By the Court,
Hawley, J.:Appellant, having beén convicted of murder in the second *212degree, appeals to this court, and claims that, upon several grounds, the court erred in refusing to grant him anew trial.
1. Did the court err in failing to give to the jury a form for a verdict of manslaughter ? We think not.
The record shows that the jury was properly instructed as to what constituted murder in the first degree, murder in the second degree, manslaughter, and, justifiable homicide; that the court also instructed the jury as follows: “ Should you find the defendant guilty, you will designate, by. your verdict, the offense of which you find the defendant guilty;” that prior to the commencement of the argument of counsel, and at the close thereof, the court asked counsel for defendant “ to prepare and hand to the court any forms of verdict defendant might desire to have the jury place their verdict in;” that defendant’s counsel prepared the form of a verdict of “not guilty,” which the court gave to the jury, that the court of its own motion, gave the form of a verdict for “guilty of murder in the first degree” and “guilty of murder in the second degree.” Upon these facts it is clear, to our minds, that the jurors were not misled, as claimed by appellant’s counsel, into the belief that if they found defendant guilty they were confined in their deliberations, as to the degree of guilt, to the two degrees of murder. It was their duty, if they believed, from the evidence, that the defendant was guilty of any offense (and they were so instructed), to determine the degree of guilt from the evidence adduced at the trial. The forms were merely given as a guide to the jury in framing their verdict, and were not intended, and could not have been considered, to limit the right of the jury to a consideration of the defendant’s guilt to the two degrees of murder. Moreover, if counsel for defendant considered it important that a form of verdict for manslaughter should be given, it was their duty either to prepare the same, or, at least, to request the court to give a form of verdict for each of the lesser degrees of guilt.
2. The court did not err in refusing to grant a new trial upon the grounds presented by the affidavits in the bill of exceptions.
The affidavits of Nagle, a person confined in jail for con*213tempt of ciourt, and of the defendant, allege that, after the jury retired to deliberate upon a verdict, they heard the jurors discuss the question of the guilt or innocence of the defendant; that they heard three of said jurors vote not guilty; that some of the jurors said that if the jury would agree to a verdict of murder in the second degree they would recommend defendant to the mercy of the court; that-they distinctly heard W. H. Woolcock, one of the jurors, say that he did not believe the defendant guilty, but if the jury would recommend the defendant to the mercy of the court he would support the verdict of murder in the second degree; that John Byrnes, one of the jurors, said to the others, in substance, that he knew the defendant went armed and was in the habit of knocking fellows over the head with his pistol; that he did not have any friend in the county and was a dangerous man. These statements are contradicted by the affidavits of the sheriff and the deputy sheriff, to the effect that it is impossible for any one in the jail, where Nagle and the defendant were confined, to distinguish any- ’ thing that is said in the jury-room.
It was the duty of the court to determine the question of veracity presented by these conflicting affidavits, and its action in this respect will not, upon the showing made, be disturbed.
The attorneys for the defendant state in their affidavit “that the facts set out in the fifth ground of motion for new trial are, each and all, true, substantially as therein set out.” The facts stated in this ground are as follows: “E. P. Torrey is, and at all times since said indictment was, professedly a warm friend of defendant; was called regularly as a juror in the case; was examined on his voir clire by both parties and passed, and was excused peremptorily by plaintiff. W. H. Woolcock, one of the jurors who tried this case, was, at the time the jury was impaneled, in .the employ of said Torrey as foreman in a mine; had been so employed for several months, and ever since said trial has been in said employment. Within one or two days before the final submission of the case to the jury, by the court, the sheriff informed said jurors, and each of them, that it was rumored in *214town that said Torrey bad a conversation with said Woolcock at the hotel upon the occasion of said jurors taking supper there. John Byrnes, one of said jurors, informed the court in open court, of said alleged rumors, and asked that the matter might be investigated. The sheriff stated in open court that he had héard such rumors, and, so informed the jury.”
These affidavits, in so far as they state that the sheriff informed the jurors of the rumor, seem to be denied by the sheriff, who states, in his affidavit, that he “did not, during the trial of said case, speak to said jurors, or either of them, on the subject of said case, nor allowed any other person to speak to said jury, or either of them, on the subject of said case.”
But how could the rumor have influenced the jury to the prejudice of the defendant? His counsel argue that the rumor was started for the purpose of intimidating the juror Woolcock, and to compel him to vote for a verdict of guilty through fear that if he voted otherwise people would say that he had been improperly influenced by Torrey. The natural presumption is that every juror is a man of ordinary intelligence, and that he acts conscientiously in the performance of his sworn duty. The affidavits of Nagle and the defendant being disregarded, there is nothing left in the record to show that Woolcock had any hesitation in voting for a verdict of guilty, or that he was in any manner influenced by the rumor of the reported conversation with Torrey.
The rumor was, at most, of a very indefinite and uncertain character. It was not reported that Torrey and Wool-cock had any conversation about the case. That is left as a matter of inference. It is not even claimed that there was any foundation for the rumor, for there is no attempt to show, as a matter of fact, that any conversation ivhatever actually occurred between Torrey and Woolcock after the jury was impaneled to try the case. Counsel simply claim that the rumor was started for a sinister purpose, and that it was used as a scarecrow to frighten Woolcock and keep him from voting for a verdict of not guilty.
*215The record fails to sustain tins position. It is utterly untenable. It would be unreasonable for us to presume that any juror was improperly influenced by such a vague rumor.
3. The court did not err in giving the instruction, as modified, relative to the presumptions of the jury upon the testimony of the witnesses Campbell, Weill, and Mohler.
The modification was unnecessarily lengthy, and contained a useless repetition of words; but we are unable to see how the jury could have been misled thereby to the prejudice of the defendant. It was the duty of the jury to determine the question whether, at the time of the homicide, the deceased was standing up or lying down, from all the facts and circumstances surrounding the case, and not to draw any presumption from the mere fact that the witnesses Campbell, Weill, and Mohler did not,’ in so many words, directly state that they did not see the deceased standing up.
4. The action of the court in refusing to give the instructions “ E” and “K,” asked by defendant’s counsel, is sustained, upon the ground that the court, of its own motion, gave proper instructions upon the subjeet-anatter embraced therein. (State v. O'Connor, 11 Nev. 416; State v. Rover, 13 Id. 18; State v. Hamilton, Id. 386.)
The judgment of the district court is affirmed.