Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
H. H. Atkinson, for Appellant.
Geo. B. Thatcher, Attorney-General, for Respondent.
By the Court, Coleman, J.:
1. The defendant was charged with the crime of assault with intent to kill. Upon the trial the jury returned a verdict of guilty, and from an order denying a motion for a new trial and the judgment defendant appeals.
Error is assigned to the giving by the court of instruction No. 2 which reads:
The law holds the defendant accountable for the natural and probable consequences of his acts, when unlawful, regardless of the question of whether he accomplished his purpose or not; and, if you believe from the evidence, beyond a reasonable doubt, that the defendant did assault Lillian Frazier with a dangerous weapon in such a manner as was calculated to produce the death of Lillian Frazier, the law presumes that such was the defendant's intention, and throws upon him the burden of showing facts in mitigation, justification, or excuse.
The portion of the instruction to which the objection goes is:
The law presumes that such was defendant's intention and throws upon him the burden of showing facts in mitigation, justification, or excuse.
In the case of People v. Landman, 103 Cal. 577, 37 Pac. 518, a similar instruction was under consideration, and the court said:
When a specific intent is an element of the offense no presumption of law can ever arise that will decide this question of intent; and therein is found the vice of the present instruction.
We believe the law is correctly enunciated in the foregoing extract. Other authorities supporting this view are: Roberts v. People, 19 Mich. 401; Patterson v.
State, 85 Ga. 131, 11 S. E. 620, 21 Am. St. Rep. 152; Lawson Pres. Ev., p. 271; People v. Mize, 80 Cal. 42, 22 Pac. 80. See, also, 12 Cyc., pp. 152, 153, 154.
Some authorities hold that while it is error to instruct the jury that the law presumes a defendant intended the natural consequences of his act, they hold that it is not error to instruct that the jury may presume that a defendant intended to accomplish the natural consequences of his act. But as this question is not before us, we express no opinion concerning it.
It is also contended that the trial court erred in giving the following instruction:
If a witness examined before you has wilfully sworn falsely in a material manner, you may disregard the entire evidence of such a witness, except in so far as it is corroborated by other competent evidence.
In the very recent case of Zelavin v. Tonopah Belmont Development Co., 39 Nev. 1, 149 Pac. 188, we commended an instruction which is substantially the same as the one complained of here, the only material difference being that in the one in that case the word credible was used instead of competent. As will be readily seen, there is a marked difference between the two words. But appellant objects to the instruction quoted in the Zelavin case. That instruction is not only one which has found favor in this court, but in other courts (38 Cyc. 1733), and, we believe, with the bench and bar of the state generally. The only court which has emphatically repudiated such an instruction is that of Oklahoma, as appears from the Williams case, cited by us in the Zelavin case, supra. In view of the fact that this case must be reversed for other reasons, and the further ...