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The next assignment of error is the refusal of the court to give an instruction asked for by counsel for the defendant to the effect that if there was a reasonable doubt in the mind of the jury as to whether the killing was done purposely, and of deliberate and premeditated malice, or accidentally, they should give the benefit of that doubt to the prisoner and find him not guilty. The error alleged to be in such an instruction is that the jury might believe the killing to have been accidental, and still consistently found the defendant guilty of manslaughter. In State v. Hardie, 47 Iowa, 647, it was held: (1) That if one use a dangerous and deadly weapon in a careless and reckless manner, whereby another is killed, the party so using the dangerous weapon is guilty of manslaughter, even though no harm in fact is intended. (2) That the degree of care in one handling a dangerous weapon is not the highest degree of care and prudence, but only such care as a reasonably prudent man would exercise under like circumstances. To the same effect is Chrystal v. Com., 9 Bush. 671, in which the court say: "It is insisted for the appellant, with force and plausibility, that if when he discharged the pistol he did not intend by having it in his hands to discharge it, or to do any unlawful act with it, his accidental killing of Ott could not have amounted to a felony, however gross may have been his carelessness in the use of the weapon; and we are referred to the case of Golliher v. Com., 2 Duv. 163, as sustaining this argument. But after a careful consideration of the question we are unable to find in the case cited, or any other decision of this court, any departure from the general rule, when applied to a case like this, that "whatever may be the difference as to degrees of homicide, a party whose negligence causes the death of another is in like manner responsible, whether the business in which he is engaged was legal or illegal. If the business was of such a character as to be felonious, the offense, it is clear, is murder. But even where the business is perfectly legal, negligence in the discharge of it, when producing homicide, is manslaughter." To this general rule there may be exceptions, as where an act careless in itself is committed with fatal results, under circumstances or at a place from which it might be inferred that no injury could happen from the carelessness of the party acting.

There was no error in this assignment; but from the views before expressed, the judgment must be reversed and a new trial ordered.

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An indictment under the Code, § 677, for assaulting an officer with a deadly weapon, must set out that the accused knew that the person assaulted was an officer.


It is error to keep the prisoner in fetters during the trial. ton, 42 Cal. 165, and State v. Kring, 1 Mo. App. 438; S. lowed.

Appeal from Marion county.

People v. HarringC. 64 Mo. 591, fol

Bonham & Ramsey, W. G. Piper, and S. F. Chadwick, for appellant. W. H. Holmes, Dist. Atty., for respondent.

WALDO, J. The appellant, William Smith, a prisoner in the state penitentiary, was indicted, under section 677 of the Criminal Code, for assaulting with a deadly weapon and wounding George Collins, an officer of the penitentiary, having the charge and custody of the prisoner. The appellant was tried, found guilty, and sentenced to death. Several errors are relied on to reverse the sentence; two of which are, that the indictment was insufficient in that it did not allege that the prisoner knew Collins to be an officer, and that the prisoner was kept with irons on his feet during the trial,-a motion of the prisoner's counsel to have the irons removed being overruled on the ground that the irons were "put on the defendant at the penitentiary and could not be removed without much delay, and it would require the work of a blacksmith to remove them," to which ruling the prisoner's counsel excepted.

The sentence must be reversed on both grounds. An indictment must be so drawn as to exclude any assumption that the indictment may be proved and the defendant still be innocent. State v. Melville, 11 R. I. 418. To constitute the precise offense charged, the court deem the rule to be deduced from the authority to be that the prisoner must have known Collins to be an officer of the penitentiary. 2 Bish. Crim. Law. § 51; Bish. St. Cr. § 664; Com. v. Kirby, 2 Cush. 581; Horan v. State, 7 Tex. App. 183; State v. Downer, 8 Vt. 424.

On the second point, that it was error to keep the prisoner in fetters during the trial, the opinion in the case of State v. Kring, 1 Mo. App. 438, leaves nothing further to be said. The case was affirmed on appeal. 64 Mo. 591. 64 Mo. 591. The point was ruled the same way in People v. Harrington, 42 Cal. 165, which seems to have been the first case in this country where this ancient rule of the common law was considered and enforced.

It is unnecessary to notice other errors assigned. Judgment reversed.

(19 Nev. 202)



Filed October 23, 1885.


Where the person who fills one public office is made by statute ex officio charged with the discharge of the duties of another office, the two offices are not by reason thereof merged into one.


Where it is required that there shall be a bond given before entering on the duties of the ex officio office, failure to do so, or failure of bond, renders the ex officio office vacant under statute, (sections 2929-2931,) but does not affect the original office.


Sections 2633, 2929, 2930, and 2931, considered, and held not to be repugnant to section 5 of the act of March 1, 1883.


Where the statute provides that a surety on an official bond may be released therefrom by filing a notice with a particular officer, (the custodian of the bond,) setting forth the name of the officer on whose bond he is surety, the amount of his liability, and that he desires to be absolved from further liability, if such notice is in the form of a note to the officer on whose bond he is surety, and contains all that is required by the statute, it will be sufficient.

Application for quo warranto. The opinion states the facts.
R. M. Clarke, for relator.

A. C. Ellis, for respondent.

LEONARD, J. This is a proceeding to determine the right (1) to hold the office of lieutenant governor; and (2) to hold the office of state librarian. At the general election for state officers in November, 1882, respondent was elected lieutenant governor. He afterwards qualified according to law, and he entered upon the duties of said office on the first Monday in January, 1883. On the seventeenth of February, 1883, an act was passed, to take effect March 2, 1883, which provides, among other things, that the lieutenant governor shall be ex officio state librarian. St. 1883, 41. On the first of March, 1883, an act was passed, to take effect immediately, which provides that "before entering upon the duties of the office [state librarian] the lieutenant governor, as ex officio state librarian, shall execute an official bond in the sum of one thousand dollars, with sureties to be approved by the governor, conditioned for the faithful discharge of his duties, and delivery over to his successor of all the books and other property belonging to the state library. Respondent gave the required bond, with J. R. King and D. L. Bliss as sureties, each in the sum of $1,000, and entered upon the discharge of the duties of state librarian.

Section 2633 of the Compiled Laws provides that "every office shall become vacant upon the occurring of either of the following events, before the expiration of the term of such office: * * Fifth. A

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refusal or neglect of the person elected or appointed to take the oath of office as prescribed in section twenty-two of this act, or, when a bond is required by law, his refusal or neglect to give such bond within the time prescribed by law. By sections 2929 to 2931 it is provided that "any surety on the official bond of any state officer, or on the bond or undertaking of any person, where, by a law, a bond or undertaking is required, may be released from any liability thereon accruing from and after proper proceedings had therefor as provided in this act." "Any surety desiring to be released from liability on the bond of any state officer shall file with the governor or secretary of state a statement in writing, duly subscribed by himself, or some one in his behalf, setting forth the name and office of the person for whom he is surety, the amount for which he is liable as such, and his desire to be released on account thereof. A notice containing the objects of such statement shall be served personally on the officer. If any officer shall fail, within ten days from the date of a personal service, to file a new or additional bond or undertaking, the office or appointment of the person or officer so failing shall become vacant, and such officer or person shall forfeit his office or appointment, and the same shall be filled as in other cases of vacancy, and in manner as prescribed by law, and the person applying to be released from liability on such bond or undertaking shall not be holden or liable thereon after the date herein provided for the vacating and forfeiting of such office or appointment."

On July 31, 1885, D. L. Bliss, one of the sureties named, filed in the office of the governor and of the secretary of state the following document in writing:

"CARSON CITY, July 31, 1885.

"Hon. Chas. E. Laughton, Carson, Nev.-SIR: You are hereby notified that I, as surety for the sum of one thousand dollars ($1,000) upon your official bond as ex officio state librarian of the state of Nevada, desire to be released from further liability on account thereof, and to withdraw and be discharged from said bond. D. L. BLISS."

It is claimed by plaintiff that an exact copy of this paper was served personally on respondent, at his office in Carson, July 31, 1885. Respondent denies the service. Its validity will be considered further on. Respondent has not filed a new or additional bond. On September 4, 1885, the governor filed in the office of secretary of state his written proclamation declaring the office of state librarian va


1. There is no vacancy in the office of lieutenant governor by reason of respondent's failure to file a new or additional bond. It is claimed and conceded by both sides that the office of lieutenant governor and the office of state librarian are separate and distinct. Making a person an ex officio officer, by virtue of his holding another office, does not merge the two into one. People v. Edwards, 9 Cal. 286; Peo

ple v. Love, 25 Cal. 520; Lathrop v. Brittain, 30 Cal. 680; People v. Ross, 38 Cal. 76; Territory v. Ritter, 1 Wyo. 333; Denver v. Hobart, 10 Nev. 31. It is true, the lieutenant governor is required to give the bond, because the lieutenant governor and librarian are one person; but he gives it for the ex officio office, not the principal one. The sureties are not, and were not intended to be, liable for any malfeasance outside of the ex officio office. We cannot say in this proceeding that respondent's right to hold the office of lieutenant governor, and enjoy the emoluments thereof, depends upon a faithful discharge of the duties of state librarian, or upon his compliance with the statute concerning the bond required of him as librarian. We cannot pronounce the office of lieutenant governor vacant, unless respondent has done something, or failed to do something, which the law declares shall produce a vacancy therein. The fault here charged is failure to give the bond required as state librarian. For the fault, if it exists, the only penalty that can follow in this proceeding is, at most, to declare that the office in which the bond is required was, by such failure, vacated and forfeited.

2. Did the office of state librarian become vacant in law, by reason of a failure on the part of respondent to file a new or additional bond within the time prescribed after the filing by D. L. Bliss, in the office of the governor or secretary of state, of a legal statement, and after personal service of a legal notice? There is nothing in the constitution of this state prohibiting respondent from holding the office of lieutenant governor and the office of state librarian. Crosman v. Nightingill, 1 Nev. 326. Such being the case, the legislature had power to create the last-named office, and make the lieutenant governor ex officio state librarian. If the legislature had the powers mentioned, it must follow that it had authority also to impose reasonable conditions precedent to the holding of the legislative office. It had power to require the giving of a bond to secure a faithful discharge of the duties of that office. It could provide that such bond should be kept good, and in case of failure to do so, that the office should become vacant. When the statute of February 17, 1883, making the lieutenant governor ex officio state librarian, and the statute of March 1, 1883, requiring the lieutenant governor, as ex officio state librarian, to give a bond, were passed, there were general statutes declaring under what circumstances all offices should become vacant, providing for the release from liability of any surety, and prescribing the result of a failure to file a new or additional bond within the time stated, after the filing by a surety of a legal statement in the office of the governor or secretary of state, and the service of a legal notice upon the officer.

These different statutes must be construed together, and in such a manner, if possible, as to carry out the legislative intent. When the statute requiring the lieutenant governor, as ex officio state librarian, to give a bond was passed, it was the law of this state that any or

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