Opinion of Hawley, C. J., concurring.

answer, and we cannot doubt that the answers he gave must have excited more or less prejudice against him in his character of defendant in the minds of the jurors who tried him. For this error of the court the judgment must be reversed and a new trial had.

It is so ordered.

EARLL, J., concurring:

I concur in the judgment and in what is said by Mr. Justice BEATTY in respect to the cross-examination of the defendant, and to the mode in which the bill of exceptions should be authenticated.

It is a common law rule that every indictment must allege a day and year certain on which the offense was committed, and I do not think the rule is modified by the statute beyond the form prescribed in section 235 of the act to regulate criminal proceedings; and am of opinion the statute requires a day and year to be stated, though the precise day need not be stated except when time is a material ingredient of the crime. But I concur in the opinion that the defect is waived unless objection thereto be taken by demurrer. I am also of opinion that an indictment for murder which fails to show that the death occurred within a year and a day after the perpetration of the act which produced it, fails to state the requisite facts to constitute a complete offense. But I concur in the opinion that, under the provisions of the statute, when it is alleged that the defendant, on a certain day and year, etc., "killed" the deceased, that it is to be implied that the act which produced the death, and the death, occurred on the same day.

With respect to the question of practice discussed by Mr. Justice BEATTY, I express no opinion, the question not having been raised or discussed by counsel on either side.

HAWLEY, C. J., concurring:

I concur in the judgment of reversal and in the views expressed by Mr. Justice EARLL.

Statement of Facts.

[No. 757.]

THE STATE OF NEVADA, RESPONDENT, v. SAMUEL WATKINS, ALIAS JOHN BERRY, APPELLANT.

BURGLARY-SECTION 2365 OF COMPILED LAWS CONSTRUED-SUFFICIENCY OF INDICTMENT. The necessary construction of section 2365 of the Compiled Laws defining burglary, is that there is but one species of burglary, the essential definition of which is the entering in the night-time any dwelling-house, tent, etc., with intent to commit petit larceny, or any felony. An indictment showing these facts by proper averments would authorize a conviction of burglary, no matter how the entry was effected. CORPUS DELICTI-PROOF OF, HOW ESTABLISHED.-Proof that defendant had in his possession, outside of the house, between twelve and one o'clock, goods which were in the house at nine o'clock, and which could only have been obtained by entering the house, was proof of an entry in the nighttime, and, taken in connection with the other proof, completely established the corpus delicti.

REMARKS OF THE COURT.-It is not trenching upon the province of the jury to say that evidence has been given tending to establish a fact which it clearly does tend to establish.

INSTRUCTIONS.-An instruction that if defendant entered the house and stole therefrom certain goods, it might be inferred that he entered with intent to steal: Held, correct.

MODIFICATION OF INSTRUCTIONS.-The court is authorized to modify instructions so as to relieve them of any possible ambiguity, and to make their meaning more certain.

APPEAL from the District Court of the Fourth Judicial District, Humboldt County.

The defendant was convicted of burglary, and sentenced. to imprisonment in the state prison for the term of one year. Pending the trial, the defendant's counsel objected to any evidence being offered as to the goods being found in possession of the defendant, upon the ground that the corpus delicti had not been proven. The court, in overruling this motion, said, in the presence of the jury: "I presume the first thing counsel did was to try to prove the entry. The fact that the witness testified that there were some others in the house does not prove conclusively that there was any one else in the room; but the testimony tends to show that the person who took the goods must have entered the room."

Statement of Facts.

The following are the instructions referred to in the opinion of the court:

No. 4. Given by the court: "Should you find beyond a reasonable doubt that the defendant entered the Central Hotel, as alleged in the indictment, in the night-time therein referred to, and also, that at said night-time, after so entering, defendant committed petit larceny by stealing the said woolen blanket and bedspread, or either, then you may infer that defendant so entered with the intention to commit said crime of petit larceny.

*

'If the jury be

No. 1, asked by the prosecution: lieve from the evidence beyond a reasonable doubt that the Central Hotel is a house situated in the county of Humboldt, state of Nevada, and owned by Hinkey Brothers on the 26th and 27th days of May, 1875; and that on the said days * the said Hinkey Brothers were the owners of one woolen sleeping blanket and one coverlet, of the value of eight and three dollars respectively; and that about the hour of one o'clock A.M., of the said 26th day of May, 1875, said property was stolen, and was seen in the possession of the defendant shortly after being stolen, the failure of the defendant to account for such possession, or to show that such possession was honestly obtained, is a circumstance tending to show his guilt, and the accused is bound to explain the possession in order to remove the effects of the possession as a circumstance to be considered in connection with other suspicious facts."

No. 1, asked by the defendant: "The defendant is indicted for feloniously, burglariously and forcibly breaking and entering, in the night-time, a house with intent to commit petit larceny. Under this indictment the defendant cannot be convicted of the offense of entering a house without force, the doors or windows being open, with intent to commit any felony or petit larceny." To which the court added: "But if the jury find from the evidence, beyond a reasonable doubt, that defendant, in the night-time referred to in the indictment, entered the room from which the articles therein referred to are alleged to have been stolen, by unlatching or by pressing open the closed door

Argument for Appellant.

of said room, with intent to steal said articles of the Hinkey Brothers, or either of said articles, then this would be a forcible breaking and entry within the meaning of the law, and you should find the defendant guilty as charged in the indictment."

No. 5. "You are not at liberty to infer from the mere fact alone (if such fact be established by the evidence) that the defendant had the alleged stolen property in his possession, that he committed the burglary charged against him. Although it might be reasonable to deduce from such fact the inferences that a larceny had been committed, it does not follow that such larceny was the result of a burglary." The words "mere " and "alone" were inserted by the judge, and the following added to the instruction: "But you are at liberty to consider the said fact (if such fact be established by the evidence as aforesaid), in connection with all the other evidence in the cause in making up your verdict."

No. 13. "The mere possession of stolen goods, in the absence of other proofs, is not sufficient to warrant a conviction for the larceny." The word mere inserted by the judge. The word "theft" erased and larceny inserted, and the following words added: "But the defendant in this case is not on trial for the larceny of the goods referred to in the indictment."

C. S. Varian, for Appellant.

I. The court erred in overruling the objections taken by the defendant to the testimony of the witness Pryor, in which he details the circumstances of the arrest of the defendant and the finding of the so-called stolen property on his person.

It is laid down in the books that there must be clear and unequivocal proof of the corpus delicti. (Burrill, Cir. Ev. 734; Starkie on Ev. 758; 1 Wharton, 745; State v. Davidson, 30 Vt. 377-385.)

II. Upon the whole evidence the defendant should have been acquitted, as evidence of the corpus delicti was too slight. Courts will and do interfere in such cases. (Tyner v. State, 5 Humph. 383-4; Burton v. Marsh, 6 Jones N. C. 409; State v. Davidson, supra.)

Argument for Respondent.

III. The remarks of the court in overruling defendant's objections were entirely uncalled for, and could not have conveyed any but a wron impression to the jury. From his remarks the jury would and must have naturally supposed that it was necessary to show on the part of defendant conclusively that “ some one else" was in that room.

IV. Instruction four, given by the court, does not state the law, as it ignores the question of breaking, actual or constructive. (16 Cal. 431.)

V. Instruction one, given on the part of the state, is flagrantly erroneous.

The possession of stolen property does not tend in any way to prove that the same was obtained by means of a burglary. This instruction fully sustains me in the assertion, that the defendant was tried upon the theory, that he was first to be proven a criminal to the satisfaction of the jury, and then from that fact a burglary as distinguished from a larceny was to be deducted.

VI. The court erred in declining to give instructions one, five and thirteen, offered by defendant, and in adding to them and giving them as modified.

VII. The court erred in refusing instructions four, six and seven, requested by defendant. Their refusal must have resulted in great injury to defendant's case. (Burrill, Cir. Ev. 734; Starkie Ev. 758; 1 Wharton Crim. Law, 745.)

J. R. Kittrell, Attorney-General, for Respondent.

I. The corpus delicti was clearly proven in the trial of the case. To be sure its proof was made by evidence circumstantial in its nature, but the body of a crime may be so proven as may be any other fact necessary and essential to be established by proof on a trial. (3 Greenl. Ev. sec. 30, State v. Williams, 7 Jones's (N. C. R. 450.)

II. Instruction four, given by the court, correctly states the principle applicable to this case. (Com. v. Millard, 1 Mass. 6; C. & H. Notes, 432.)

III. The court below did not err in modifying the instructions asked for by the defendant. (Com. v. Millard, supra.)

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