State v. Mewhinney

DEICE, J.

Appellant was charged with, and, upon a trial by a jury in the district court of Salt Lake'county, convicted of, murder in the first degree. The court, in due time, entered judgment sentencing appellant to suffer death. He appeals from that judgment.

*139 Numerous errors are assigned. Before proceeding to a consideration of tbe assignments 'relating to tbe alleged errors occurring at tbe trial, we shall dispose of those which relate to the quashing of the information and the -impaneling of the jury.

Counsel for appellant at the proper time interposed a motion to quash the information filed in the district court against him upon the grounds:

1 (1) That the magistrate before whom the original complaint was filed, and before whom appellant was taken after his arrest, did not inform or advise him “of his rights to the aid of counsel;” and (2) because “the testimony of the, or any of the, witnesses against him was not reduced to writing by the magistrate.” ‘ The first ground is clearly untenable. The transcript of the proceedings before the magistrate affirmatively shows that the appellant “waived the service of an attorney.” If this means anything, it means that appellant was apprised of his right- to have such services.

2 In-the absence of any shewing to the contrary, we must presume that the magistrate performed the duties imposed upon him by our statute. Such is the holding of the courts. . (People v. Figueroa, 134 Cal. 159, 66 Pac. 202.) In the case at bar, as we have pointed out, it, however, affirmatively appears that appellant waived any aid or assistance from counsel.

3 Referring, now, to the second ground of the motion, it is true that Comp. Laws 1907, section 46Y0, in terms provides that “the testimony of each witness in cases of homicide must be reduced to writing as a deposition, by the magistrate, or under his direction.” This section in substantially the same form was in force long before Utah became a state. 2 Comp. Laws 1888, section 4883. It was carried into the Revised Statutes of 1898 as section 46 Y0 of that revision and is now known by the same number in Comp. Laws 190Y, sufra. Since said section'was originally passed the Constitution of this state was adopted where, in article 1, section 13, it, among other things, is provided:

*140 “Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the state, or by indictment with, or without such examination and commitment.”

Although the language of section 4670, supra,, is positive and without exception that in homicide cases the testimony of the witnesses must be reduced to writing, yet, in view of the constitutional provision that the accused with the consent of the state may waive the examination the statute cannot be given application according to the strict letter thereof. If the accused or the officer representing the state desires an examination to be held, then of course witnesses must be heard, and if they are heard their testimony must be reduced to writing as required by the statute. If, however’, no examination is desired and is expressly or by implication waived, as held by us in State v. Gustaldi, 41 Utah, 63, 123 Pac. 897, then there is no need of hearing any testimony, and hence there is none to be reduced to writing. In the case at bar the transcript of the proceedings had before the committing magistrate affirmatively shows that appellant, with the consent of the state, expressly waived the preliminary examination mentioned in the Constitution. This he could do, and, having done so, he likewise must be held to have waived the necessity of the magistrate to hear any testimony with respect to the charge filed against him. There was therefore m> testimony to be reduced to writing. Nor can there be any doubt as to appellant’s competency to waive the examination, nor as to having done so, since he does not assail the truth of the statements to that effect contained in the magistrate’s transcript, as he could have done under the ruling of this court in State v. Gustaldi, supra. See, also, upon this point, State v. Ritty, 23 Ohio St. 562. The motion to quash, for the rear sons aforesaid, was therefore properly overruled.

*141 4 *140 It is also insisted that the court erred in refusing to sustain certain challenges for cause that were interposed by ap~ *141 pellant’s counsel against at least four prospective jurors upon tbe ground of both expressed and implied bias. It is accordingly .urged that appellant was required to remove those jurors from the panel by the exercise of four peremptory challenges, which reduced by that number the quota of such challenges vouchsafed to him by our statute. We have carefully examined all of the testimony of those jurors given upon their voir dire, and we are satisfied that this case falls squarely within the rule laid down by this court upon this question in the recent case of State v. Thorne, 41 Utah, 414, 126 Pac. 286. The only difference between this and the Thome Case is that, while there might have been some doubt in our minds with respect to the qualifications of some of the challenged jurors in the Thome Case, there is no such doubt in this case. If there were, however, the rulings of the trial court fall squarely within what is said in the Thorne Case, supra. Further, by'carefully going over the jurors’ examination, we are impressed with the fact that they were fair, impartial, and conscientious men, and the trial court was clearly justified in overruling the challenges. This contention, therefore, cannot be sustained.

5 It is further contended that the court erred in requiring appellant to exercise his peremptory challenges at times when the jury box was not filled with jurors. The jury was impaneled and the challenges were required to be exercised in the manner stated by Mr. Justice McCarty in State v. Riley, 41 Utah, 225, 126 Pac. 294. We there held that the course of procedure followed in that case was proper. This case is therefore controlled by that one, and this assignment must also fail.

Passing to a consideration of the assignments relating to the alleged errors occurring at the trial, it becomes necessary to state as briefly as possible the controlling facts. From the evidence it is made to appear that the homicide in question occurred while appellant and an accomplice were engaged in the perpetration of or attempt to perpetrate a robbery. The undisputed facts relating to the homicide are substain- *142 'daily as follows: On the afternoon of the 6tb day of October, 1911, between three and four o’clock, a Mrs. Fuller, after meeting one Sol. S. Brown, a friend of hers, on the street in Salt Lake City, went with him to her room on the second floor of the Bomona rooming house, which is located on the comor of Second East and Second South streets in said city. Mr. Brown wore a large and conspicuous diamond ring on one of his fingers of the approximate value of $350. In going upstairs to the room Mrs. Fuller noticed the appellant and his accomplice in the hallway. Within a few minutes after Mrs. Fuller and Mr. Brown had entered the room aforesaid, there was a knock at the door, and Mrs. Fuller went to open it. Upon opening the door she saw two men in the hallway (one of them the appellant) with’ handkerchiefs tied over the lower portions of their faces. As soon as she had opened the door, they forced their way into the room. One of the men had a revolver in his hand and immediately upon entering the room pointed it at Mr. Brown, and the other remained standing at the door, which he had closed after him. Mr. Brown at once went forward and grappled with the one having the revolver, catching his hand or forearm in such a manner as prevented him from shooting Mr. Brown, and a hard struggle ensued between them. Mr. Brown seemed to hold his own, and the man with the revolver, seemingly, could make no headway in obtaining the coveted prize, the ring. He called to his accomplice, who still stood guarding the door, for help, and said, “Pull the ring off his finger.” The accomplice immediately left the door and went to the assistance of the other and in doing so struck Mr. Brown several times on the head with what is termed a “black-jack,”- inflicting scalp wounds which subsequently bled somewhat freely. The struggle now went on between .the three, but as soon as the one had left the door Mrs. Fuller ran out of the room, down the hallway, and into the street crying for help as she went. Considerable uproar was thus caused, and it was not long before the man who had stood by the door also slipped out of the room,' Mr. Brown and the other still continuing the *143 struggle for supremacy, while Mr. Brown was also crying for help. Immediately after the one with the black-j ack had left the room Mr. Brown heard the steps of a man in the hallway approaching the door which was now standing ajar. The one with the revolver, who was still continuing the struggle and still trying to obtain the diamond ling, apparently also heard the steps of the approaching stranger, whose name it was afterwards learned was Erickson, and he then also broke away from Mr. Brown, who was becoming quite weak from the blows he had received on his head and the continued struggle, and ran out of the door into the hallway which led downstairs into the street. Immediately after getting outside of the door of the room in which the struggle-took place, the one with the revolver was met by Mr. Erick-son, who was coming to Btown’s' assistance, and as soon ass he saw Mr. Erickson, and within a very few feet from the door, he raised his revolver and shot Mr. Erickson, the bullet penetrating his chest and passing through a portion of the heart. Mr. Erickson staggered back into ai room near by and fell on the floor and in a few minutes thereafter expired from the effects of the bullet wound. Both of Brown’s assailants had in the meantime run down the steps and had reached the street, where they separated. It was only a few minutes afterwards, however, when the one who had the revolver and who shot Erickson was apprehended on the street in front of the rooming house while in the act of inducing an expressman, whose express wagon he had climbed onto, to drive him hurriedly away from the place. He was immediately taken to the police station after he was. apprehended as aforesaid. A short time after the arrest he was identified as the one with the revolver by both Mrs. Fuller and Mr. Brown, and was further identified as the one who did the shooting and as being the appellant in thig. case. The other one was apprehended later on the same day- and was also identified by Mrs. Euller and Mr. Brown as-, the one who was with appellant and the one-who struck Mr. Brown with the black-jack. During the struggle in the room the handkerchiefs were torn, *144 from tbe faces of the two men, and a full view of their features was thus obtained by both Mrs. Fuller and Mr. Brown. There is much other evidence respecting the identity of appellant and his accomplice which we need not refer to here. It must suffice to say that under the evidence no other conclusion is permissible than the one arrived at by the jury, namely, that the appellant is the one who had the revolver and who killed Mr. Erickson, and that the killing was done within and as a part of the res gestae of the attempted robbery.

6 It is contended that the court erred in one of its rulings which it is said trenched upon the province of the jury with respect to an important fact in the case. The matter arose during the progress of the trial and while counsel for appellant was cross-examining the chief of police, who was one of the state’s witnesses. The witness had testified that at the time the appellant and his accomplice were brought to the police station some articles, including ai cap, came into his possession, which it was shown were either taken from appellant’s person when he was brought to the station or identified at the time as having been in his or his accomplice’s possession at the time of the attempted robbery, or immediately thereafter. Appellant’s counsel, Mr. Armstrong, on cross-examination, questioned the witness with regard to the articles aforesaid, and Mr. Farnsworth, the prosecuting attorney, interposed an objection to the method pursued by counsel. The record of the proceeding in this respect reads as follows:

“Q. So that you were not very careful in designating these different articles, about how they came into your possession? A. I was reasonably careful, as you see by the tags. Q. The important one, however, does not seem to be very well designated ? A. Which is the important one ? Q. The cap. Mr. Farnsworth: We object to counsel making any such assumption as that. The Court: The objection is sustained1. It implies something that is not of record, not evidence in the case. Mr. Armstrong: Exception.”

*145 Tbe contention that in sustaining the foregoing objection, and in making the remark, the court invaded the province ■of the jury, seems to us untenable. In view that the record discloses that counsel were given every opportunity to lay all the facts before the jury, the matter seems somewhat trivial. While the objection was extremely technical, yet the supposed question to which th,e objection was sustained was, in its nature, an assumption of a fact by counsel rather than a question to the witness which he was expected to answer. It is very clear that no prejudicial error resulted or ■could result from the court’s ruling, and this assignment must therefore be overruled.

7 The contention that the court erred in admitting in evidence the articles of wearing apparel and other articles found on or taken from appellant’s accom-pliee after the attempted robbery is clearly without merit. Wharton, Crim. Ev. (10th Ed.) section 312, p. 610.

Counsel for appellant strenuously insist that the court •erred in charging the jury upon the question of insanity. It may be said that appellant produced some evidence in ■support of his plea of insanity. It was contended at the trial, and is now insisted, that appellant had acquired the habit of using drugs, such as opium and morphine, and that their use affected his mental capacity. To establish that fact he produced in evidence the depositions of two witnesses of Terre Haute, Ind., one of whom testified that he was acquainted with appellant from 1900 to 1907 and that during that period of time appellant habitually used “both ■opium and morphine.” When asked what effect the use of those drugs had upon appellant’s mental condition as observed by the witness, he said:

“The use of drugs seemed to make him very thin and at times dull and stupid.”

When pressed for further particulars with regard to the ■effect that the use of drugs had upon appellant’s mind, the witness said:

“I am not aware of any specific facts and circumstances.”

*146 The testimony of the other witness is substantially the-.same; the only difference being that the other one said that appellant used the drug for a period of about five years between 1900 and 1907. After the year 1907 the witnesses-did not come in contact with appellant. Upon substantially the foregoing testimony the two witnesses were permitted to give their opinion with 'respect to the sanity of" appellant, and they both testified that in their opinion appellant was insane, and that the insanity was caused through the use of drugs as aforesaid. It also was shown that when appellant was arrested he had some morphine on his person, and that he afterwards called for some, and that the city physician ordered the officers to permit him to have-about two grains daily for some time after his arrest. In addition to the foregoing testimony respecting appellant’s-insanity and the use of drugs, a young doctor who had about three years’ experience in the genéral practice as a physician, and without any further experience, was called as an expert upon the question of insanity. His conclusions regarding appellant’s .mental condition were mainly based upon the effect that the habitual use of opium or morphine-usually has upon the mind. The doctor, however, did not testify from actual experience, as his answers to the following questions clearly indicate:

■ “Q. And of these alkaloids you say that morphine is the-most active and the most detrimental to the faculties of the-mind? A. I have read authorities stating that fact. Q. You don’t state that of your own knowledge as a chemist or anything? A. No, sir; I could not do that. Q. Not from your own practical experience, but from your reading-of it? A. Yes, sir.”

Upon substantially the foregoing testimony the doctor-was permitted to answer a hypothetical question which was-propounded to him by appellant’s counsel, in which the facts as- testified to by the witnesses aforesaid, together with the-effect that the use of drugs had on the mind and appellant’s habits with regard to their use as disclosed by the evidence,, and further that the robbery was attempted in broad day *147 light in a well-tenanted apartment or rooming house, and a few other unimportant facts, were recited. The doctor in answering the question said that in 'his opinion appellant was insane when he attempted to commit the robbery and when he shot and hilled the deceased, Erickson. Upon the part of the state there was abundant testimony to the effect that appellant’s conduct and demeanor immediately after the shooting and since then were always normal and rational. A physician who had frequently observed him after ■the shooting also testified that he did not use morphine in •excessive quantities, and did not have the appearance of -one who did so, and that in his judgment appellant at the time of the commission of the offense was and ever since has been sane. Upon the question of insanity the court instructed the jury that, before they could find appellant .guilty as charged in the information, they “must be satisfied beyond a reasonable doubt from all the evidence in the case that the defendant at the time of the perpetration of, • or attempt to perpetrate, such robbery or burglary, had formed the intent to commit such robbery or burglary, and that he had the mental capacity to distinguish between right and wrong with reference to said robbery or burglary; and, if you should find from the evidence in this case that the ■defendant at the time in question had not the mental capacity to form an intent to perpetrate a robbery or burglary, then you cannot convict him of murder in the first degree.” The court further instructed the jury upon this question that: “The test of responsibility for a criminal act, when insanity is relied upon as a defense, is the capacity of the defendant to distinguish between right and .wrong at the time of and with respect to the act which is the subject •of inquiry; and, if after a fair and conscientious consideration of all the facts and circumstances in evidence you are not satisfied beyond a reasonable doubt that the defendant had the capacity to distinguish, between right and wrong at the time of and with reference to the act in question, then you cannot convict him.” The same thought in other forms was repeated in several of the instructions.

*148 It is insisted that the capacity to distinguish between right and wrong with respect to the criminal act in issue is not the true test of mental responsibility. It is contended that, in addition to that test, the jury should also-be told that they must find that the accused had the will power to overcome or resist the impulse to commit the act ■ with which he stands charged. Let us assume at the outset that, under certain circumstances where a plea of insanity is interposed as a defense, it may become necessary to charge the jury as contended for by counsel, and that in all cases where such a plea is interposed it would be unobjectionable although not necessary to do so. And let us assume further-that in this case it would not have been at all improper for the court in its charge to have gone farther into the-question of insanity along the lines suggested by counsel. The foregoing assumptions are, however, not decisive of the question we are called upon to determine. In reviewing a charge upon any particular subject, as well as in reviewing the requests refused, we must constantly keep in mind the facts and circumstances of the particular case as they are made to appear from the evidence. What meager evidence of insanity there is in this case is limited entirely to generalities. The whole superstructure of the so-called insanity claim is built upon the statements of two laymen, who, for some years prior to 1901 (three years before the murder in question was committed), were acquainted with the appellant, and who testified that during that time— that is, during the time they knew him — he was addicted to the use of morphine and that the use thereof “at times made him dull and stupid.” Basing their opinions upon these meager facts, the two laymen tell us that the appellant was insane. In addition to their opinions, we also have a young doctor, who, after having the foregoing evidence detailed to him, also is willing to venture the opinion that the appellant was insane. There is absolutely no evidence of any actual mental lesions or any mental disease of any kind or of any hallucinations or other mental derangement..

*149 8 All that we have here, therefore, to establish insanity and to overcome the legal presumption of sanity, are a few general guesses based upon a few isolated facts which in and of themselves do not necessarily point to either insanity or to any serious mental derangement.

9 If the evidence in this case, therefore, is considered for the purpose of raising a doubt of the sanity of appellant, it can be considered for no other purpose except to show what may be called simple or general insanity. The existence of mental lesion, disease, or other aberration cannot be assumed or inferred, because there is absolutely no evidence to support such an inference. "Under such circumstances, the test of responsibility that is applied by the overwhelming weight of authority is substantially the one given by the district court in this case in its charge to the jury. That test is thoroughly discussed by the authors of the following works: 1 Wharton, Crim. Law (10th Ed.) sections 50-55; Wharton on Homicide (3d Ed.) sections 531, 539; 1 Wharton & S. Med. Jur. section 115, and cases there cited. See, also, People v. Calton, 5 Utah, 458-460, 16 Pac. 902; 3 Thompson on Trials (2d Ed.) sections 536-541, where the test is approved.

10 We need not pause here to go over the reasons why the test is deemed' a proper and a practical one except in those cases where the evidence discloses some special mental weakness, disease, delusion, or aberration. That the test in a ease like the one presented by this record is the proper one impresses us as clearly sound, and this impression is not weakened after considering counsel’s argument advanced in behalf of their contention. They, in effect, argue that if appellant was controlled by an irresistible impulse to commit the robbery — that is, if he did not have the will power to resist the temptation or impulse to rob or steal — then he should be acquitted, although he possessed the mental capacity to distinguish between right and wrong with respect to the homicide. This, in our judgment, is neither good law nor good sense. Suppose A. is charged with the murder of B., which is committed because *150 Fe is detected by B. while be was in the act of committing a robbery or .larceny. Upon being tried for the murder, A., however, establishes by indubitable proof that for a long time prior to the commission of the larceny he was a confirmed kleptomaniac; that is, that he was afflicted with that species of insanity which manifests itself in an irresistible impulse or desire to steal, and that he lacked the will power to control or overcome the impulse. Would this proof be sufficient to excuse the homicide? We think not. In the assumed case A. committed murder for precisely the same reason that appellant killed Erickson, namely, to avoid apprehension and possible conviction for the attempted robbery. Under such circumstances, the test ■of mental responsibility, therefore, is not whether the accused is a confirmed thief and has not the will power to resist theft, but it is whether he had the mental capacity to distinguish between right and wrong with respect to the act with which he is charged, in this case murder. According to counsel’s theory, although the accused may have had ample mental capacity to realize that it was wrong to kill, yet, if he was afflicted with an. irresistible impulse to steal, he ought to have been acquitted of both crimes. This, in effect, would be an inducement to every thief to slay every one who discovered a theft committed by him.

There is nothing in the evidence in this case which would have justified the jury in finding that appellant was afflicted with any mental lesion, disease, or weakness, and hence it was not necessary to go into those matters in the charge in charging upon the general subject of insanity. To hold, therefore, that the court should have charged as contended by counsel, and that the'refusal of .the court to 'do so constitutes prejudicial error, is to disregard the evidence and the reasons which require such a charge, and further requires us to assume facts and conditions not directly testified to by any one nor legitimately deducible from any facts and circumstances that were testified to. The court, in our judgment, in submitting the question of general insanity *151 to tbe jury, clearly safeguarded all of appellant’s rights in that regard.

11 We repeat that the question here is not the abstract one whether the court could not have properly enlarged npon the different phases of insanity or mental weakness, but the question we hare to nieet is whether the evidence required the court to so enlarge upon those subjects, and whether in having failed to do' so the appellant was prejudiced. We are clearly of the opinion that the appellant was not prejudiced, and that the judgment, therefore, should not be reversed upon this ground.

When the cases cited by counsel upon this question are analyzed, it will be found that in all of them there were some facts and circumstances which made the doctrine contended for by them applicable to some extent at least. It must be conceded, however, that there are a few cases which seem to hold that the doctrine is applicable upon a mere general claim of insanity as was the case in the case at bar. We cannot yield assent to such a doctrine.

12, 13, 14 It is further insisted that the court erred in refusing to charge the jury with respect to second degree murder. This question, like the one of insanity, must of necessity, to a large extent at least, be controlled by our statute when considered in connection with the evidence adduced at the trial. In this connection it is contended that inasmuch as the information was framed npon the theory of a deliberate and premeditated murder and in view that the court submitted the case to the jury upon that theory as well as upon the statute which provides that murder “committed in the perpetration of or attempt to perpetrate robbery” also constitutes murder in the first degree without deliberation or premeditation, therefore the court should also have submitted the question of second degree murder to the jury. It is true that the court submitted the elements of deliberation and premeditation to the jury. From that it does not follow, however, as contended, that the court should also have submitted the question of an unpremeditated or second degree murder to the jury. Where *152 there was some evidence in this case from which the jury could have found a deliberate and premeditated murder, yet the jury would not have been justified in finding that the murder in question was not committed in an attempt to perpetrate a robbery, and upon the latter question there is not even room for doubt or conflict. Under our statute a murder so committed constitutes murder in the first degree and legally can constitute nothing else. .True, a jury in any homicide case has the power to disregard the evidence and may find one who is clearly guilty of first degree murder guilty of manslaughter or acquit him.

From this it is assumed that, because a jury may do this, therefore a court must submit all the degrees of murder, and thus give the jury the right to pass upon the several degrees of murder. This contention loses sight of the legal principle involved in the statute just referred to which does not segregate murder committed in the perpetration of or attempt to perpetrate a robbery into degrees. While it is true that under our jurisprudence a jury has the power, with or without reason, either to reduce the degree of the crime, if it be divided into degrees, or acquit the accused, it does not follow that a court is bound in effect to charge that they may disregard the law, the evidence, and their oath in arriving at a verdict. Neither is it correct to say that, by not submitting the question of second degree murder in a case where the killing was perpetrated in an attempt to rob, the court thereby in effect coerces the jury to find the accused guilty of murder in the higher degree. Whether such might be the effect under our statute depends upon the evidence. If the evidence justifies a finding that the murder was committed in the perpetration of or attempt to perpetrate a robbery, it is the duty of the court to charge that, if they find beyond a reasonable doubt that the murder was “committed in the perpetration of or attempt to perpetrate a robbery,” they should find the accused guilty of first degree murder, and if’ the evidence, as in the case at bar, does not justify the jury under their -oaths to find otherwise, the court need not submit the ques *153 tion of second degree murder at all, although, it might do so without committing error against the accused. In such a ease, in merely charging on first degree murder the court does not, as is contended, withhold anything from the jury, but simply charges the law. It is the law that fixes the degree of the offense, and when the facts are not in dispute and clearly show that the murder in question was committed as aforesaid, the jury have neither the legal nor a moral right to refuse to follow the law and in refusing to do so in effect amend or repeal the statute.

Of course, if the jury refuses to be bound by either law or fact, a court is powerless, but the court is not required to partake of the wrong and in effect suggest to the jury that they may do what the law does not- sanction. Here again the question is not whether it would have been improper for the court to have charged with regard to murder in the second degree, but the question is whether under all the facts and circumstances of this case (not some other case) the trial court committed prejudicial error in refusing to so charge. Upon this question we are of the opinion that there was absolutely no evidence either direct or inferential which would have justified a finding by the jury other than that the murder in question was committed in an attempt to perpetrate a robbery. If this be correct, why submit a question to the jury upon which an affirmative •finding can in no event be justified? Is not the question of whether there is any evidence in support of any essential fact as much a question of law in a homicide case as any other? Must the court in advance abdicate its prerogatives to the jury simply because that jury has the power, and perhaps the inclination, to disregard both law and fact ? In this case the jury, however, followed the law, and in passing upon the facts observed their oath, and hence fully discharged their duty. Further, the case was fairly and impartially tried. What plausible reason, therefore, can am appellate court give for interfering with the verdict and judgment ? Again, this case in principle is not distinguishable from State v. Thorne, supra, in which we held that *154 under a similar' state of facts the court committed no error in refusing to charge on second degree murder.

In passing this point we desire to say that a trial court should, in every case where there is any direct or inferential evidence with respect to the different degrees of murder, charge the jury with regard to all the degrees, and this rule should be followed where there may be any doubt with regai’d to whether the higher degree is established or not. This is contemplated by our statute which divides crimes into degrees and which requires the jury to find in the lesser ■degree in case of doubt. That statute should, however, not be given controlling effect in a case of murder committed in the perpetration of or attempt "to perpetrate robbery, because a murder so committed is not divisible into degrees. In such a charge of murder the killing was either committed in the perpetration of or attempt to perpetrate robbery or it was not. If the evidence, as in the case at bar, is clear ¡and undisputed that it Was, then the murder is first degree murder and nothing else, and the mere fact that the jury has the power to ignore the evidence and find otherwise does not change the law. In this case the jury was by force of the evidence compelled under their oaths to find that the murder was committed in an attempt to perpetrate robbery. By authority of what law or system of logic could they also legally have found that it was not so committed? If they could not have so found without ignoring both law and fact, no prejudicial error could have been committed in not telling them that they might do s.o. '

The following cases are based upon a statute' like ours with nespect to murder, and it is accordingly held that, if the jury find that the murder was committed in the perpetration of or attempt to perpetrate a robbery, they have no alternative save to find the perpetrator guilty of murder in the first degree: State v. Gray, 19 Nev. 212-218, 8 Pac. 456; State v. Williams, 28 Nev. 407, 82 Pac. 353, and cases there cited. See, also, People v. Wardrip, 141 Cal. 229, 74 Pac. 744. Some of the very cases that counsel cite to sustain their contention that the court should have charged the jury with re *155 spect to second degree murder bold directly to the contrary .. For example, in Davis v. United States, 165 U. S. at pages 378 and 379, 17 Sup. Ct. at page 362, 41 L. Ed. 750, Mr. Justice Brewer, in referring to the question now under consideration, said:

“There was no testimony to reduce the offense, if any there was,, below the grade of murder. If the defendant was sane and responsible for his actions, there was nothing upon which any suggestion of any inferior degree of homicide could be made, and therefore-the court was under no obligation (indeed, it would simply have been confusing the minds of the jury) to give any instruction upon a matter which was not really open for their consideration.”

So here: If the jury believed that the appellant fired the fatal shot and that he was mentally responsible, then they had no choice, and it was their sworn duty to find him guilty of murder in the first degree.

15 It is also contended that the court erred in refusing to charge the jury that, if appellant had abandoned the intention to rob before he shot Erickson, then the killing would not- have been committed in. an attempt to rob, and therefore, unless it was a “willful, deliberate, malicious, and premeditated killing,” the killing would not have been murder in the first degree. The court properly refused to so charge, if for no other reason than that there was no evidence whatever that appellant had voluntarily abandoned the attempted robbery before he fired the fatal shot. Indeed, the only evidence upon the question is inferential,, and that is. directly contrary to such a claim. Upon this question the cases last above cited are decisive against counsel’s contention.

16" Counsel for appellant requested the court to charge the jury that one who is charged with a criminal offense is presumed to have a “good character and reputation.” The court refused the request in the language proposed, but charged the jury upon that subject as follows:

“When a person is charged with the commission of a crime, the law presumes that he is a man of average char *156 acter, and the failure to call witnesses to prove bis general .good character raises no presumption against it.”

It is now insisted that the court erred in giving the charge aforesaid and in refusing the proffered one. It is contended that the error consists in using the qualifying adjective “average” instead of “good” in defining the presumption with respect to character. It is true that the adjective usually used is “good.” Many authorities are, however, to the effect that the law presumes one accused of crime to be possessed of a fair, or ordinarily fair, character. In the case of Mullen v. United States, 106 Fed. 894, 46 C. C. A. 24, cited by appellant’s counsel on this point, in referring to the presumption now under consideration, it is said:

“It is in consonance with the general principle of law that a man is presumed to stand ordinarily well, and to have at least the average qualities of morality and good conduct.”

In People v. Fair, 43 Cal. at page 149, Mr. Justice Wallace says that the law presumes every one possessed with a “character of ordinary fairness.” To the same effect is 1 Bish. Crim. Proc. (3d Ed.) section 1112, and Underhill, Grim. Ev. section 76., While perhaps it would have been better if the court had used the phrase “good character,” yet, in view of all that the court said in the instruction, the jury could not have been misled by the use of the word “average.” It seems clear to us that the appellant could not have been prejudiced from anything said or omitted, and therefore this contention cannot prevail.

17 Finally it is contended that the court erred in its charge to the jury with respect to their right to recommend life imprisonment in ease they found appellant guilty of murder in the first degree. The court, in calling at■tention to the statute upon that subject which confers the right upon the jury to recommend life imprisonment in case they find appellant guilty of first degree murder, charged as follows:

“In considering this question you are not restricted by any rule of law or public policy, but are entitled to decide the question from such considerations as may appeal to you as *157 ■reasonably and conscientiously entitled to be weighed in determining tbe giving or withholding of such recommendation.”

It is contended that this charge is open to the same objection as the one which we condemned in the case of State v. Thorne, 39 Utah, 208, 117 Pac. 58. This contention is not tenable. The court in this case in no way did, nor attempted to, direct or control the judgment of the jury in arriving at a conclusion upon the question of recommendation. That is what was attempted in the Thome Case, and it was that at-' tempt which we condemned. While the trial courts discharge their full duty under the statute when they direct the attention of the jury thereto, and that thereunder it is their province to make or withhold a recommendation of imprisonment for life in case they find the accused guilty of murder in the first degree, yet the mere fact that a court may say what is said in the instruction in this case cannot have the effect of avoiding the verdict and the judgment based thereon. To so hold would amount to a mere travesty.

In conclusion we desire to say that after a careful examination of the entire record we cannot avoid the conclusion that the appellant has had a full, fair, and impartial trial. Moreover, all of his rights have been carefully safeguarded at all stages of the trial by vigilant and able counsel, who, although acting without any reward or compensation, have manifested a most commendable interest in the prisoner’s behalf.

The judgment should be, and it accordingly is, affirmed.