion, he stabbed Glennon and killed him, such killing would not amount to more than manslaughter.” Upon this, counsel for appellant argues: “ The instruction leads to a verdict of manslaughter, when the premises given should lead conclusively to a verdict of justifiable homicide.”
The instruction complained of in nowise leads to a conviction of manslaughter. It simply withdraws from the jury all considerations as to whether any crime had been committed by the defendant greater than that of manslaughter. Whether he was guilty of that offense or not was clearly left for them to determine. There is no statement in it, that the jury would be justified in finding the defendant guilty of manslaughter or any other crime. So it was held respecting a similar instruction in'the case of the State of Nevada v. William Little, 6 Nev. 281.
The judgment must be affirmed; also the order denying a new trial. It is so ordered.
Garber, J. having been of counsel, did not participate in the foregoing decision.