Appeal from Sixth Judicial District Court, Humboldt County; W. H. A. Pike, Judge.
W. D. Jones, for Appellant.
Geo. B. Thatcher, Attorney-General, for Respondent.
By the Court, Norcross, C. J.:
Judgment upon a conviction of murder in the second degree was affirmed in the former opinion and decision of this court, reported in 36 Nev. 472, 135 Pac. 1083. Rehearing was granted that further consideration might be given to the case which presented a number of close questions, particularly in reference to the action of the court in calling in the jury after it had retired to deliberate upon its verdict, and the proceedings thereafter following:
For convenience of consideration we will again recite that protion of the record as it appears in the former opinion:
After the jury had retired for deliberation, and had remained out several hours without reaching a verdict, they were called into the courtroom, and the following proceedings were had:
The CourtWell, now, I do not want you to state how you stand except numerically. You understand that it is numerals. Don't want you to state to me how you standnot what you are in favor of. Understand?
The CourtBut I want to know how you stand numerically. Now, be careful. Is it Does the balance stand 6 to 6, or 8 to 4, or 3 to 9, or something? What is the result of your last ballot, without stating what it was?
Mr. ForemanI understand; 11 to 1.
The CourtWell, that looks easy. If it is in that condition, and there isn't anything you want of the court, is there, that you know of?
Mr. ForemanNo, I don't think there is.
The CourtI do not want any of you to understand, gentlemen, that I wish to suggest in the slightest degree as to what your verdict should be. That is furthest away from my mind. All I want to say to youto remind youthat, if you can conscientiously do so, it is your duty to reach an agreement as ...