Appeal from Seventh Judicial District Court, Mineral County; Emmett J. Walsh, Judge.
Frame & Browne, for Appellant.
J. H. White, District Attorney, and Geo. B. Thatcher, Attorney-General, for Respondent.
By the Court, Coleman, J.:
The defendant was convicted of an assault with a deadly weapon, and from the judgment of the court he appeals.
1, 2. The first ground urged for a reversal of the judgment is that the information is fatally defective, in that it fails to allege that the defendant had the present ability to make an assault upon the person named in the information. Our statute defines an assault as:
An unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (Rev. Laws, 6412.)
Section 7050, Revised Laws, 1912, reads:
The indictment must contain the title of the action, specifying the name of the court to which the indictment is presented and the names of the parties, and a
statement of the acts constituting the offense, in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended.
The information in the case at bar charges:
The said Hector MacKinnon, on the 7th day of December, 1916, or thereabouts, and before the filing of this information, in the county of Mineral, State of Nevada, he having the ability then and there so to do, did, wilfully, unlawfully, and feloniously, and without authority of law, with a deadly weapon, to wit, a pistol loaded with gunpowder and leaden bullets, which he, the said Hector MacKinnon, in his hand there and then had and held, assault one B. B. Shepherd, a human being, by shooting at and striking him, the said B. B. Shepherd, with the intent him, the said B. B. Shepherd, then and there to kill.
We do not understand that it is necessary that the information should allege defendant's present ability to make the assault in those words, but in words which convey the same meaning. Section 7050, Revised Laws, states that an offense may be charged in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. We are unable to see how any person, of the least understanding could fail to grasp what was meant by the language of the information. It certainly shows that the defendant had the present ability to make the assault. The draftsman of the information, not being content with the language he having the ability then and there so to do, also charged that the defendant, with a pistol loaded with gunpowder and leaden bullets, in his hand there and then had and held, made the assault. We are unable to see just how a stronger allegation of present ability could have been made. Furthermore, courts do not look upon attacks of this character upon an information with the same favor when made for the first time on appeal as when made before a plea is entered. (Ex Parte Breckenridge, 34
Nev. 275, 118 Pac. 688, Ann. Cas. 1914a, 871), and when made for the first time on appeal, they will be ignored unless the information is fatally defective.
3, 4. It is also urged that the court erred in denying defendant's application for a continuance on the morning when the case was called for trial, to enable him to employ an attorney. When defendant was arraigned he waived his right to counsel, and though he was thereafter brought into court on two occasions before the day of trialonce when he entered his plea of not guilty, and again when the case was set for trialhe did not signify his desire for counsel until the morning of the trial, more than two weeks after the order setting the case for trial had been made. At the time the case was called for trial, and when all of the witnesses and jurors were in attendance for the trial, and after a preliminary order had been entered in the case, but before any of the jurors had been called into the jury box, the defendant asked that the case be continued until the following day to enable him to employ counsel. The court denied the application and proceeded with the trial. It is insisted that by its action the court denied defendant a constitutional right guaranteed him by section 8, article 1, Constitution of Nevada, which provides that:
* * * The party accused shall be allowed to appear and defend in person, and with counsel, as in civil actions.
The purpose of this provision in our constitution is simply to guarantee to one charged with crime the privilege of being defended by counsel. It is a privilege which he may exercise or waive. If he waives it at one stage of the proceeding, he must act with a reasonable degree of diligence if he later desires to avail himself of it. In other words, having once waived this privilege, a judgment will not be reversed because the court at a later date refused to grant a continuance so that counsel might be employed, unless the court abused its discretion. In the case of State v. Yoes, 67 W. Va. 546, 68 S. E. 181, 140 Am. St. Rep. 978, the court said:
The provision of the constitution, relating to the right of a prisoner to have the assistance of counsel, was inserted for the purpose of abrogating the common-law practice under which prisoners, accused of felony, were denied such right, and to restrain the legislature from denying it by statute. It differs in nature as well as form from the guaranty of trial by jury. The latter is prohibitory in form, while the other is permissive, and conditional upon the pleasure of the accused.
Under the circumstances of this case, we are of the opinion that there was no abuse of discretion on the part of the court in refusing to grant a continuance. To hold otherwise would put it in the power of persons charged with crime to materially hamper courts. Public policy will not justify such action. The defendant had ample opportunity to engage counsel, and his failure to do so was due to his own neglect.
5. It is also urged that the court erred in giving the following instruction:
The court instructs the jury that a person must be presumed to intend to do that which he voluntarily and wilfully does in fact do, and he must be presumed to intend all the necessary, probable, and usual consequences of his own acts, and the jury are instructed that if they find that the defendant, Hector MacKinnon, did assault the person named in the information, to wit, B. B. Shepherd, with a deadly weapon, a loaded automatic pistol, in such a manner as was calculated to produce the death of the said B. B. Shepherd, the law presumes that such was the defendant's intention, and throws upon him the burden of showing facts in justification or excuse.
It is the contention of counsel that that portion of the instruction which states that the law presumes the intention of the defendant, is erroneous and prejudicial. This identical question was before us in the case of State v. Pappas, 39 Nev. 40, 152 Pac. 571, where we held it was reversible error to so instruct the jury. No suggestion has been made that the ruling in that case
is not sound, and we know of no reason for repudiating it. It controls in the case at bar. For the error committed in giving this instruction, it is ordered that the judgment be reversed, and that a new trial be granted the defendant.
I concur in the order and so much of the opinion of Mr. Justice Coleman as reverses the case by reason of the giving by the trial court of the instruction relative to the law as to presumption of intent. I am not in accord, however, with the views taken by my learned associate on that phase of the case which has to do with the action of the trial court ...