Opinion
No. 2899
August 6, 1930.
APPEAL from Sixth Judicial District Court, Humboldt County; L.O. Hawkins, Judge.
J.W. Dignan, for Appellant:
Merwyn H. Brown, District Attorney, M.A. Diskin, Attorney-General, and Wm. J. Forman, Deputy Attorney-General, for the State:
Appellant assigns first as error on this appeal the insufficiency of the evidence to support the verdict of the jury.
There is in the record hundreds of pages of testimony in the form of circumstantial evidence introduced for the purpose of proving that Glenn A. Trousdale, the deceased codefendant, actually committed the alleged crime charged in the indictment, and practically all of the evidence in the case is directed to the point and for the purpose of proving the guilt of Glenn A. Trousdale. We find not a scintilla of evidence, either direct or circumstantial, tending to prove anything against the appellant in connection with this alleged crime, saving and excepting the admitted fact that the appellant was present at the time and place of the commission thereof, and the deceased's answer to one question in each of the dying declarations of date July 27 and August 9, 1929, in which deceased stated that at the time he received the mortal wound this appellant was lying on or across his knees, holding him. And even this statement is flatly contradicted by deceased himself, not once but more than once, as shown by the record; and on its face and under all of the circumstances it clearly appears to be improbable as well as false and impossible, and even if admitted and conceded by this appellant it would not be sufficient, standing alone and unaided by any other evidence of facts or circumstances, to support a conviction of the appellant. If circumstances which are inconsistent with each other will not warrant a conviction (12 Cyc. 488-489), what must be said of direct evidence which is inconsistent and in conflict? Not conflicts between the witnesses for the state and the defendant, but conflicts in the state's own proof. All of the evidence and all of the circumstances corroborate and support the conclusion as to the innocence of the defendant. See Jones v. State, 90 Ala. 628; State v. Diebolt (Kan.), 37 P. 992; Hinsley v. United States (Okla.), 98 P. 363; State v. Newton (Wash.), 81 P. 1002; Bartelle v. United States (Okla.), 100 P. 45; Backman v. People (Colo.), 9 P. 42.
The court erred in admitting in evidence the alleged dying declarations of the deceased, appearing in the record as state's exhibits Nos. 10 and 11. Defendant contested the introduction in evidence of these alleged dying declarations, upon the grounds and for the reasons that deceased was incompetent and unable from his lack of mental capacity to be a witness at the time of the making of the said declarations. In offering them in evidence, the burden was upon the state to prove by a preponderance of the evidence that the declarant was of sound mind and mentally competent to be a witness at the time of the making of the declarations. If deceased was incompetent, and by this we mean in such a condition mentally as a result of his injuries that he would have been unable to appear as a witness at the very time of the making of the declarations, then his extra — judicial statements should have been rejected. It is conceded, of course, that deceased at all times, from the time of his injury to the time of his death, was suffering from a serious injury to his brain. We submit that the existence of this condition alone was sufficient to raise in the mind of any unbiased person a serious doubt as to the mental capacity of the deceased at any time after the brain injury. Each of the three witnesses for the state who were present at the time of the making of the alleged dying declarations gave as his opinion that deceased was mentally competent at the time of the making of the declarations. But this evidence was sharply contradicted by the surrounding circumstances, by the witnesses themselves upon their cross-examination, by the context of the dying declarations themselves, and by the evidence of physicians testifying on behalf of the defendant, as well as the statements of facts upon which the state's witnesses based their opinions as to the competency of the deceased at the time of the making of the declarations. We submit that the statements themselves furnish quite conclusive evidence of the incompetency of the deceased at the time they were made. The form of the preliminary questions is leading and suggestive of the answers desired, and the answers themselves demonstrate the condition of a semiconsciousness, in the giving of the simple answers of "yes" and "no," as suggested by the questions asked, and not one answer accompanied by any sort of explanation. Then, after these few preliminary questions, about fifteen short questions are asked, all in leading and suggestive form, and short, incomplete, inconsistent, contradictory and implausible answers given by deceased, containing very slight, if any, explanations or narrative of the happenings at the time of the shooting.
The court erred in restricting the cross-examination of the witness Brown, and in making the following order relative thereto, of its own motion and not in response to any objection, during the course of an otherwise proper cross — examination of the witness: "Mr. Dignan, at this time, so you may not consider the court as taking you by surprise, I want you to finish the cross-examination of this witness by 4:30. It is 4:10. I am going to put an end to this sometime." To which order of the court the defendant duly excepted.
The court erred in its instructions to the jury and particularly in the giving of instruction No. 28, wherein the court instructed upon the weight of the evidence. "It is error for the court to single out certain testimony in the case and to instruct the jury that this testimony is entitled to very great weight or little weight, or to otherwise instruct as to its weight." 12 Cyc. 597; People v. Amaya (Cal.), 66 P. 794; People v. Grimes (Cal.), 64 P. 101; State v. Pepo (Mont.), 59 P. 721.
The court erred in overruling defendant's motion for a new trial, upon the grounds stated in the motion, and particularly upon the grounds of the insufficiency of the evidence to support the verdict. The trial court, on the motion for a new trial, refused to weigh the evidence and to pass upon this ground of the motion. As we view the law, this position taken by the trial court is not only a plain abuse of the court's discretion, but a positive refusal on the part of the trial court to perform a duty enjoined upon him by the laws of the State of Nevada. In support of this statement we rely on the following authorities: Piel v. People (Colo.), 119 P. 687-690; Hogan et al. v. Bailey (Okla.), 110 P. 890, 892; People v. Mock Yick Gar (Cal.), 111 P. 1039; People v. Knutte (Cal.), 44 P. 166; People v. Chew Wing Gow (Cal.), 52 P. 657.
The court erred in overruling defendant's motion for a new trial upon the grounds and for the reason that the jury received evidence out of court. This assignment is based upon the proceedings directing a view of the premises and the conduct of the jury upon such view. In pursuance of the order, the jury visited the premises where the alleged crime was committed, in charge of the officer appointed by the court, and, after viewing all of the said premises specified in the order of the court, the jury proceeded to make independent investigations in the neighborhood, in which they both viewed and investigated premises not specified in the court's order for the view. Plainly, by these investigations the jurors determined for themselves, independent of any sworn testimony in the case, what conditions existed at the time of the alleged shooting. People v. Conkling (Cal.), 44 P. 314; State v. Lopez, 15 Nev. 407; 16 R.C.L. sec. 115, p. 304; State v. Perry (N.C.), 61 Am. St. Rep. 683; Shultz v. Bowers (Minn.), 47 Am. St. Rep. 630; Peppercorn v. Black River Falls (Wis.), 40 Am. St. Rep. 818.
We respectfully submit that by reason of the errors the verdict and judgment in this cause should be vacated and set aside, and this cause remanded for a dismissal or a new trial.
The appellant was charged in the lower court with aiding and abetting one Glenn A. Trousdale in the murder of one Rollin Watts. It was, therefore, incumbent upon the state to establish: First, that Glenn A. Trousdale murdered Rollin Watts, and, second, that appellant aided and abetted in the commission of the crime. It is the purpose of respondent to here point out as briefly as possible how the evidence conclusively establishes the charge made against appellant.
The circumstances all point to the fact that Rollin Watts was shot by someone other than himself. The evidence showed that the bullet hole was in the top of his head, practically on the middle line of his skull and on a line drawn from ear to ear. Professor Heinrichs testified that there were no powder burns on the sheets or pillow cases of the bed on which the deceased was found, that in his opinion the deceased had been shot while lying in bed, and that the window directly back of the head of the bed was open. A pistol was found alongside of the bed and a portion of the bullet was found on the sill of the screen porch near the foot of the bed. There was also a mark near the ceiling of the screen porch above the foot of the bed, showing that this portion of the bullet had struck this spot and dropped to the sill. There were no powder burns on the body of the deceased. The absence of powder burns, the flight of the bullet, and deceased's apparent position in bed are plainly indicative that the fatal shot was fired by someone else at a short distance from the deceased, and that this person was probably in the next room and fired through the window at the head of the deceased's bed.
The evidence further shows that just prior to the shooting neighbors heard two men and a woman talking in loud tones, heard one man's voice say "Let me go," or "Let go," and that the shot followed soon afterwards. This evidence would indicate that there was some other man in the Watts's home just prior to the shooting, that Mrs. Watts was awake at the time, and that one of the men was being held just prior to the shot being fired. Immediately after the firing of the shot a woman's voice was heard saying: "Why did you do it?" Noises were heard in the rear of the Watts residence, which sounded as if someone were crawling over the shed in the back. Shortly thereafter Mrs. Watts emerged from the rear of her home and hesitated for a short time before going to the home of the doctor, near by. This evidence would indicate that the third person left the Watts home immediately after the shooting and escaped by crawling over the shed in the back of the house, and Mrs. Watts's conduct in hesitating before going for a doctor would indicate that she was giving this person an opportunity to escape before she summoned aid for her wounded husband.
The evidence further shows that although Mr. and Mrs. Watts had only been married a short space of time they had agreed to get a divorce. That at about 3:25 on the morning of the shooting a neighbor of the Trousdales heard someone leave the Trousdale home and walk in the direction of the Watts home. That shortly after the shooting Mrs. Watts desired to telephone to Glenn A. Trousdale, and that after her husband was taken to the hospital and the doctors had performed an operation she went immediately to Trousdale's home. These facts alone present strongly a chain of circumstances against Mrs. Watts and Trousdale.
However, the exact events which happened in the Watts home at the time of the shooting are not left to speculation. Watts did not die immediately, but lived for several months and was able to and did make a dying statement in which he told of awakening that morning and seeing Trousdale enter his room, approach his bed and pick up a pistol near the head of the bed, on the floor; that Mrs. Watts held him while this was going on; that Trousdale went in the front door of the house, into the bedroom adjoining, and shot Watts by firing through the window that was at the head of Watts's bed; that while the shooting took place Mrs. Watts was lying on Watts's knees, holding him. These facts establish beyond any doubt that the shooting was done by Trousdale, and that Mrs. Watts throughout aided him in the killing.
This court has laid down the rule that it will uphold the verdict of the jury where there is any substantial evidence to support it. State v. Hunter, 48 Nev. 367; State v. Buralli, 27 Nev. 41.
In the case of People v. Ammya, 66 P. 794, it was held that a dying declaration, wherein the deceased pointed out the man who committed the murder, was alone sufficient to sustain the verdict of the jury. In the case at bar the record contains not only the dying declaration of the deceased, but also a strong chain of circumstances, all pointing to the truth of his assertions.
The testimony of S.G. Lamb, Dr. C.E. Swezy, the attending physician, Nora Forde, Lillie Gates and Merwyn H. Brown showed that the deceased was rational, sane, understood what was said to him, and was competent at the time he made the two dying statements. These witnesses had ample opportunity to see the deceased and to tell from his actions and words the condition of his mind at the time. The testimony of Dr. E.D. Giroux, on behalf of defendant, was based on observations made after the death of the deceased, and he stated: "My opinion is that the man could not have been mentally clear, but a positive opinion I could not give unless I had applied further tests and been more in contact with the patient." Under this testimony the statements of deceased were clearly admissible, and it was for the jury to take into consideration the testimony of the witnesses as to the deceased's mental condition at the time the statements were made. State v. Davis, 46 S.E. 722.
The fact that the declarations were made in answer to questions did not affect their validity. State v. Foot You, 32 P. 1032; Sparks v. State, 171 P. 1182.
The course and extent of cross-examination is within the discretion of the trial court. Immaterial testimony and repetition after the field has been covered may be stopped by the court of its own motion. State v. McConville, 209 P. 987; Hopkins v. State, 130 P. 1101; Gallatin v. Corning I.M. Co., 126 P. 864; First National Bank v. Shank, 128 P. 56; People v. Tou Jue, 225 P. 759; Reynolds v. Pacific Car Co., 134 P. 512; State v. Haggard, 134 P. 514; Wirth v. Richter, 126 P. 987; Van Wyk v. People, 99 P. 1009; State v. Ross, 94 P. 270; People v. Smith, 98 P. 546; People v. Sichofsky, 208 P. 340; State v. Allen, 160 P. 795; State v. Mox Mox, 152 P. 802.
There was no error in the court's giving instruction No. 28, and appellant cannot at this time complain of it for several reasons. First, no objection was made by the appellant in the trial court to the giving of this instruction; and this court has held in the case of State v. Cudney, 47 Nev. 224, that: "Where no objection was interposed to an instruction and no advantage being taken of it on appeal, it will not be examined." Secondly, the effect of this instruction was to limit, if anything, the effect of the expert testimony offered by the state. The instruction would thus, even if it had been erroneous, be an error which reacted to the advantage of appellant and not to her detriment. A misdirection to the jury by the trial court must, of course, prejudice the defendant. Sec. 7469, Rev. Laws; State v. Willberg, 45 Nev. 183. However, the giving of the instruction could not have been error in any event, for it is a proper instruction. State v. Jukich, 49 Nev. 217; Epps v. State, 1 N.W. 499; State v. Malloy, 78 S.E. 995.
In this state, by reason of the provisions of sec. 7197, Rev. Laws of 1912, the jury is made the sole judges of the facts. To construe the statute governing motions for new trial so as to place the judge of the court in the position of a thirteenth juror would be directly contrary to the provisions of this section. The following cases show the later trend of authority upon this point: People v. Breacker, 20 Cal.App. 205, 127 P. 666; People v. Bonzani, 141 P. 1062; People v. Mallicoat, 149 P. 1000.
"A view of the premises is not taking evidence in the case. It is a means provided by statute to enable the jury more satisfactorily to weigh the evidence given in court." State v. Hartley, 22 Nev. 342; State v. Clarke, 48 Nev. 134.
OPINION
In September, 1929, Rosa Watts was charged in an information filed in the court below with shooting and killing Rollin Watts, nicknamed "Doc Watts," her husband, in Winnemucca, Humboldt County, Nevada, on the 18th day of June, 1929. Although the proof shows the accused to have been an accessory to the homicide, she was informed against as a principal because the distinction between principal and accessory is abrogated by statute. Section 7071, Revised Laws.
After an extended trial the jury returned this verdict:
"We, the jury in the above-entitled cause, do find the defendant, Rosa Watts, guilty of murder in the first degree, and do hereby fix the penalty at life imprisonment."
Thereafter, the accused filed her notice of intention to move for a new trial. Subsequently, the motion was denied and overruled. Thereupon, judgment was pronounced upon the verdict and the accused was sentenced to confinement in state prison for life. Thereafter, the accused perfected her appeal to this court from the judgment and from the order denying and overruling her motion for new trial.
The first and principal ground alleged for the reversal of the order denying the motion for new trial is the insufficiency of the evidence to support the verdict.
The record is voluminous and to set out, or even attempt to review the testimony of the numerous witnesses in detail, would extend this opinion to an unreasonable length. Therefore, a summary of the facts and circumstances attendant upon and surrounding the alleged homicide stated in narrative form must suffice.
The record discloses that Rosa Watts and Glenn A. Trousdale intermarried in the year 1914. Their marital domicile for the greater part of their married life was in Winnemucca, Humboldt County, Nevada, where they purchased a home situate on the corner of West First Street and Aiken Street. In the rear of the residence were six cabins owned and rented by them.
On May 4, 1929, Rosa Trousdale was divorced from her husband. At the time of the divorce the spouses entered into a property settlement, whereby the husband was to receive certain personal property and the wife a deed to their real estate upon the payment to the husband of $2,500, payable in monthly installments of $60 per month. The contract and deed to the property was placed in escrow in the First National Bank in Winnemucca. A few days thereafter the divorced husband and wife, together with Rollin Watts, went to the First National Bank and Rollin Watts then and there paid Glenn A. Trousdale the sum of $2,500, in full of the property contract settlement, and Rosa Trousdale received the deed then in escrow and had it placed upon record.
On the 11th day of May, 1929, Rosa Trousdale intermarried with Rollin Watts.
On the morning of June 18, 1929, at or about 3:30 o'clock a.m., Rollin Watts was found on the front porch of his residence in a bed occupied by him and his wife with a bullet hole in the top of his head, practically on the middle line of the skull and in line with a line drawn from ear to ear. He was removed to the county hospital in Winnemucca, where he died on the 14th of August, 1929, from the effects of the wound received on June 18, 1929.
Caledonia Swezy, a witness for the state, testified that on the night of June 18, 1929, she was awakened by loud and angry voices, men's voices and a woman's voice; that she heard a pleading voice say: "Let go," or "Let me go"; that she heard a shot and a groan or moan; that she heard a woman say: "Why did you do it?" several times, and also exclaim: "Oh, Doc." The witness testified that after hearing the shot she saw Rosa Watts come out of the back door of the Watts residence and stand as if hesitating in the back yard and then turn as if going back into the house, and then come out of the back on First Street and go across the street to the Swezy residence and call Doctor Swezy for aid.
Doctor Swezy, a witness for the state, testified that when he arrived at the Watts residence he found Rollin Watts lying on the bed on the front porch; that Rosa Watts at the time said to him that Rollin had attempted to commit suicide. He further testified that when he came upon the porch Rosa Watts went over to the bed and said: "You did it yourself, Rollin. Tell him you did it yourself, didn't you." The witness testified that he found a .38 caliber Iver Johnson pistol lying beside the bed near the head of the bed.
Frank Diehl, a witness for the state, testified that he lived in the Bergwin cabin in the rear of the Watts residence; that on the morning of the 18th of June he heard what sounded to him to be two men and a woman in an argument and that within a short time he heard a shot and then heard a woman say: "Oh, my God, why did you do that?" and that within a short time he heard a noise as if someone was crawling over a fence or shed in the rear of the Watts residence.
E.L. Bogart, a witness for the state, testified that he was sleeping in cabin No. 5 in the rear of the Watts residence on the morning of the 18th and that he was awakened by a noise, and that within a short time he saw Rosa Watts cross the street from the rear gate to the Swezy residence, and that a few minutes before seeing Rosa Watts crossing First Street he heard a scraping noise like someone drawing themselves up over a shed or fence in the rear of the Watts residence about twenty feet from where he was sleeping, which sounded to him as if someone was crawling over the back coal shed.
Mrs. Laura Campbell, a witness for the state, testified that on the morning of June 18th, about 3:25 a.m., she heard someone close the door of the residence of Mrs. Ella Trousdale, the mother of Glen A. Trousdale, where the latter was living at the time, and she heard the front screen door slam and someone walk to the front gate and someone walk down in front of her house, which was in the direction of the Watts residence.
In the forenoon of June 18th Erling Prout, deputy sheriff visited the Watts residence to make an investigation of the shooting, where he was met by Rosa Watts who, in response to questions put to her by the witness Prout, stated that "Doc" had shot himself, meaning the deceased, and upon further inquiry she produced the gun from a dresser drawer and gave it to the witness. The gun contained four loaded shells and one empty shell. She stated to the witness that "Doc" took the gun to bed with him; that there was someone prowling around the night before and "Doc" said he was going to take the gun to bed to protect him. On another occasion at the Watts residence Rosa Watts stated to the witness Prout that "Doc" was out riding in the afternoon and in the evening that they both went riding after supper and got back about half past eight; that "Doc" went to bed somewhere around nine o'clock and she a little while afterwards; that they talked a bit and that she went to sleep and she never woke up until the shot woke her up in the morning. She stated that when the shot woke her up she jumped out of bed, looked around, saw the blood on "Doc" and that she ran to the telephone, and could not get any answer and then went out the front door and beat it across the street to get Doctor Swezy. She said she got the doctor and the doctor came over and afterwards Mr. Spinner and Mrs. Spinner and Mrs. Swezy came over and that "Doc" was taken to the hospital.
On cross-examination the witness Prout stated that he visited Rollin Watts at the hospital on the 19th and went there very nearly every day to see him. The first conversation the witness had with the deceased was on the 20th. On the 20th the witness visited Watts in response to a message delivered over the 'phone by the nurse that Watts wanted to talk to him. The conversation between them was substantially as follows:
"Doc, do you know who I am. A. Yes.
"Q. I am here to help you. If there is anything possible for me to do let me know. Doc, did you shoot yourself? A. No.
"Q. Do you know who did shoot you? A. Yes.
"Q. Who was it, Doc? A. Glenn Trousdale.
"Q. Did you see him? A. Yes.
"Q. Where was Glenn? A. ______. Ice water.
"Q. Did Rose shoot you? A. No."
This conversation was transcribed by the district attorney and was admitted in evidence on the request of counsel for the defendant.
About the hour of seven o'clock on the evening of the 20th District Attorney Brown, Doctor Swezy and the witness Prout visited Watts. The witness Prout testified that on this visit he wrote out some questions and asked them to "Doc," to which questions "Doc" wrote his answers. The questions and answers were as follows:
"Q. Who shot you Doc? A. Glen Trousdale.
"Q. Did you see him? A. I did.
"Q. Did you ask for mercy? A. I did, yes.
"Q. What room was he in when shot? The answer to this question is an unintelligible scrawl.
"Q. Do you realize you are seriously ill? A. Yes.
"Q. Where was Rose? A. In answer to this question Watts wrote an answer in his own handwriting — three plain and one unintelligible word as follows: In bed o-r-e-n-t-o-r-e back. It is read by counsel for the accused as intended to mean, `In bed over in back.'
"Q. Were you in bed when shot? A. Yes."
The witness testified that Watts was quite weak, and when he made an attempt to answer the last question he laid the pencil down. The paper which contained the questions and answers was admitted in evidence upon the request of the counsel for the defendant on the cross-examination of the witness Prout.
The witness stated that on the 22d he had a telephone call from the nurse at the hospital stating to him over the 'phone that she was ordered out of the room and that the witness, together with the district attorney, went to the hospital, where they found Rosa Watts in Rollin Watts's room; that Mrs. Watts tore up some writing that she had made upon a paper and that the district attorney asked what it was on the paper and she mumbled something that the witness did not understand. The district attorney asked for the paper, but she kept tearing it up and that the witness lead her out of the room into the hall and in so doing she turned around to get her hat and she stepped over and dropped the paper into the toilet. The district attorney reached down and got the paper and she got her hat and came down with the witness to the sheriff's office.
Thereafter Rosa Watts and Glenn A. Trousdale were charged with the crime of assault with intent to kill and were placed under arrest on the evening of the 20th.
On July 18, 1929, Watts had recovered sufficiently so that he was able to be brought before the grand jury. A few days later he became worse and gradually began to sink. On July 27, 1929, a statement from him was taken which was reduced to writing, consisting of questions and answers propounded to him by the district attorney and signed by the deceased, and was introduced and admitted in evidence on behalf of the state as a dying declaration. The statement reads as follows:
"Brown: Good morning, Doc, how do you feel today? A. No good.
"Brown: Do you think you are getting better?
"Watts: No, I am worse.
"Brown: Do you feel that you are going to get well?
"Watts: No, I do not.
"Brown: Do you feel that you are going to die?
"Watts: Yes, I do.
"Brown: If you feel that you are not going to get well, would you like to make a statement of the circumstances connected with the shooting?
"Watts: Yes.
"Dr. Swezy: Yes, Doc, you are in a serious condition, and it does not look like you would recover.
"Watts: I know it.
"Brown: In making this statement do you make it realizing that you are failing in health, and that you are about to die?
"Watts: I do, yes.
"Brown: Do you make this statement freely and voluntarily?
"Watts: Yes, I do.
"Winnemucca, Nevada, "Time, 10:50 a.m. July 27, 1929. "Humboldt County Hospital.
"I, Rollin Watts hereby make this statement with regard to the gunshot wound that I received on the morning of June 18th, 1929, realizing that I am failing in health and that I am about to die, and I do so freely and voluntarily.
"Do you know who shot you, Rollin?
"Yes.
"Who did shoot you?
"Glenn Trousdale.
"Did you see Glenn Trousdale that morning?
"Yes, I did.
"How did he come in the house?
"He came in the front porch screen door.
"Did you hear him?
"Yes, I heard a noise, I heard him unlock the door.
"What did you see?
"I looked over the curtain and saw him come to my bed on the porch.
"When he came to your bed what did he do then?
"He reached down and picked up the pistol at the head of the bed on the floor.
"Where did he go then after he picked up the pistol?
"He went in the front door into the front room and then I heard him go into the bedroom behind me.
"What happened then?
"I heard a shot, I was shot then.
"When you were shot, Rollin, how was the window behind you.
"It was up, open.
"Where was Rosa when you were shot?
"She was in bed, laying on my knees holding me.
"Did you take the pistol to bed with you the night before when you went to bed?
"Yes, I got it from the dresser in the bedroom and put it under the bed at the head of the bed on the floor on the porch.
"Is that the pistol that Glenn picked up and took with him when he went into the bedroom?
"Yes.
"Why didn't you get the pistol?
"Because Rosa was laying on my knees, holding me.
"Did you try to get the pistol?
"Yes.
"If she had not been laying on your knees could you have gotten the pistol?
"Yes, I could.
"I have made the above statement realizing that I will not get well and in face of impending death.
"The above statement is a true and correct statement of the circumstances at the time I was shot.
"Rollin Watts.
"Witnesses:
"Chas. E. Swezy, M.D.
"S.G. Lamb.
"Nora Forde, R.N.
"Merwyn H. Brown.
"Brown: Can you sign this statement now Doc?
"Watts: Yes, I will try.
"Brown: Now, Doc, before signing this statement, do you do so realizing that you will not get well and in face of impending death?
"Watts: Yes, I do.
"Brown: Is this statement a true and correct statement of the circumstances at the time you were shot?"
Thereafter, Watts continued to grow worse and on certain days was unconscious. On the afternoon of August 9, 1929, a second statement was taken in which Watts verified and confirmed the first statement as a whole. This statement was also introduced and admitted in evidence as a dying declaration. The statement follows:
"Winnemucca, Nevada, "4:45 p.m. August 9, 1929.
"Q. How are you today, Doc? A. Bad.
"Q. Do you still feel that you are going to die? A. Yes.
"Q. Do you remember making a statement about two weeks ago in regard to your gunshot wound? A. Yes.
"Q. Would you like to make a statement again, now Doc? A. Yes.
"Q. Do you make this statement realizing that you are dying and that will not get well? A. Yes.
"Q. Do you make this statement freely and voluntarily? A. Yes.
"Q. I will read you the statement you made then and will you tell me if it is your own statement now and true and correct? A. Yes."
The statement, as previously made was then read to Watts and affirmed by him as being a true and correct statement of the circumstances at the time he was shot.
Referring to the nature of the wound as relating to the question of suicide, Doctor Swezy testified that on the morning of the 18th of June, about the hour of four o'clock he made a superficial examination of the deceased. He found a bullet hole in the top of the head of the deceased and the frontal part of the forehead swollen, a broken bone under the skin but the skin was not perforated. Afterwards he found another hole after he was taken to the hospital. On his examination at the hospital the witness stated that he found no powder marks, powder burns or scorches. Witness stated that the wound was on the summit of the head on a line drawn from one ear to the other. The entrance was a trifle to the right, then at left over on the middle line and then down an inch and a quarter to the front, and a trifle to the right was a little opening with a little tab of scalp hanging to it. The witness testified that he made an incision of about four inches right along over the top of the head and retracted the tissues so that he could explore the condition and take out the small pieces of bone and any tissues or anything that might have to come out.
The witness testified that after the death of the deceased he performed an autopsy upon his body and that as the result of the investigation he found that the bullet had gone through the right lobe of the brain. In one place it touched over on the left lobe a little and that in the opinion of the witness the cause of the death was infectious meningitis caused by the introduction of an infection caused by a bullet wound in the top of the head of the deceased.
Professor Edward O. Heinrich, an expert witness on the part of the state, examined the pistol and shells in it, which was found beside the bed. He also examined the pillow and lower sheet covering the bed. He testified that he failed to find any evidence of powder marks or burns upon any of the bedclothing in evidence. He further testified that the bullet removed from the head of Watts and the portion found on the sill of the screen porch was a .38 caliber S. W. bullet and exactly like the loaded bullets found in the pistol, and that the bullet had been fired from a pistol of the same type as the one found beside the bed. He testified that from an examination of the blood stains on the pillow slip and pillow, the sheet and corner of the sheet and the window-pane back of the bed and the bullet marks found near the ceiling at the foot of the bed where the other portion of the bullet had hit, and the nature of the wound, it was his opinion that Watts was lying on the pillow at the time he was shot and further that the window at the rear of the bed was open about eight inches.
Glenn A. Trousdale died on the 25th day of September, 1929. After a preliminary examination on that date, to wit, September 25, 1929, an information was filed against Rosa Watts charging her with murder in the first degree.
1. The record discloses that when the state offered in evidence the two dying declarations of the deceased, counsel for the defendant objected to their admission in evidence upon the ground that no proper foundation had been made, in that the testimony did not show that the purported statements were dying declarations or that the statements were honestly or fairly taken, and there was no evidence to show that the statements were taken when the deceased believed, or knew, or thought that he was going to die, and that he had abandoned every hope of recovery, and further that the statements were not the statements of Rollin Watts, or that he was conscious of the fact or any of the facts attempted to be set out in the alleged dying statements. In support of this objection, counsel on both sides were privileged to introduce testimony of witnesses in the presence of the jury. Upon the conclusion of the testimony, the declarations of the deceased were admitted in evidence as dying declarations. We find no error in their admission.
It is argued that the dying declarations of the deceased were insufficient to warrant or sustain the conviction of the defendant, because of the contradictory, conflicting and inconsistent statements of the declarant. In support of this contention it is pointed out that the deceased in his dying declarations stated in substance that at the time of the shooting the defendant was in bed lying on his knees holding him, and that he did not get the gun because the defendant was lying on his knees holding him. Whereas, in his prior statements made to the witness Prout, the declarant stated that at the time of the shooting Rosa was in bed over back, meaning that she was lying in bed back of the deceased at the time of the shooting.
2, 3. We are in accord with the rule established by the great weight of authority that dying declarations are open to impeachment upon any ground and by any means which the law regards as legitimate to employ to impeach a living witness and discredit his testimony. Liddell v. State, 16 A.L.R. 405, note. But it is equally well settled that, if dying declarations have been admitted in evidence, the weight to be given them is a matter exclusively for the jury. 3 Wigmore on Evidence (2d ed), sec. 1446. It is the duty of the jury to weigh all the declarations and to determine which, if either, is to be believed. They are the judge of the credit as in the case of all other testimony by all the circumstances attendant upon and surrounding the declarations.
It was the contention of the defendant throughout the trial that the deceased shot himself with suicidal intent. As a witness in her own behalf, she, in detail, gave her reasons for so testifying from the acts, conduct, health and the mental condition of the deceased at the time of the shooting, and his previous threats to commit suicide because of the consciousness of his wrong done in breaking up the home of the Trousdales. Her testimony in this regard, however, was not persuasive.
Further, the evidence of the nature of the wound as related to the question of suicide tends to refute the testimony of the defendant that the deceased shot himself. It was for the jury to consider and determine the question.
4, 5, 6. Counsel for the defendant also contend that, aside from the conflict in the evidence and the utter incredibility of the dying declarations and the inherent improbability that the wife of the deceased aided and abetted in the shooting that resulted in her husband's death, the jury's determination of the defendant's guilt is not conclusive upon this court and the judgment should be reversed. The answer to this question is that the weight and sufficiency of the evidence in homicide cases as in other criminal proceedings are questions for the jury and their verdict shall not be disturbed on appeal if there is evidence to support the verdict. Under our constitution, article 6, section 4, and Revised Laws, section 7287, evidence cannot be weighed by this court if there is substantial evidence to support the verdict. State v. Boyle, 49 Nev. 386, 248 P. 48.
7, 8. We agree with counsel for the defendant that one may not be convicted upon mere suspicion or upon evidence which leaves the question of criminal agency conjectural, if not reasonably doubtful, but from all the evidence we are justified in disposing of the main contention of the defendant, that the evidence is of such character that the jury could say from it that in their judgment no reasonable doubt of the defendant's guilt existed.
9. It is contended that the court erred in instructing the jury (instruction No. 28) relating to expert testimony, which reads as follows:
"While you are not bound by the testimony of expert witnesses, still, in considering such testimony, the professional standard and experience of such witnesses must be taken into consideration in arriving at a verdict; and you should consider the character, the capacity, the skill, the opportunities for observation, the state of mind of the expert, the nature of the case and all its developed facts. The opinions of experts are to be considered by you in connection with all other evidence in the case. You are not to act upon them to the exclusion of other testimony. You are to apply the same rules to the testimony of experts that are applicable to other witnesses in determining its weight. Taking into consideration the opinions of experts and giving them just weight, you are to determine for yourselves from the whole evidence whether the defendant is guilty as she stands charged beyond a reasonable doubt."
It is contended that the instruction is erroneous, for the reason that by it the court pointed out certain testimony in the case and instructed as to its weight. The instruction is not erroneous. Epps v. State (Ind.), 1 N.E. 491; State v. Malloy (S.C.), 78 S.E. 995. The court could properly instruct as to the testimony of expert witnesses so as to inform the jury that they should not disregard such testimony merely because given by experts. The instruction does not tell the jury to give little or great weight to the opinion of the experts but to give them "just weight." This is in effect telling the jury to give the opinions such weight as they may deem them entitled to, be it little or great or of no weight whatever.
We have examined and considered the other alleged assignments of error and find them to be without merit.
The judgment and order appealed from are affirmed.