The information is not sufficient in law and does not state facts sufficient to constitute the crime of murder of the first degree. Life or liberty cannot be taken without due process of law, and that due process requires, in the first instance, an indictment or information sufficient on its face to inform a person of common understanding what is intended thereby and the nature and cause of the accusation. This is a fundamental right and not a mere technicality. Cooper v. State, 74 So. 753, 754; State v. Villa, 102 A. 935; 31 C.J. sec. 170, p. 650; Foster v. State, 19 Ohio St. 415-417; State v. Algor, 73 A. 76; State v. Crouse, 104 A. 525; Rev. Laws of Nev., secs. 7050-7052; State v. Logan, 1 Nev. 110; People v. Gregg, 13 N.Y. Supp. 114.
The information having failed to allege the fact which brought the case within the definition of murder of the first degree, to wit, "perpetration in the commission of robbery," which the court found, it is plain to be seen that all of the facts necessary to a complete charge of murder of the first degree were not contained in the information, but only left to the merest inference.
The right to trial by jury is a part of that due process of law to which every citizen is entitled and guaranteed by both the state and federal constitutions. Amendment 14, Constitution of United States; sec. 3, art. 1, and sec. 12, art. 6, Constitution of Nevada. It will thus be observed that, in criminal cases within the class of felonies, the determination of the facts constituting the guilt of the accused, either as to the offense or as to the degree of the offense of which the defendant is guilty, is within the exclusive province of the *Page 274 jury and cannot be exercised by the court without a jury.
It was fundamental error to admit the testimony contained in the two depositions. It was a distinct violation of the defendant's right to be confronted by the witnesses against him even if the proceeding was one before the court to determine a question of fact. The record in this instance presents the same flagrant violation of both the state and federal constitutions heretofore quoted. 6 C.J., sec. 2114 and notes.
In a case like the one at bar, a special duty rests upon the court to fully and adequately protect every legal right of the accused. It is manifest that the guarantee by the constitution of the right to a speedy and public trial implies necessarily a fair and impartial trial. It implies everything in the nature of information to the accused, opportunity to make his defense, the right to assistance of counsel, and the right to a jury trial. This being so, when the accused is at the bar without counsel, the special duty to afford him counsel rests upon the court, for it is only such a proceeding as is fair and impartial and accords to the accused that due process of law to which he is entitled. Mislik v. State, 110 N.E. 551.
There was another proceeding, the propriety of which might be doubted in a case of this kind. After the plea of the defendant and the taking of the testimony, a rebuttal witness was called, whose name was for the first time indorsed on the information by permission of the court after the witness had testified. This proceeding savors of unfairness, and we think amounted to an abuse of discretion in the trial court in permitting the name to be so indorsed and the witness to testify on behalf of the state.
The court does not, in his findings of fact as contained in the record, make the finding that the crime was committed in the perpetration of a robbery, but in the judgment and sentence the court recites a fact that was neither found by him as a fact or charged in the information, as a basis of his judgment in fixing the *Page 275 extreme penalty. In this connection, let us call attention to the case of People v. Hall, 12 N.W. 665, holding that where murder is charged without specifying the degree, and the jury, having the right to find the degree, did not find it murder in the first degree, a sentence for murder in the first degree is error. The form of the information in this case is one that has been used for many years in the State of Nevada on charges of first degree murder. It is the statutory form provided for indictments. Sec. 7051, Rev. Laws, 1912, as amended. The question raised by defendant is that the information does not point out specifically that the charge is murder committed in the perpetration of robbery. This particular point was raised and disposed of in this state in the case of State v. Mangana, 33 Nev. 511. In numerous other cases similar indictments and informations have been passed on by this court. See the case of State v. McLean, 15 Nev. 345, wherein the facts and the indictment are almost identical with those in the case at bar. See, also, State v. Johnny, 29 Nev. 215; State v. Kruger, 34 Nev. 302; State v. MacKinnon, 41 Nev. 182; State v. Raymond, 34 Nev. 198.
The defendant could not have been prejudiced by not having an attorney at the time of the arraignment, for the reason that the attorney thereafter appointed could have, if he saw fit, asked permission to withdraw the plea of guilty and could have had the defendant then plead not guilty. Evidently neither defendant nor his counsel saw fit to do so.
This court cannot consider the admission of the depositions of the two witnesses, taken on the preliminary hearing, for the reason that their admission was not objected to. State v. Blaha,39 Nev. 115; State v. Lawrence, 28 Nev. 440.
Stats. 1913, p. 293, sec. 2, provides that the names of *Page 276 the witnesses known to the district attorney should be indorsed upon the information, but also provides in part: "but this shall not preclude the questioning of witnesses whose names or the materiality of whose testimony are first learned by the district attorney upon the trial." The same question here presented was presented in the case of State v. Monahan, 50 Nev. 35, and this court rule that, inasmuch as defendant was given an opportunity for a continuance, any error it committed was cured and that the indorsement of names upon the information when first learned at the trial is largely a matter within the discretion of the trial court.
Sec. 6386, Rev. Laws 1912, as amended, requires the court and not the jury to determine the degree of the crime and the punishment after a defendant has pleaded guilty; it is specific upon this point. Such statutes have uniformly been held constitutional, for, when a person pleads guilty to a charge he admits the truth of the facts charged, and the only question left to be settled is the degree of the crime and the penalty, which can be determined by the court. Hallinger v. Davis, 146 U.S. 314; West v. Gammon, 98 Fed. 426; Craig v. State, 30 N.E. 1120; State v. Almy, 28 A. 372; In Re Opinion of the Judges, 197 P. 547; In Re Watkins, 205 P. 192; People v. Roberts, 178 N.W. 692; People v. Noll, 20 Cal. 164; Dailey v. State, 4 Ohio St. 57.
The court having found the crime to be first degree murder and that there were no mitigating circumstances, it was not only within the discretion but was the duty of the court to sentence the defendant to death. People v. Paraskevopolis, 183 P. 587; People v. Manriquez, 206 P. 65; People v. Bellon, 182 P. 420; State v. Russell, 47 Nev. 271.
In this class of cases the presumption of validity attaches to the proceedings in the lower court, where there has been a plea of guilty and there is no bill of exceptions before the supreme court. State v. Arnold, 229 P. 748; State v. Bronzo, 30 Nev. 311; People v. Noll, supra.
It appears throughout the course of the trial in the *Page 277 lower court that defendant was afforded all the legal rights given him by law. The court even went farther than the law required in appointing an attorney for the defendant on the hearing to determine the degree of the crime, when defendant did not desire counsel on the arraignment.
OPINION The defendant was charged in the lower court by information with the crime of murdering one Charley Fong by stabbing him with a sharp instrument. Upon being brought into court for arraignment the court asked the defendant if he had an attorney to represent him. The defendant stated that he had no attorney, whereupon the court informed him that he was entitled to be represented by counsel and that it was the duty of the court to appoint an attorney to represent him. The defendant stated that he did not desire counsel, and consented to be arraigned without being represented by counsel. The formality of arraignment then took place, and after the information was read to the defendant and a copy thereof handed him, with the indorsements thereon, including the list of witnesses, he entered his plea of guilty to the charge. It being the duty of the court to fix the punishment and to examine witnesses, the court thereupon appointed Thomas A. Brandon, Esq., as counsel for the defendant. In due time the testimony of witnesses was taken and certain depositions were read into the record. Thereafter arguments of counsel were heard by the court. After due deliberation, the court entered an order finding the defendant guilty of murder in the first degree, and there being no mitigating circumstances, fixed the penalty at death, and accordingly made its order.
The defendant has appealed. No bill of exceptions containing the evidence is before us, only the bare court record.
1. The first point made by the defendant is that the *Page 278 information does not state facts sufficient to constitute murder of the first degree. We cannot agree to the contention. The information is substantially in the language of section 10849, N.C.L., which provides what it shall contain. The point made was raised and disposed of by this court adversely to defendant's contention in the case of State v. Mangana, 33 Nev. 511,112 P. 603, wherein it was carefully considered.
2. There is nothing to the contention that the defendant was denied a constitutional right in that he was not afforded the right of trial by jury. There was no issue to try. The plea of guilty obviated that necessity.
3, 4. It is asserted that a fundamental error was committed by the court in admitting the depositions of two witnesses, in that the defendant was entitled to be confronted by the witnesses. There is no showing that any objection was made to the admission of the depositions, hence we cannot consider the point. State v. Lawrence, 28 Nev. 440, 82 P. 614. Furthermore, the so-called depositions are nothing more than testimony of two witnesses given at the preliminary hearing, which, pursuant to statute, when duly certified to, may be read in evidence under certain conditions. We must presume that the conditions existed. No right of the defendant was violated in this connection.
5. Considerable criticism is indulged in by counsel for the defendant because of the fact that no counsel was appointed to represent the defendant until after his plea, and of the further fact that the defendant was required to plead at the time of the arraignment, instead of on a subsequent day. Section 10886, N.C.L., provides that on arraignment a defendant must be allowed further time in which to plead, if he requires it, and section 10883 provides that upon arraignment a defendant must be informed by the court of his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel, and if he desires and is unable to employ counsel, the court must assign counsel to defend him.
Both of the provisions of the statute were complied *Page 279 with, hence the defendant was not deprived of any legal right. We think, however, that in a case so serious as one involving the death penalty, and even in others in which grave consequences are involved, it is the better practice to appoint counsel before the defendant is asked to enter his plea.
6, 7. It is further urged in behalf of the defendant that the court committed prejudicial error in hearing testimony of a witness whose name was for the first time indorsed upon the information by permission of the court after the witness had testified. It does not appear that any objection was made to the procedure at the time, hence, according to strict rules governing such matters, the contention cannot now be urged; however, we do not think the defendant was denied a right materially affecting his cause, in view of Stats. 1913, p. 293, which permits the calling of witnesses not theretofore learned of. We must presume that it was such a witness that gave testimony.
8. The contention that the court in announcing its conclusion after the hearing of the evidence, wherein it adjudged the defendant guilty of murder in the first degree, failed to find that the crime was committed in the perpetration of robbery and therefore omitted a vital act which must result in a reversal of the judgment, is without merit.
Our crimes and punishment act (section 10068, N.C.L.) provides that all murder committed in the perpetration or attempted perpetration of any arson, rape, or robbery shall be deemed murder of the first degree. A jury in bringing in a verdict in a murder case in which it is contended that the murder was committed in the perpetration of robbery, under the instructions of the court, considers the evidence, and if it finds therefrom that murder was committed in the perpetration of robbery, may bring in a verdict finding the defendant guilty of murder of the first degree, without stating in its verdict that the crime was committed in the perpetration of robbery. The finding of the existence of the robbery is a prerequisite to the fixing of *Page 280 the crime as of the first degree, and hence it is not necessary that the jury state in its verdict that it finds that the crime was committed in the perpetration of robbery. The section mentioned also provides that in case of confession in open court of his guilt by the defendant the court shall proceed to examine witnesses to determine the degree of the crime. The section also provides: "Every person convicted of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury * * *; or upon a plea of guilty the court shall determine the same."
The finding by the court in the instant case that the crime was committed in the perpetration of robbery was also a prerequisite to the fixing of the crime as of the first degree, hence the finding of the court is sufficient.
9. It is the contention of defendant that the court in fixing the degree of the crime assumed one of the prerogatives of the jury, and, in effect, that the statute conferring that authority upon the court is in conflict with the constitution of the United States, in that the defendant was denied a trial by a jury. One weakness of the contention is in the fact that there was no issue to try. That was eliminated by the plea of guilty. But a conclusive answer to the contention is that the supreme court of the United States rejected the contention in Hallinger v. Davis, 146 U.S. 314, 13 S. Ct. 105, 36 L. Ed. 986. Numerous other courts have so held, among them: West v. Gammon et al. (C.C.A.) 98 F. 426; Craig v. State, 49 Ohio St. 415,30 N.E. 1120, 16 L.R.A. 358; State v. Almy, 67 N.H. 274, 28 A. 372, 22 L.R.A. 744; People v. Roberts, 211 Mich. 187, 178 N.W. 690, 692, 13 A.L.R. 1253; People v. Noll, 20 Cal. 164; Dailey v. State,4 Ohio St. 57.
10. Error is also assigned on behalf of the defendant in that the statute relative to crimes and punishments, as amended by Stats. 1919, c. 248, is unconstitutional because the title of the act is misleading and does not clearly express the object and purpose of the act, in that it relates merely to procedure in criminal cases, and not to crimes or the punishment thereof, and also that *Page 281 the act relates to more than one subject, which is not expressed in the title. This assignment of error is not discussed by counsel and hence may be held to be waived; however, we may say that a similar contention was made in State v. Davis, 14 Nev. 443, 33 Am. Rep. 563, and there held to be without merit.
No error appearing, the judgment appealed from is affirmed, and the lower court is directed to fix the time and make the proper order for the carrying into effect by the warden of the state prison the judgment rendered.
ON PETITION FOR REHEARING August 5, 1931.