Appeal from Sixth Judicial District Court, Humboldt County; Edward A. Ducker, Judge.
J. M. Frame, for Appellant.
Callahan, District Attorney, for Respondent.
By the Court, McCarran, J.:
The defendant was convicted of murder in the first degree and his penalty fixed by the jury at life imprisonment. The court refused to grant him a new trial; hence this appeal.
From the record on appeal it appears that the deceased, Ben Swago, was associated in business with one Fouts, in the town of Rochester; the business consisting of a saloon and restaurant in the same building. The defendant Scott, as appears from the transcript, was employed by Fouts to represent him and in a way to oversee the
business in the interests of Fouts. On the evening of the 24th of February, 1913, the establishment was about to open, and on that occasion the bar was opened; the restaurant portion not having been completed. In the early part of the evening, the defendant, while in the kitchen at the rear of the barroom in a somewhat intoxicated condition, had urinated upon the floor. For this act he was accosted by the deceased. The defendant replied with angry and foul words, telling deceased, in effect, not to interfere with him or he would put him out of there; that he was the man that was making the money, whereupon the deceased struck the defendant several times. Bystanders intervened and stopped the fight and the two advanced to the front of the building, in which position the bar was located, and there, it appears, that a second altercation occurred, in which words was uttered, but no blows struck. At this time a woman by the name of Alice Miller, a prostitute with whom the deceased, Swago, had been consorting while in the town of Rochester, injected herself into the altercation between deceased and defendant, and after the second trouble, which occurred in the front of the saloon, Swago, the deceased, and the Miller woman left the saloon by the front door, passing out into the street. The record discloses that the defendant, after the second altercation, went behind the bar and took therefrom a revolver and walked out to the front door. At the front door, or thereabouts, the third altercation took place, in which the deceased was shot by the defendant.
The record in this case discloses evidence produced by the state, depicting the circumstances of three distinct altercations occurring in succession between the deceased and the defendant, in each of which the state's evidence undeniedly shows the deceased to have been the aggressor.
It is the contention of appellant that the verdict of murder in the first degree, entailing life imprisonment, is not supported by the evidence, as disclosed at the trial of this case. With this phase of the case we shall deal later.
At the trial of this case in the court below, the defendant interposed self-defense in justification of his act.
The evidence discloses an alleged dying declaration, made by the deceased, Swago, introduced by the state and in part reading:
I am awful sick man and I might die before midnight. I don't see my way through. In Ollie's place I heard Scott say I show them how to run the joint. * * * When he told me that I couldn't stand it any longer so I hit him with my fist, then he rushed for a gun, and I walked out, and I was going back in again Scott come out of the door with a gun in his hand. His hand and gun were both in his coat pocket. He had the gun in his right hand. I saw that I couldn't get away so I ran in and clinched with him. I threw my arms around him so that I could protect myself. He stuck the barrel of the gun against my stomach and shot me. I think he shot me twice, but don't know. When he came out of the door with his hand on his gun he came towards me and I thought he was going to kill me. When Scott come out of the door he said something, but I don't know what he said. I was too much excited. After I slapped him in the kitchen I did not strike or threaten him again. When he come out of the door with the gun I thought that couldn't put him out and had to clinch with him to protect myself.
The phase of the altercation, as touched upon briefly in the dying declaration, is, to some extent, borne out by the testimony of other witnesses. It appears from the testimony of Alice Miller that a second altercation took place at the bar in the front part of the building. She says in her testimony, in answer to interrogatories propounded by the prosecuting attorney (referring to Scott):
Benexcuse my languageI says, Ben, the son of a bitch is going for his gun,' and so Ben went right after him, and he caught a hold of him, I judge just within about four feet of the bar, and at the same time five or six
fellows rushed up and grabbed Mr. Swago again, and pulled him away from Mr. Scott, and held him you might say in a vise.
Later in the same statement she said:
Some one got a hold of Mr. Swago's arm, and I says, Come on then, let us get out of here quick,' and I went right out the front door, and Mr. Swago right after me, and he had gotten, I would judge, eighteen feet away from the house, and I walked straight out and walked off to the left, and I says, Ben, come on, let us make a run, for he is going to get you sure'; and he says, just wait a minute.' And I stood there and looked back of the house, and it kind of looked to me like he was studying, and I says: Don't stand there. Come on, let us go.' And just then Mr. Scott made a run right out of the door, and, as he stepped off of the porch, there was a sort of little step in front of the saloon, and as he stepped off of the porch, and he came out, with his hand in his right-hand overcoat pocket, with the gun in his hand, and I holloed to Ben again. There is a gun, look out!' And he ran to him, and he threw his left hand at Mr. Scott's right hand.
At another place in her testimony, referring to the altercation in the rear of the room, she said:
And I grabbed a hold of Mr. Swago, and I stood there with my arm around him, and, as soon as Mr. Scott was released from these fellows that were holding him, he turn right around there, and he started right this way.
Q. Scott did? A. Yes, sir; and at that time was when I told Mr. Swago to get him, that he was going for his gun, and I would judge about there, in fact almost in front of the door, is where Mr. Swago got him again, that is, got a hold of him, and he held him, and there were four or five fellows interfered again, and took Mr. Swago away from him, that was away from Mr. Scott, that is from fighting. Then I ran again into Mr. Swago right here, and I caught a hold of his right arm, and I says: Come on, Ben; let us get out of here. He is going to get you.' And at the same time Mr. Scott had already come
behind the bar up to this end, and he was standing right there when I was asking Mr. Swago to leave the house.
Q. State whether or not that is where the defendant was when you and Swago left the house? A. He washe was standing right there with both hands underneath the bar.
Referring to the immediate incident of the shooting outside the door of the saloon, the witness Miller further states:
I told him to look out, there was the gun again.'
Q. Telltell then what the two men did. A. Then Mr. Swago rushed into him, and he took his right hand, that is with his left hand and grabbed for the gunright for the gun, and the first shot went off immediately after they came together, and the next shot followed very shortly, and I saw Mr. Scott's hand come down the next time.
At another place she testified:
Q. Now will you illustrate and give the position of the two men when the shot was fired? A. Yes, sir (indicating). Mr. Swago was standing like this with both of his hands in his pocket.
Q. That was before he started towards Mr. Scott? A. Yes, sir.
Q. Yes. A. Just standing sort of a loose attitude of this kind, and as Mr. Scott came out the door, and I holloed to Mr. Swago to look out, there was the gun,' Mr. Swago started to pull his hands out of his pockets, and started right towards Mr. Scott, and Mr. Scott had a gun in his hand. I don't think he stepped over two or three steps, and Mr. Swago threw his left hand up, up to Mr. Scott to get the gun, he come out with in his right hand.
Q. Who did? A. Mr. Swago. He grabbed the gun, and then the shot went off, just as the first shot went off, and the second shot followed immediately afterwards.
On cross-examination, the witness, being interrogated as to the movements of herself and the deceased after they left the front door of the saloon, testified as follows:
Q. Why did you and Swago separate when you got outside of the saloon in front of the saloon? A. Because I was trying to make him come around and get behind the salon and get away, and he would not do it. He stood off right out from the saloon.
The witness Miller was the principal witness for the state, and her testimony, taken in connection with the dying declaration introduced in evidence, discloses three events happening in succession, in each one of which the deceased appears to have been the aggressor.
[1-3] The plea of the defendant in this case being that of self-defense, the court gave several instructions bearing upon the law of self-defense in the abstract, and especial objection is raised by appellant herein to instruction No. 31, given by the court at the request of the state. It is as follows:
You are instructed that it is not necessary for the state to prove that the defendant did not kill Ben Swago in necessary self-defense.
Self-defense is an affirmative defense, and before you can acquit the defendant on that ground it must appear from the evidence in the case sufficient to raise in your minds a reasonable doubt that the killing of the deceased, at the time and place alleged in the indictment, if he was so killed, was not in necessary self-defense.
If you find from the evidence beyond a reasonable doubt, that the defendant, at the time and place and in the manner alleged in the indictment, killed Ben Swago, named in the indictment, and if you further find that there is no evidence that the defendant, at the time he did so, acted under the influence of fear that his own life was in danger or that he was in danger of receiving great bodily harm from said Ben Swago, and that the killing of said Ben Swago was absolutely necessary to prevent it, then you must find the defendant guilty.
The second paragraph of this instruction contains a positive misstatement of the law. Sheared of all qualifying statements it reads: Self-defense is an affirmative defense, and before you can acquit the defendant on that
ground it must appear that the killing of the deceased was not in necessary self-defense. It requires no discussion of the law of self-defense to determine that this assertion, as given to the jury as an instruction of law applicable to the plea interposed by the defendant, was a clear misstatement of the law. It might be contended that this was a clerical error; but in cases of this kind, where a court seeks to instruct the jury on matters of law, if a clear misstatement of a legal principle appears, the fact that this is a clerical error will not relieve the injuries that might accrue therefrom. It might be contended that by other instructions given by the court the law was correctly stated. This court, as well as other courts, has repeatedly held that where a record in a criminal case shows that the court differently defined the law upon any given subject, one clause being correct, the other erroneous, that injury must be presumed to follow from such a state of facts, unless the record clearly shows that no injury resulted therefrom.
 The evidence in this case, in our judgment, is not sufficient in itself to support the verdict of murder in the first degree. The testimony of the state's witnesses, of whom the witness Miller was the principal witness, discloses that the deceased, Swago, was the assailant in the first instance. Whatever the acts or conduct of the defendant might have been, they were not, in our judgment, sufficient to warrant the assault of Swago in the first altercation, which took place in the rear of the room. It is manifest from the evidence that the witness Miller, the consort of the deceased, was not an impartial bystander on the occasion of this trouble. Her testimony relative to her utterances before the shooting indicates that, being encouraged more or less by the woman, he was a least a willing participant in the successive altercations. She says: Ben, the son of a bitch is going for his gun,' and so Ben went right after him.
Referring again to this incident, she says: And at that time was when I told Mr. Swago to get him, that he was going for his gun, and I would judge about there, in
fact, almost in front of the door, is where Mr. Swago got him again.
While the defendant had the opportunity to shoot deceased when the latter approached him, he did not do so. The shots were not fired until after the deceased had grappled defendant and the struggle had commenced.
 The evidence in this case pointing as it does to a less degree of guilt than that of murder in the first degree, it is manifest that the jury was led by something other than the evidence to render a verdict of first degree.
The second paragraph of the instruction No. 31 is a clear misstatement of the law applicable to self-defense, and, in view of the fact that the court instructed the jury the jury must receive as law what is laid down as such by the court, the natural presumption becomes conclusive that the jury did consider the erroneous instruction. Whether this instruction in its form as given either misled the jury in arriving at the verdict, or confused them as to what the law really was, is immaterial; but either condition was prejudicial to the defendant in this case.
As was said by this court, speaking through Mr. Chief Justice Lewis, in the case of State v. McGinnis, 5 Nev. 337: We are not fully satisfied that it misled the jury. Very serious doubts may be entertained as to that. Still, in a criminal case, any ambiguity which may have a tendency to mislead the jury should entitle the prisoner to a new trial.
As said by Mr. Justice Hawley, speaking for this court in the case of State v. Ferguson: The law does not conclude the rights of individuals or parties upon any such uncertain grounds. Its utmost effort is accuracy, as far as it may be attained through fallible agencies, and then its mission is complete and its conclusions irrevocable. (State v. Ferguson, 9 Nev. 114.)  The third paragraph of instruction No. 31 is objectionable inasmuch as it instructs that, unless the killing appeared to the jury to be absolutely necessary,
they must find the defendant guilty. An instruction very similar to this was dealt with in the case of State v. Ferguson, supra, and in that case Mr. Justice Hawley quoted approvingly from State v. Collins, 32 Iowa, 39, to the effect:
The inquiry is not whether the harm apprehended was actually intended by the assailant, but was it actual and real to the accused as a reasonable man as compared with danger remote or contingent. By the frequent use of the words absolutely necessary,' as found in the instructions and charge, the jurors may have drawn the inference that before they would be justified in acquitting the defendant it must appear to them that the killing of deceased was absolutely necessary. This view of the case would virtually deprive a defendant of a reasonable exercise of his own judgment in determining from all the circumstances what was necessary to be done for the protection of his person or his lifea right which the law confers upon every individual, but one that must always be exercised at his peril, subject to revision by a jury of his peers.
To the same effect and following a strong line of decisions is the case of Hawkins v. U. S., 3 Okl. Cr. 651, 108 Pac. 561.
The case of State v. Ferguson, supra, was quoted from at length and approvingly by Mr. Justice Ross, speaking for the United States Circuit Court of Appeals of the Ninth Circuit of the United States, in the case of Owens v. U. S., and the rule as announced in the case of State v. Ferguson, in our judgment, is the proper rule applicable to the instruction in question.
The inquiry for the jury is: Did the defendant, acting as a reasonable man, upon the appearances of the existing conditions at the time of the encounter, believe at that time that it was necessary for him to commit that act in order to protect himself? An instruction upon the rule of self-defense which failed to set forth the above qualification is clearly erroneous. Whatever might be
said as to the court clearly setting forth the rule in other instuctions, this error in instruction No. 31 could not be cured thereby. (State v. Vaughan, 22 Nev. 285, 39 Pac. 733; Owens v. U. S., 130 Fed. 279, 64 C. C. A. 525.)
Appellant assigns as error the remarks of the trial court in the presence of the jury, on the admission of the dying declaration. As appears from the record, the dying declaration was offered by the state, through the witness Dr. Kitchen, who it appears was the physician in attendance upon the deceased and in whose presence the dying statement was made. In interposing his objection to the offer, counsel for appellant requested that the jury should retire while the matter was being presented to the court, to which suggestion the court said:
The CourtWhat do you mean? Do you desire to make an argument?
Mr. PercyIn regard to the admission of this statement; yes, sir. It is a purely legal question.
The CourtI cannot see how that can affect the jury in that case.
Mr. PercyWell, if the court so desires. They have already heard the testimony concerning it. We submit to your honor's ruling then, and we will submit to your honor the law.
At the conclusion of a prolonged argument, the court in the presence of the jury made the following remarks:
The CourtThe admissibility of these dying declarations lies in the exception to the hearsay rule, and it is based solely on the question of necessity, the necessity of preserving evidence, which would otherwise become a loss through the death of the declarant before having time to get his testimony into court.
There are two conditions which are absent from a dying declaration, which are present when a witness is giving his testimony in court. That is, the declarant is not under a solemn oath before a justice, and the second condition is the defendant does not have the opportunity to cross-examine the declarant upon the testimony that he has given in the dying declaration. Consequently, the
law having seen the necessity of the admission of dying declarations in a case of homicide has, as a matter of necessity, dispensed with the cross-examination, and the law has laid down the rule that when a declarant is under the fear of death, and in the presence of imminent death, and realizes that this death is imminent, that such a situation as that creates in the mind of the declarant, who realizes that he is about to go before his Maker, an obligation which is as binding as an oath administered in a court of justice. But the cross-examination, as a matter of course, is always absent, and consequently the courts do not admit these dying declarations unless the foundation is clearly laid that the declarant was under and in the presence of immediate dissolution, that he realized that he had no hopes of recovery, and that he realized that death was imminent.
Of course, as to what is the meaning of imminent death varies under the circumstances of every case. I know in some cases dying declarations have been admitted when the declarant did not die for six weeks or two months after the making of the statement, but the foundation was so clearly laid that at the time he made the statement, he was under and ...