Hubbard v. Gorin.

and expire at the same election. This result cannot possibly be avoided. The consequence or result naturally and necessarily flowing from any clause or section of the Constitution, it is fair to presume, was intended by the framers of that instrument. Can any other conclusion be arrived at, than that the thing so completely accomplished was intended? Certainly not. And what was intended, respecting the judicial districts created by the Constitution itself, may with equal reason be said to have been intended respecting all districts afterwards created; the section limiting the election of a person to a vacant term having reference to all terms, whether in districts created by the Constitution or otherwise. If it be the object of the Constitution to have the election of district judges for the regular term throughout the State occur at the same time, may not the Legislature, when it creates a new judicial district, provide for filling the office until the recurring of the general election, at which all the other judges are required to be elected? We think it can; for if interpreted by the light of this purpose sought to be effected by the Constitution, the term of office fixed at four years by the section quoted means, and can only mean, the regular term beginning at the general election of judges throughout the State. Thus, the Act of the Legislature effects the object of the Constitution, and is not in conflict with the section fixing the term of the judgeship at four years; as it simply provides for a special filling of the office until the general election for district judges throughout the State, at which time, under the general election law, it would naturally be filled by an election for the full term.

By this construction, what seems to us a very clear purpose of the framers of the Constitution is fully carried out, namely: the election of all the district judges throughout the State for the regular term at the same time, and also at the election of the State officers generally. (See, as fully sustaining our views, Jackson v. Emerson, 39 Missouri; Smith v. Halfacre, 6 Howard Miss. Rep. 582.)

The election of Fuller, then, was not to fill a vacancy, but for a full term. It follows, therefore, that a failure to give notice, as required when a vacancy is to be filled, could not affect his election;

The State of Nevada v. Wallin.

the law itself in such cases being sufficient notice of all the offices to be filled.

. The person on whose behalf this application is made being legally elected, is entitled to the office. Judgment of ouster must be entered against defendant.

THE STATE OF NEVADA, RESPONDENT, v. WASHINGTON WALLIN, APPELLANT.

APPEAL-POINTS NOT COVERED BY TRANSCRIPT NOT CONSIDERED. Alleged error in refusing to grant a continuance cannot be considered by the Supreme Court, if the affidavits are not properly in the transcript, and there is no bill of exceptions, nor statement.

APPEAL from the District Court of the Eleventh Judicial District, Elko County.

Defendant was indicted with John G. Watson, for the crime of robbing Charles Haynes of three thousand and three hundred dollars and other property, belonging to Wells, Fargo & Co., in Elko County, on May 1st, 1870. Being convicted, defendant was sentenced to the State prison for the term of twenty-five years.

There appears to have been a motion for continuance made in the Court below on affidavits, which are copied into the transcript; but there is nothing to identify them or show that they were used on the motion.

T. D. Edwards and Thomas Wells, for Appellant.

L. A. Buckner, Attorney General, for Respondent.

The affidavits for continuance are not embodied or referred to in any bill of exceptions or statement, and are therefore no part of the record. (People v. Price, 17 Cal. 310; People v. Thompson, 28 Cal. 218; People v. John B. Ferguson, 34 Cal. 309; People v. Wilson, 5 Nev. 43.)

The State of Nevada v. Little.

By the Court, WHITMAN, J.:

This case falls within the rule heretofore adopted by this Court. The affidavits alleged to have been used on the motion for continuance are not properly in the transcript and cannot be considered; there is no bill of exceptions, nor any statement. (State v. Wilson, 5 Nev. 43.) No objection is made upon the indictment or the instructions of the Court, and no error appears therein. The only error assigned is the refusal of a continuance; the minutes of the Court show such a ruling, and nothing more. It cannot be presumed to be erroneous, in absence of an affirmative showing to that effect.

The judgment is affirmed.

THE STATE OF NEVADA, RESPONDENT, v. WILLIAM LITTLE, APPELLANT.

INSTRUCTION TO JURY NOT TO FIND HIGHER GRADE OF CRIME. On a murder trial, the judge instructed the jury that under the law and evidence it would not be justified in finding a verdict for any higher grade of offense than man slaughter: Held, on appeal by defendant, not necessarily a charge that the State had made out a case of manslaughter.

CRIMINAL LAW-CHARGE IN DEFENDANT'S FAVOR. Where a jury in a murder case was charged that it would not be justified under the law and evidence, in finding a verdict for any higher grade of offense than manslaughter: Held, that though the instruction (which was authorized by section three hundred and seventy-six of the Criminal Practice Act) might be repugnant to the constitutional clause against charging as to matters of fact, yet it was not to defendant's prejudice, and he could not complain.

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

Defendant was indicted for the murder of George Lithicote, alleged to have been committed by shooting with a pistol, in Humboldt County, about May 1st, 1870. Being convicted of manslaughter, he was sentenced to imprisonment in the State prison for five years.

The State of Nevada v. Little.

M. S. Bonnifield, for Appellant.

It is evident from the instruction, that the State failed to make out a case of murder, and it is to be presumed that under the circumstances the jury would have found a verdict of not guilty. The Court however, said in substance: "Although the State has failed to establish the guilt of the defendant as charged, yet it is my opinion that it has made out a case of manslaughter, and I instruct you so to find." In other words, the judge expressed his opinion as to the guilt of defendant of manslaughter, and instructed the jury to find such a verdict; and that the jury was influenced by his opinion, is evident from the fact that it found a verdict in exact accordance with the instruction.

By the Court, WHITMAN J.:

The appellant was indicted for murder; tried, and convicted of manslaughter. The only error complained of is, that the Court instructed the jury as follows: "I am satisfied under the law and the evidence that the jury would not be justified in finding a verdict for any higher grade of offense than manslaughter, and will so instruct you." This, appellant argues, was to his prejudice; claiming that it was in fact an expression of opinion on the part of the Court that the State had made out a case of manslaughter, and an instruction to the jury to so find.

This is a forced construction of the language. The instruction is an advice to the jury upon the question of the innocence of the prisoner of the primary crime charged in the indictment, which, under the statute (Statutes 1861, 474, Sec. 376) the Court has always a right to give, and which the jury may or may not follow; and a submission of the facts and law to their consideration as to the question of his guilt of the only remaining crime within the range of the indictment. It is possible that the statute referred to may be repugnant to that clause of the Constitution which provides that "judges shall not charge juries in respect to matters of fact." However that may be, the complexion of the present case is not altered; as admitting such repugnance, the error of the instruction was against the State, and consequently not to appellant's wrong.

The County of Ormsby v. The State of Nevada.

A case may be imagined where the instruction would be wrong, as for instance: where the prosecution failed to produce any evidence tending to prove any crime within the indictment. If that is this case, it was the business of the appellant to bring the evidence to this Court for inspection. This has not been done, and therefore the only legal presumption is that the instruction was warranted by the evidence.

A review of the whole charge as contained in the transcript justifies the assertion that the appellant has no cause of complaint. The Court first says: "Gentlemen of the jury-by the statute you are made the judges of the degree of the crime committed, if you find that any was committed at all, by the defendant." Then follows a separate definition of murder in the first and second degree-manslaughter and excusable homicide, closing with the instruction first quoted. No ingenuity can conjure an error therefrom to appellant's prejudice.

The judgment is affirmed.

THE COUNTY OF ORMSBY, RESPONDENT, v. THE STATE OF NEVADA, APPELLANT.

RENT OF PUBLIC BUILDINGS LEASED TO STATE. Under the Act of 1869, providing for the payment of claims against the State "for services or advances," (Stats. 1869, 104): Held, that the rent of premises occupied by the State was embraced within the meaning of the word "advances."

POPULAR MEANING OF ADVANCES." The word "advances," as employed in the Act of 1869, relating to claims for services or advances to the State, (Stats. 1869, 104) is there used rather in its popular than in its strict legal definition, and includes rents of buildings used by the State.

STATUTORY CONSTRUCTION-POPULAR AS OPPOSED TO TECHNICAL MEANING OF WORDS. The rule that technical words used in a statute are to be taken in their technical sense, is subject to the qualification that it is only when used with reference to the particular subject as to which they have a special meaning, that they are to receive such meaning; but that if used generally, their popular meaning is the one intended.

APPEAL from the District Court of the Second Judicial District, Ormsby County.