Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Bartlett & Thatcher and J. M. Frame, for Appellant.
Cleveland H. Baker, Attorney-General, and E. T. Patrick, Deputy Attorney-General, for the State.
Thomas E. Kepner, for Appellant on petition for a rehearing.
By the Court, Norcross, J.:
This is an appeal from a judgment and from an order denying defendant's motion for a new trial. Defendant was convicted of murder in the second degree, upon which a sentence of fifty years' imprisonment was imposed. The indictment charged the defendant with the murder of one Sadie Isabel Heskett, at Rhyolite, in the county of Nye, on the 3d day of January, 1908. A former conviction of murder in the first degree was set aside by this court, and the case reported in 32 Nev. 70, 104 Pac. 223. The verdict upon the second trail was returned March 1, 1910. The case was not submitted to this court until January 21, 1914. Great delay in the submission of this case has been due in part to two reasons: Pending the appeal, the appellant escaped from the state prison, and was for some time at large before his capture and reincarceration. In December, 1912, Attorney-General Baker died, and Hon. Geo. B. Thatcher, who had represented the appellant in the court below, was appointed his successor. Attorney-General Thatcher thereupon withdrew as counsel for the defendant, but requested that time be given defendant to procure other counsel, and informed the court that in future the state would be represented by E. T. Patrick, Esq., who had been the deputy attorney-general under Mr. Baker, and had been continued in that office. The case, however, had been briefed by Mr. Thatcher and Attorney-General Baker prior to the death of the latter. Subsequently J. M. Frame, Esq., was entered as attorney for the defendant, and in January, 1914, filed a supplemental brief.
 A motion to dismiss the appeal, because of the escape of the appellant, was noticed by Attorney-General Baker, but was never formally presented to the court. We think this phase of the case should not be permitted to pass without notice. Some of the states have statutory
provisions providing for the dismissal of appeals in cases where the appellant escapes while the appeal is pending. Where there is no statutory provision on the subject, the courts have generally dismissed appeals, either conditionally or unconditionally, upon the escape of the appellant. The rule adopted by the California courts, under a practice act similar to the practice act in this state, is to dismiss appeals unless the appellant returns to custody within a time specified. (People v. Redinger, 55 Cal. 290, 36 Am. Rep. 32; People v. Elkins, 122 Cal. 654, 55 Pac. 599; People v. Sitz, 130 Pac. 858.) See, also, 12 Cyc. 879. Some similar rule ought to be, and doubtless will be, applied in future where the appellant escapes pending appeal.
[2-3] But two questions of alleged error have been presented in the briefs filed. Error is assigned in the admission by the court of a letter written by the deceased to the defendant about a month prior to the homicide. The letter reads as follows: My dearest: I can't get out this afternoon and am in my room darling, quite miserable. I'm afraid love that isn't going to be settled. Now sweetheart I'm going to leave in the morning. I think it will be best. I'll go away and get settled. There's nothing here for me you know. I don't think they'd let me alone if I went to work. But I'll get everything in shape and will be able to send the money for the fine and enough for you to come on. Dearest you should try to brace up and trust me. I wouldn't have gone this far if I hadn't have intended to stick to you. It is the tho't of your unhappiness that makes it so hard for me. Now darling you'll be out at the most in a week. I'll send the money to you made out in Well's Fargo. You can indorse them and pay your fine and come right to me. It seems the best way. You can come perhaps on the next train after you get out. A week isn't long and I'll have the money then. Now darling the thing most sacred to me is our little Edith and as a guarantee of my faithfulness I'm sending her picture from my locket so that you can look at it and trust me and then
give it back when we meet again. Now dearest if I can get any other work when I get into a new town its no more tenderloin for mine. It doesn't pay. Then when you come you can go to work and all will be well. Sweetheart I would love to have you go with me but it seems impossible. I've tried so hard to get the money. But love, the impossible is the impossible and another name for money just now so have patience and be good. No matter what any one thinks of you I know you to be truly good. I know you have the most loyal heart that beats in human breast and most of all you are the only man in the world for me. Now sweetheart I'm not coming to see you; it is far too painful. I'll pray for you every night that the days may seem less long. I will go to sleep with your image in my heart. I will know you to be faithful to me and surely you can be satisfied for a few short days. The fine will be a little less then and I'll make it somehow. Don't think that I've been contented one minute you've been in there for I've been on the verge of collapse all the time; but I've got to brace up and that is all there is to it. When you get out I'll be as sick as I want to. When you get discouraged dearie think of that little piece of poetry Then let come what may, I have already had my day.' Surely we have been happy enough to make up for a few unpleasant days. The sun you know can't always shine. We must accept the sunny days with thankfulness and the rainy days as our due. I'm going to work down there and get you some kind of work and we'll be quite happy. Things could have been much worse love. I might have been in and that would be dreadful. I'm kissing little Edith's face darling and she will carry my kisses to you with a short good-bye. Surely she knows how closely she binds us together. Mona.
The proofs showed that at the time of the homicide, the appellant and decedent were living together in an adulterous relationship in the town of Rhyolite, and that prior to their going to Rhyolite had so lived in other
places. Deceased was a proprietress of a dance hall, and the defendant a gambler by vocation. The homicide occurred about the hour of 3:30 in the morning, and shortly after the return of the appellant to the house where the parties were living together. The appellant was the sole surviving witness of the tragedy. Three bullets were found to have entered the body of the deceased and two to have entered the body of the defendant. One bullet entered the body of the deceased at the right shoulder, on the median line, and came out under the arm posterior to the median line, and had a course downward and slightly backward; another bullet entered between the shoulder-blade and the back-bone and went almost through the body; another bullet entered the back of the neck and had a downward course. Upon the body of the defendant a bullet entered the left breast, passing downward and outward through the pectoral muscle for a distance of three or four inches, the point of exit being about one inch below the point of entrance. Another bullet entered the body of the defendant over the eighth rib, a half inch posterior to the median line, passed through muscular tissue, and had its exit over the twelfth rib an inch and a half posterior and two and one-half inches below the point of entrance. It is proper to note that at the trial there was some contention between the prosecution and defense as to the point of entrance of the bullet ...