Appeal from Second Judicial District Court, Washoe County; E. J. L. Taber, Judge.
Withers & Withers, for Appellants.
Geo. B. Thatcher, Attorney-General, E. T. Patrick, Deputy Attorney-General, William McKnight, Deputy Attorney-General, and E. S. Lunsford, District Attorney, for Respondent.
By the Court, Coleman, J.:
The facts in this case are substantially the same as those in the case of State v. Snyder, 41 Nev. 453, 172 Pac. 364, this day decided. The only question which we deem it necessary to consider is that raised by the
assignment of error based upon the action of the court in refusing to give, without modification, instruction D2, which reads as follows:
You are further instructed that although you may find from the evidence that the defendants, or either of them, may have had in his possession chloral hydrate and may have had the opportunity to use the same, such facts alone are insufficient to convict the defendants of the offense charged, to wit, robbery; but the state must prove beyond a reasonable doubt that such chloral hydrate was actually administered to the said Cooper and was actually taken by him, and that such drug, and not some other cause, made the said Cooper become unconscious and insensible.
The court modified the instruction by substituting for the italicized words the following, a drug, and as thus modified it was given.
The information charging the defendants with robbery did not allege the use of chloral hydrate, or any drug, but alleged that robbery was committed by the use of force and violence; and the evidence showed that, while a large quantity of chloral hydrate was found upon the defendants, some of it was in solution, and the analysis of one bottle containing the solution showed that a foreign substance, such as sugar or digitalis, had been mixed with chloral hydrate. We are unable to see wherein the defendants were prejudiced by the instruction. What does it matter whether the jury found from the evidence that the defendants administered pure chloral hydrate or chloral hydrate in solution?
Hawley, C. J., in State v. Loveless, 17 Nev. 424, 30 Pac. 1080, quoted with approval as follows:
The rule is that judgments will be reversed for alleged errors in instruction only when, looking at the testimony, we can see that the jury may have been misled by them to the prejudice of the defendant, or when, in the absence of the testimony, it is apparent that the instructions would be improper under any possible condition of the evidence.
We do not think the defendants were in any way prejudiced by the action of the court, and ...