Appeal from the Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Klein & Hale, for Appellant.
Geo. B. Thatcher, Attorney-General, and E. P. Carville, for the State.
By the Court, McCarran, J.:
The defendant was convicted of murder in the first degree for the killing of an Indian girl known as Bessie Andy. From the judgment, and from an order denying a motion for a new trial, defendant has appealed.
The killing took place on the main street of the town of Elko. The defendant, after throwing the girl into a mud puddle in the street, and after stabbing another party, who appears to have been a companion of the girl on that afternoon, returned to the spot where the girl stood, and plunged his knife into her body some three of four times, causing almost instant death.
The record in this case, in so far as the testimony is disclosed thereby, fails to set forth, with any degree of satisfaction, any particular motive for the killing. The defendant testified in his own behalf during the trial, and stated that he was a native of Mexico, 23 years of age, and from his statement it may be gathered that the defendant and the woman whom he killed had been living together for a number of years. The deceased was an Indian woman, about 20 years of age. The defendant stated that on occasions when he came to town a certain Mexican, or half-breed, who, it appears, met the defendant and Bessie Andy, the deceased woman, immediately before the homicide, was always trying to make trouble with him, and it might be gathered by inference from his various statements that bad blood existed between the defendant and this half-breed Indian or Mexican and that Bessie Andy, the deceased, was the woman in the case about whom the unfriendly relations had grown up between the defendant and the half-breed. The defendant in his testimony, in relating occurrences immediately preceding the homicide, said that the half-breed wanted Bessie to go with him, and had made a threat that if Bessie did not go with him that he would kill Bessie and the defendant. Counsel for defendant asked, What did the Mexican say he wanted with Bessie? to which the defendant replied, He wanted to take her to Golconda.
The father of Bessie Andy testified that the defendant had been about the Indian camp for some weeks prior to the homicide, and that the defendant and Bessie, daughter of the witness, had been together at least a part of this time. Just prior to the killing, the defendant and Bessie Andy, together with the father and mother of the latter, had dinner together at a Chinese restaurant. It appears from the testimony of the father of the girl that they had liquor, and that he became quite intoxicated. After the dinner the four, consisting of the defendant and the deceased girl, and the father and mother of the latter, left the restaurant and started toward the Indian camp, passing through the business section of the town of Elko on the way. The defendant and the deceased girl, who were traveling together on the way from the restaurant toward the Indian camp, met the half-breed Indian boy, or half-breed Mexican, as he is sometimes termed in the testimony of the several witnesses. The latter was in company with one Jim Odell on the occasion of the meeting, and from the deposition of Odell, taken at the preliminary examination and admitted in evidence, it appears that the defendant asked where they were going, and the half-breed boy replied:
Then, said Odell, the Indian girl, Bessie, said something to the (half-breed) Indian boy in Indian. I don't know what she said, and he answered her, and then he (meaning Jose Salgado) turned around and started to hitting Bessie.
Q. Then what followed, if anything? A. Then she fell at my feet, and she begged me and the Indian boy to make him stop, and she got up on her feet and started across the street, and the defendant run around in front of her, and pushed her down in the water and went on top of her and started to beating her, and the Indian boy told him to stop, and he wouldn't do it, so the Indian boy hit him, and the the Indian boy stepped back, and I tried to pull him off, and he started to fighting with me. As I was fighting with him, I happened to get the best of him,
and he reached in his pocket and got a knife. As I seen him pull a knife, I let him go and ran toward the S. P. track. The Indian boy then said something to him and he chased him into the saloon. After he came out of the saloon he walked right over to Bessie, and the first stroke cut her on the left side of the neck. He then started to walk away, and I don't know where they caught him, but I guess somewhere up here.
Q. Did you see Jose strike Bessie with the knife? A. Yes, sir.
Q. How many times, as near as you remember? A. Well, I seen the first stroke, and then he grabbed her around the neck and made several strokes. I do not know how many.
How many times did you hit him (the defendant)? A. I don't remember, but I hit him several times in the face.
A conviction of murder in the first degree was the result of the trial, and, the jury having failed to designate the punishment, the court sentenced the defendant to death by shooting.
A statement of defendant's counsel, made to the jury before the presentation of his case, is significant, inasmuch as it may have some bearing on the principal assignments of error. In part, it is as follows:
If the court please, and gentlemen of the jury, we are not taking the position that this man should not be punished for the crime. We are not attempting to prove that this man is not guilty of killing Bessie Andy, and we are not going against the rules and laws of our social life so far as to say that you should not punish Joe Salgado for killing Bessie Andy. But we have disagreed with the state in this only: That he is not guilty of murder in the first degree, but, under the circumstances of this case, we expect to make it clear and plain to you gentlemen that he is guilty of a lesser crime, and that is why we are asking you to try himto fix his punishment as will meet the circumstances. Therefore, understand us, gentlemen,
because we are in this courtroom and defending this case, we are not putting the county of Elko to the expense of trying this man because we contend that he is not guilty of a crime, but we are putting the county of Elko to the expense merely because we conscientiously believe that this man is not entitled to the most extreme punishment of the law, and therefore we will ask you, after we have shown to you to the best of our ability the circumstances surrounding this case, to take the law and the instructions of the court, or the evidence and the instructions of the court, and weigh everything carefully, and do with Joe Salgado as you think ought to be done.
The principal assignment of error relied upon by the appellant charges the trial court with error for having denied the defendant's challenge to the juror F. R. Jacoby. The defendant challenged the juror for actual bias, and in this respect we deem it sufficient to say that the juror, by his answers to interrogatories propounded to him, signified that he had read of the case and had talked to several people with reference to the case; that from what he had read and heard he had formed and had expressed an opinion going to the merits of the case. It appears that none of the parties with whom he had conversed witnessed the homicide. His condition of mind with reference to the case is set forth in the following:
Q. Well, right now then you have an opinion as to whether this man be guilty of murder in the first degree, or otherwise, haven't you? A. I have.
Q. And if you sat as a juror on this case right at the outset of the trial one of the parties would be under a disadvantage in your mind, wouldn't they? A. Yes. sir.
Q. It would require a certain amount of testimony to remove that disadvantage from your mind? A. It would.
I mean at the present time I have what you may call a fixed opinion, but, if the evidence disagreed with the opinion that I have formed and what I have read, I could change my opinion.
In response to questions propounded by the court, the
juror answered that he could, if accepted as a juror, lay his opinion aside and try the case on the evidence presented at the trial. In view of the form of the objection interposed, the substance of the answer given by the juror Jacoby and the statements made by him are not subject to the same consideration as they would be if the objection had assumed another form.
 The statute relative to this subject provides that a challenge for cause may be taken by either party relative to a particular juror, for reasons:
First: General; i. e., that the juror is disqualified from serving in any case by reason of his having been convicted of a felony; for want of any qualifications prescribed by law; or is of unsound mind or has physical defects which would render him incapable of performing the duties of juror.
Second: Particular; i. e., that he is disqualified from serving in the action on trial. (Rev. Laws, secs. 7145, 7146.)
Particular causes of challenge are by our statute divided into classes: First, such a bias as, when the existence of the facts is ascertained, in judgment of law, disqualifies the jurordesignated implied bias; second, such a state of mind on the part of the juror as leads to a just inference, in reference to the case, that he will not act with entire impartialitydesignated actual bias. (Rev. Laws, sec. 7147.)
Section 7150 of our Revised Laws prescribes how a challenge for either implied or actual bias may be taken. It is as follows:
In a challenge for implied bias, one or more of the causes stated in section 298 must be alleged. In a challenge for actual bias, it must be alleged that the juror is biased against the party challenging him; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public press, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding
such an opinion, act impartially and fairly upon the matters submitted to him.
Under our former procedure, a challenge for actual bias required that the court should appoint triers to determine it. The new procedure adopted in 1912 did away with the process of determination by triers, and made the court the forum in which both implied bias and actual bias should be determined. It is unnecessary for us to determine in this instance as to the qualification of the juror as disclosed by his answer made on voir dire, nor is it essential that we pass upon the question of implied bias, inasmuch as the challenge was not for implied bias, but intended rather to constitute a challenge for actual bias.
Under our former practice act, where triers were required to determine the truth or falsity of a challenge, it was essential that the challenge, when made, should conform to the statutory prescription. The change of the forum by which the challenge should be determined, from triers, as formerly prescribed, to the court, as under the new procedure, did not, in our judgment, in any way change the force and effect of the statute as to the essential grounds upon which the challenge should be based, or the essential form of the challenge. The statute in that respect remains the same as that formerly in force, the ground being, as prescribed: The existence of a state of mind on the part of the juror which leads to a just inference, in reference to the case, that he will not act with entire impartialitythe form of the challenge being, at least in substance, as prescribed by statute, that the juror is biased against the party challenging him.
The mere assertion, Challenge the juror for actual bias, fails to state any ground upon which the challenge rests or by reason of which it is made, or as to the party against whom he is biased, and hence the requirements of the statute are not followed, and no statutory challenge is interposed. (People v. Hopt, 3 Utah, 398, 4 Pac. 250; Robinson v. Territory, 16 Okl. 241, 85 Pac. 451.) In the
case of People v. Hopt, supra, the Supreme Court of Utah passed upon the question here under consideration, and in the light of a statute identical to ours, and under almost identical conditions. To the same effect is the case of State v. Gordon, 5 Idaho, 297, 48 Pac. 1061. This question was passed upon in an early decision by the Supreme Court of California under a statute similar to our former practice act requiring triers, and the reasoning there set forth we deem applicable to this case. People v. Reynolds, 16 Cal. 130.) It has repeatedly been held by this court that a challenge for implied bias which fails to state one or more of the statutory grounds as a basis for challenge is insufficient. (State v. Raymond, 11 Nev. 98; State v. Vaughan, 22 Nev. 296, 39 Pac. 733; State v. Gray, 19 Nev. 212, 8 Pac. 456; State v. Simas, 25 Nev. 449, 62 Pac. 242.)
The determination of the question of actual bias being by our more recent practice left with the court, the same forum as that to which the question of implied bias is submitted for determination, the reasoning which was followed by this court on the question of the sufficiency of a challenge for implied bias should, in our judgment, warrant us now in holding, as was held by the Supreme Court of Utah in the case of People v. Hopt, supra, that, in order for the challenging party to raise any point for the consideration of the court, there must be a declaration of cause substantially complying with the provisions of the statute, and the form of the challenge must be in substantial compliance with that prescribed by statute; i. e., that the juror is biased against the party challenging.
The challenge was insufficient in form; and, while it does not appear from the record as to whether the court denied the challenge for this reason, or because he deemed the juror free from objection, the ruling must be sustained for failure to declare a ground of challenge known to the statute. (State v. Vaughan, supra; Robinson v. Territory, 16 Okl. 241, 85 Pac. 451; State v. Myers, 198 Mo. 248, 94 S.W. 242.)
 From the record in this case with reference to the voir dire examination of the juror Jacoby, it appears that, if he was disqualified at all, it was only such a disqualification as would subject him to a challenge for implied bias, and was not such as would in any way subject him to a challenge for actual bias. He was not challenged on the ground of implied bias; hence it is unnecessary for us to deal with that phase; suffice it to say that, had a challenge for implied bias been interposed to the juror Jacoby, the trial court, following the rule laid down ...