Opinion of the Court-Hawley, C. J.

chaotic condition of affairs existing in Virginia City after said fire.

The objection of petitioner's counsel was not, however, so much that the facts did not justify the orders as that there was no showing made by the prosecution; no affidavit for continuance. This position is alike untenable. The fact of the fire, the destruction of the court-house and courtroom, was as well known to the judge as if it had been presented by affidavits from every resident of the city; that there had been such a fire was a matter of ocular demonstration and needed no proof. Courts usually require, and ordinarily should require, a showing to be made by affidavits in order to continue causes for the term when such orders are objected to by either party; but when a condition of affairs exists that is notorious, and about which, from its very nature, it is apparent there could be no conflict, it would be an idle ceremony to require affidavits setting forth the existence of such fact in order to authorize the court to act.

Suppose that when court is in session a fire breaks out in the building and is witnessed by the judge, would any one question his authority to adjourn court of his own motion until the danger was over, without requiring an affidavit showing that the building was on fire? In such a case would it not be absurd to declare that the judge could not act upon his own knowledge?

In the present case, the facts being necessarily known to the judge, no proof was required.

In Ex parte Stanley this court decided that the district court, after making an unsuccessful effort to obtain a jury at one term, had the right upon its own knowledge of the fact to continue the cause until the next term, if at such a term a trial could probably be had. (4 Nev. 116.)

We think the court was fully justified in making the orders it did, and that the records of the court show good cause for continuing the case for the term and for refusing to discharge the defendant from custody.

The orders made at the January term, A.D. 1876, passing petitioner's case when called, and giving time to the prose

Opinion of the Court-Hawley, C. J.

cution until the 21st day of February, A. D. 1876, to make proof of the destruction and loss of the indictment in said cause as a predicate upon which to move the court for a nolle prosequi in said action, for the purpose of resubmitting said cause to the present grand jury for their consideration," cannot be reviewed. The cause was not continued for the term, and we are satisfied that the regulation of the business of the term is a matter exclusively within the control of the judge and cannot be interfered with by this court, certainly not in this proceeding.

It is a well-settled legal principle that every defendant, held on a criminal charge by indictment, is entitled to a speedy trial, and this right should never be denied; but it does not necessarily follow that such trials are to be had regardless of the public condition of affairs that exists where the court is held. Ordinarily, the defendant is entitled to his trial as soon as it can properly be reached in its regular order upon the calendar, and the prosecution has had a reasonable time to prepare for the trial; but unforeseen events are liable to occur, making it absolutely necessary for a court to continue cases, even on its own motion; and whenever such events do occur, and the necessity for such order is clearly apparent, its power to so continue the case is undoubted.

Section 582 of the criminal practice act is intended to prevent arbitrary, willful or oppressive delays; and whenever this appears to be the case, the defendant is entitled to be discharged. In this case there is no ground for any imputation whatever against the court.

The petitioner is remanded.

Opinion of the Court-Hawley, C. J.

[No. 768.]

H. G. MARGAROLI, RESPONDENT, v. THOMAS MILLIGAN, APPELLANT.

CONFLICT OF EVIDENCE-NEW TRIAL.-The rule laid down in Treadway v. Wilder (9 Nev. 70), as to the weight of evidence on motion for new trial, affirmed.

COUNTER-CLAIM--How ESTABLISHED. The defendant, alleging a counterclaim, must establish it to the satisfaction of the jury by a preponderance of evidence.

APPEAL from the District Court of the Sixth Judicial District, Eureka County.

The facts are sufficiently stated in the opinion.

George W. Baker and John T. Baker, for Appellant.

The court has one province, the jury another; and when the court grants a new trial without sufficient reason appearing therefor, the appellate. court will reverse the order. (Lawrence v. Burnham, 4 Nev. 361; Scott v. Haines, 4 Nev. 426.)

Thomas Wren, for Respondent.

Refusing or granting a new trial will not be disturbed. except where there is a gross abuse of discretion, nor where the decision of the court is upon bare questions of fact. (Speck v. Hoyt, 3 Cal. 413; Smith v. Billett, 15 Cal. 26; Hanson v. Barnhisel, 11 Cal. 340; Kimball v. Gearhart, 12 Cal. 27; Scannell v. Strahle, 9 Cal. 177; Weddle v. Stark, 10 Cal. 301; Preston v. Keys, 23 Cal. 193; Wilcoxson v. Burton, 27 Cal. 232; Wilkinson v. Parrott, 32 Cal. 102; Phillpotts v. Blasdell, 8 Nev. 61.)

By the Court, HAWLEY, C. J.:

This appeal is from an order of the court granting a new trial.

The action was brought by plaintiff to recover the sum of $731.75, alleged to be due and owing him for cutting wood and burning charcoal, at a stipulated price per bushel. The

Opinion of the Court-Hawley, C. J.

defendant denies the contract as alleged by plaintiff, and sets up in his answer the contract which he admits existed between himself and the plaintiff; pleads a set-off upon a promissory note; avers that the suit was commenced before the contract was completed, and that by the terms of the contract he had the right to retain ten per cent. of the contract price until plaintiff fulfilled his contract; and further alleges that he has suffered damages by reason of the failure of plaintiff to comply with his contract. "Wherefore defendant asks judgment against the plaintiff in the sum of $186.44," etc.

The jury found a verdict in favor of plaintiff for the sum of $204.

The plaintiff thereupon moved for a new trial, which was granted by the court upon two grounds, which we are asked to review. First, that the verdict was contrary to the evidence. Second, that the court erred in giving defendant's third instruction, which reads as follows: "The burden of proving everything to entitle plaintiff to recover, is cast on the plaintiff. And if plaintiff and defendant differ in their testimony in regard to the number of bushels of coal at ten cents and thirteen and one-half cents, you must be satisfied by a preponderance of testimony in favor of plaintiff, before you can adopt his account over that of the defendant." The testimony was conflicting.

1. Under the rule laid down by this court in Treadway v. Wilder, (9 Nev. 70), we think that the order of the court granting a new trial must be sustained.

2. In order to sustain the counter-claim, the defendant was required to establish it to the satisfaction of the jury by a preponderance of evidence; and without this qualification the first clause in the instruction may have misled the jury to the prejudice of plaintiff.

The order granting a new trial is affirmed.

CA

ODE

VOL. XI.-7

Points decided.

[No. 761.]

THE STATE OF NEVADA, RESPONDENT, v. THOMAS W. RAYMOND, APPELLANT.

INDICTMENT FOR MURDER.—An indictment for murder, drawn in the approved form of the common law, held sufficient.

ENTIRE CHARGE OF THE COURT MUST BE CONSIDERED.-The entire charge of the court must be considered, in determining the correctness of any portion of it, and if it clearly appears therefrom that no error prejudicial to defendant has been committed, the judgment will not be dis turbed.

DEFINITION OF MALICE.-Where the court gave the general definition of malice, instead of the legal definition: Held, that the legal definition is more comprehensive, and that if any error occurred, it was against the state and in favor of the defendant.

CHARGE OF THE COURT-MURDER THE RESULT OF MALICE.-The court after giving the statutory definition of murder and manslaughter, and the general definition of malice, charged the jury as follows: "From the foregoing, then, it will be seen that murder is the result of malice; manslaughter the result of sudden passion, heat of blood, anger, when the defendant is supposed not to be master of his own understanding:" Held, not erroneous.

REASONABLE DOUBT.-Held, that the charge of the court and instructions given in regard to reasonable doubt were as favorable to the defendant as the law would warrant. HOMICIDE-NOT JUSTIFIED BY PROVOCATION.-The court charged the jury: "No provocation can justify or excuse homicide, but may reduce the offense to manslaughter. Words or actions, or gestures, however grievous or provoking, unaccompanied by an assault, will not justify or excuse murder; and when a deadly weapon is used, the provocation must be great to make the crime less than murder:" Held, correct. MURDER IN THE FIRST DEGREE.-The court charged the jury as follows: "If the jury believe, from the evidence, that the defendant did, with malice aforethought, willfully, deliberately, and premeditatedly assault the man Mooney, with the intent then and there to kill him, and while so engaged did kill the man Twiggs, then you will find the defendant guilty of murder in the first degree:" Held, correct.

MURDER IN THE SECOND DEGREE.-The court said in its charge: "If the jury believe * that the defendant did, with malice aforethought,

*

but without willful, deliberate premeditation assault the man Mooney, with the intent then and there to do him great bodily harm, and while so engaged did kill the man Twiggs, you will find the defendant guilty of murder in the second degree:" IIeld, correct. MANSLAUGHTER. The instruction in the court's charge that: "If the jury believe that the defendant did, upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible, assault the man Mooney, and while so engaged did kiil the man Twiggs, you will find the defendant guilty of manslaughter:" Held, correct.