its property pertaining to its road. Under section 6 of the revenue act (paragraph 3130, Comp. Laws; St. 1881, p. 64) it is inade the duty of all persons and corpora. tions to furnish the assessor, on demand, with a written statement, under oath, of all his or its personal property or real estate within the county. It is said that this section must be construed in connection with the statute of 1875, above referred to, and that the statement should contain not only a list of the property, real and personal, pertaining to the road, but a list of all of the property of the party. The statute of 1875 relates only to railroad property, and the defendant strictly complied with its requirements in so far as the contents of its statement is concerned. If the defendant had sought a reduction upon the valuation of property of a general nature, and not appertaining to its road, the position assumed by the respondent would have defeated a reduction; but no question affecting property of that nature arises in this case. The reduction was asked and made only upon the valuation of the road and roadbed and rolling stock; in other words, upon the road itself, and property necessarily pertaining thereto. Objection is also made to the affidavit of the general superintendent. The affidavit is as follows: "State of California, City and County of San Francisco-ss.: A. N. Towne, being first duly sworn, deposes and says: My name is A. N. Towne, and I am the general superintendent of the Central Pacific Railroad Company. That the length of said railroad in said Lander county is twenty-six and seventy one-hundredths (26 70-100) miles, and the value thereof is one hundred and sixty thousand two hundred dollars; and the within statement sets forth a list of the property, real and personal, (except rolling stock,) pertaining thereto; also the whole length of road within this state, and the number and value of all locomotives and cars, commonly known as 'rolling stock,' and on said road within this state, and an apportionment of the value of such rolling stock to said county, estimated according to the proportion which the portion in said county bears to the whole length of said railroad within this state; and that I make such statement in pursuance of an act approved February 27, 1875, entitled 'An act supplementary to an act entitled “An act to provide revenue for the support of the government of the state of Nevada, approved March 9, 1865, and the acts amendatory thereof, and to define the manner of assessing railroads proper in the state. A. N. TOWNE. [Seal.] Subscribed and sworn to before me this third day of June, A. D. 1881. CHARLES J. TORBERT, Commissioner of Deeds for the State of Nevada, residing in the city of San Francisco, state of California." The verification, it will be observed, was made in the state of California. The words "this state," as they occur in the body of the affidavit, strictly considered, refer back and relate to the words "state of California" as their antecedent. But the affidavit is appended to the statement, which purports to contain a list of the property of the defendant in Lander county, and in the state of Nevada, and the number of miles of track in the counties of Washoe, Lyon, Churchill, Humboldt, Lander, Eureka, and Elko; and the affidavit declares that it is made in pursuance of an act of the legislature of the state of Nevada. Evidently it was intended to verify the contents of the statement relating to property in the state of Nevada, and this intention is so clear that we think the instrument should be received in accordance with its manifest intent, and not defeated by a strict grammatical construction. We are now brought to the question whether the fact that the statement was delivered to the assessor should have appeared upon the records of the board of equalization. The statute provides that the clerk of the board of county commissioners "shall keep a full and complete record of all the proceedings of the board, and all their proceedings shall be entered on the records." The reason that the record must show that a complaint has been made concerning the valuation of property is that the making of a complaint is a proceeding before the board. But the delivery of the statement by the property owner to the assessor is not in any sense a proceeding of the board. It is a matter entirely outside of the board, and between parties foreign to it. It is certain that the board is not authorized to reduce the assessment of one who has neglected to make the statement required by the statute. But suppose the fact existed, although the board were entirely ignorant of it, would not a reduction made under such circumstances be good? We have no doubt it would. Appellant further assigns as error the refusal of the court to grant a nonsuit, and its refusal to give certain instructions. The court was clearly right in refusing the nonsuit. The instructions will not be considered because no exception was taken to the refusal to give them. Judgment and order overruling motion for new trial reversed, and cause remanded. (17 Nev. 275) STATE V. COLLYER. (No. 1,137.)1. (Supreme Court of Nevada. Jan. Term, 1883.) MOTION TO QUASH INDICTMENT - ILLEGAL GRAND JURY ASSAULT WITH INTENT TO KILL-INDICTMENT VERDICT. 1. While, under laws of Nevada, a motion to quash an indictment because found by a grand jury illegally constituted, should be made before plea, the court should allow the plea, if made, to be withdrawn, and entertain such motion, if made in good faith. 2. The fact that the prescribed statutory grounds of challenge to the panel of a grand jury have no application to a subsequently changed method of selecting a grand jury will not authorize the court to treat a motion to quash an indictment, on the ground of illegal constitution of the grand jury, as a challenge to the panel. "This case, filed January term, 1883, is now published by request, with others, in order that the Pacific Reporter may cover all cases in volume 17, Nevada Reports. 3. An indictment will not be quashed because of the failure of the proper officers to keep the jury list revised so as to contain the name of every qualified juror in the county, as required by Laws 1873, c. 65, § 2, where the person selected by the proper officers constituting the grand jury were qualified jurors, whose names ought to have been on the list. 4. An indictment for "assault with intent to kill" is sufficient as an indictment for the statutory offense of "an assault with a deadly weapon, with intent to inflict bodily injury,' under Comp. Laws, par. 2037, which provides that in all cases defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged. 5. Where defendant was indicted for the statutory offense of "an assault with a deadly weapon with intent to inflict bodily injury," a verdict of conviction of "an assault with a deadly weapon to inflict a bodily injury" (omitting the words "with intent") was sufficient. Appeal from district court, Storey county. Indictment against Samuel Collyer for assault with intent to kill. Defendant was convicted, and appeals. Affirmed. W. E. F. Deal, for appellant. M. A. Murphy, Atty. Gen., for the State. HAWLEY, C. J. Appellant was indicted and tried for the crime of "assault with intent to kill," and convicted of "an assault with a deadly weapon to inflict a bodily injury upon the person of F. N. Bidleman." He claims that the indictment was not found by a legal grand jury, and that it should, for that reason, have been set aside by the court. When the indictment was found (September 13, 1882) he was not in custody, and had not been held to answer. He was arrested and brought before the court on the next day (September 14th) for arraignment, and an attorney was then appointed by the court to defend him. Two days thereafter (September 16th) he appeared and entered his of plea not guilty. Three days after his plea was entered the case was regularly called for trial, and, having in the mean time secured additional counsel, he moved the court for leave to withdraw his plea of not guilty, and to move the court to quash, set aside, and strike said indictment from the file of said court as a nullity, because the persons who found said indictment do not constitute a legal grand jury, and were not selected according to law;" the specific objection being that the persons composing the grand jury were not actually selected from the jury list, as required by the "act concerning juries." St. 1873, p. 126; St. 1879, p. 34; St. 1881, p. 27. For the purpose of asking leave to make said motion it was admitted that the names of certain persons who were selected to serve as grand jurors were not upon the jury list, and that the grand jury was selected in the following manner: The district judge and one of the county commissioners, after the commencement of the term, "selected the names of twenty-four persons, residents and citizens of said Storey county, and well-known qualified electors of the county, from the names of such persons, known qualified electors of the county, as the said judge and said county commissioners concluded in their judgment would make good grand jurors, and whose names should be of right upon the jury list, knowing them to be qualified electors. * That none of the names of said persons were in fact drawn from the book containing the jury list, which jury list had not been reformed for several years." It was further admitted that these facts were known to the attor ney of defendant (appointed by the court) when the plea of not guilty was entered. Upon these facts the court refused defendant leave to withdraw his said plea of not guilty, and refused defendant leave to make said motion, and refused to quash or set aside the indictment, because the said motion was made too late." Section 2 of the jury act (St. 1873, p. 126) provides for a jury list which shall contain "the name of every qualified juror of the county, so far as the same can be ascertained." Section 8 declares that "it shall be the duty of the district judge and any one of the county commissioners of the county, at least once in each year, and as much oftener as the public interest may require, to select from the jury list twentyfour persons, who shall be summoned to appear as grand jurors at such time as the judge may order." St. 1881, p. 27. # Was the motion made in time? Bishop, in giving the general views upon this subject, says that "a motion to quash the indictment ought to be made at an early stage of the cause. The doctrine to be drawn from the cases and from the reasons of the law combined appears to be that the motion to quash, not being one of right, but of privilege granted by the court to the defendant, will not be received when presented at any unreasonable time. Yet, what is a reasonable time will depend upon the nature of the objection to be reached by the motion, the diligence used by the defendant in bringing it forward, and many other things not possible to be stated in a general proposition." 1 Bish. Crim. Proc. § 762. We are of opinion that motions of this character ought, under the provisions of our statute, to be made before plea. If a wrong has been committed the law intends that the party injured shall have a remedy, but, where it provides the manner in which relief shall be given, the path pointed out should be followed. It is important, to the fair and impartial administration of justice, that the time for making such motions should be restricted. A party ought not to be permitted, after taking his chances of a trial, to take advantage of any irregularity in the selection of a grand jury, of which he had knowledge before his plea of not guilty was entered. By pleading to the indictment it will be considered that he consented to the irregularity, and thereby waived his right to make any objection to the method of selecting or impaneling the jury. State v. Roderigas, 7 Nev. 333; State v. Larkin, 11 Nev. 325; People v. Coffman, 24 Cal. 234; People v. Stacey, 34 Cal. 308; State v. Bleekley, 18 Mo. 430: Van Hook v. State, 12 Tex. 268; Reed v. State, 1 Tex. App. 1; McElvoy v. State, 9 Neb. 164; Barron v. People, 73 m. 258. The decision of the court that the motion was made too late was therefore technically correct. But we are of opinion that in the exercise of a sound judicial discretion, in a case like this, where the motion is made in good faith, before the trial commences, it would be the better practice to allow the plea to be withdrawn, and give defendant an opportunity to make his motion to quash the indictment, especially if the court was of opinion that there was any merit in the motion. Nicholls v. State, 5 N. J. Law, 541; State v. Hale, 44 Iowa, 97; State v. Riffe, 10 W. Va. 799. Entertaining these views, we shall not base our decision upon the ground relied upon by respondent, but will consider the question whether the motion should have been granted if the plea had been withdrawn. The jury law of this state has ever been a fruitful theme for legislative enactment. St. 1861, p. 139; St. 1864-65, p. 137; St. 1866, p. 191; St. 1873, p. 126; St. 1879, p. 34; St. 1881, p. 27. The criminal practice act, however, has not kept pace with the jury system. The grounds therein specified upon which challenges may be made to the panel of the grand jury have not been changed in any respect. St. 1861, p. 454, § 179; 1 Comp. Laws, par. 1807. In this case no challenge was, in direct terms, interposed to the panel of the grand jury; and the manner of selecting or impaneling a grand jury does not appear to be one of the grounds provided by statute for setting aside the indictment, (St. 1861, p. 464, § 275; 1 Comp. Laws, par. 1899,) and if appellant was entitled to be heard, it is questionable whether his motion would not have to be considered as a challenge to the panel of the grand jury. If so considered, the motion should have been denied. It was intended by the provisions of section 179 (1 Comp. Laws, par. 1807) to restrict the right of challenge to the three grounds therein enumerated, viz.: "First, that the requisite number of ballots was not drawn from the jury box of the county as prescribed by law; second, the notice of the drawing of the grand jury was not given as prescribed by law; third, that the drawing was not had in the presence of the officers or officer designated by law." None of the grounds set forth in the motion are included within those specified in the statute. The fact that the statutory grounds of challenge have no application to the present method of selecting a grand jury would not authorize the court to consider the motion as a challenge to the panel. Courts have no power" to originate a new and distinct ground of challenge." People v. Southwell, 46 Cal. 146; State v. Bleekley, 18 Mo. 431; Green v. State, 1 Tex. App. 86. But conceding, for the purpose of the argument, (without deciding the question,) that the motion could be made and considered under the first subdivision of section 275 of the criminal practice act, (1 Comp. Laws, par. 1899,) on the ground that the indictment was not "found" as prescribed by law, it would not, in our opinion, follow that the motion should have been granted upon the facts of this case. There are several cases where the courts have held that a material departure from the mode provided by law for selecting or impaneling a jury (grand or trial) would authorize them to set aside an indictment or grant a new trial. As, for instance, when the jurors were selected by officers not authorized by law to make the selection,-State v. McNamara, 3 Nev. 73; State v. Williams, 5 Port. (Ala.) 135; Dutell v. State, 4 G. Greene, 125,-or where the indictment was found by a grand jury composed of a greater number of persons than was authorized by statute,-People v. Thurston, 5 Cal. 69; State v. Ostrander, 18 Iowa, 442. But it is not every deviation from the prescribed methods that will justify such a course to be pursued, and each case is therefore made to rest upon the particular facts presented. It will be observed, upou an examination of the statutes now in force, that there is a material difference in the mode provided for the drawing of trial jurors and the method of selecting grand jurors. The trial jurors must be drawn from the names in the jury box; the grand jurors are to be selected from the jury list. Now, it may be that, if the trial jurors are not "drawn from the jury box," a party might be deprived of a material right guarantied to him by the provisions of the statute, while the irregularities complained of in the selection of the grand jury would not deprive him of any substantial right. It is clear to our minds that the laches of the officers in this case did not result in any prejudice or injustice to the defendant. It is not claimed that there was any fraud or collusion in the selection of the grand jury, but it was argued that unless the statute was strictly complied with it might, in some cases, lead to great injustice: that the judge and county commissioners might select a grand jury for a special purpose, and arbitrarily take such persons as they thought could be safely relied upon for the accomplishment of such purpose, whether their names were on the jury list or not. It will not be presumed that any judicial or other officer would use the power given to him for any such purpose. If any effect should be given to this argument, which was earnestly presented by appellant's counsel, it was addressed to the wrong tribunal. It would simply prove, if it proves anything, that the law relative to the selection of the grand jurors ought to be changed. It will be noticed that the jury list can be amended, at any time, "by adding thereto the names of all qualified persons not already included therein," and that it is made the duty of the district judge, when so requested by any person whose name is on the list, "to order such names to be added to the list, if it satisfactorily appear that they are qualified jurors of the county." Under these provisions the officers could, of their own motion, have added to the list the names of the jurors selected that were not on the list, and then have made an arbitrary selection of 24 persons to be summoned. In this manner they could (and doubtless would) have chosen the identical names that were selected. The only departure from the method prescribed by law was in their failure to have the names of all qualified persons placed on the list before selecting the persons to be summoned as grand jurors. We are of opin the object of recording the list "is to preserve upon the records the list of names, and for the information and convenience of the court. It can scarcely be said that the omission of the clerk to record the certificate or even the list is an irregularity in respect to the selection, summoning, or impaneling of jurors. If the clerk neglects to perform such duty as directed by the statute, the court may require and compel him to do it at any time, and thus the omission is cured. The accused cannot be prejudiced by it. If the list is, in fact, certified to the clerk, he is required to write the names on separate slips of paper and deposit them in a box from which the juries are drawn, and it can make no difference to the accused that the list or certificate is not recorded until after the ballots are thus prepared or the jury drawn. In State v. Champeau, 52 Vt. 316, the defendant pleaded that the names of three of the persons selected as grand jurors were not drawn out of the box, as provided by statute, but were drawn by the sheriff "by selecting from a package of numbered cards presented to him by the city clerk of said city three certain numbers seen by said sheriff at the time of said drawing, which numbers so drawn corre sponded with the numbers set opposite the names" of said three persons in the public records. The court said: "The method of drawing the three jurors named in the plea was not strictly according to the statute. It seems to have been an attempted improvement on the statutory method. The officers engaged in it will serve the public better by adhering to the statutes in the discharge of this public duty than by deviations therefrom with a view to improvements, or with any other view. But it appears that the persons drawn in this case were among those regularly chosen, and it does not appear but that the drawing was fair, or that the persons drawn were not proper persons to be drawn, or that any wrong or injury has resulted, or that there was any fraud or collusion. We therefore think the method of drawing was not such an irregularity as to vitiate the indictment." ion that the members of the legislature | required by statute. The court said that deemed it to be the wisest course to leave the selection of grand jurors to the sound judgment of the officers specified in the law, else they would not have made any distinction between the methods adopted for the selection of trial jurors and of grand jurors. They had the right to believe that the officers would faithfully discharge the duties imposed upon them and that the mode adopted would prove more beneficial to the public interests, and would not, in any manner, be detrimental to the rights of persons who might be accused of crime. The provision for a jury list was made, among other reasons, for the purpose of securing, as far as possible, an equal distribution of trial jury duty among the citizens of the respective counties, and the provision authorizing the district judge and county commissioners to select the grand jurors from this list was inserted as a matter for their information and convenience, that they might have before them the names of all the qualified jurors in the county, and was not intended simply as a protection to parties who might be brought before the grand jury. The failure of the officers to keep the jury list reformed was a matter of which the public might complain; but, in the absence of any fraud, collusion, dishonesty, or unfairness upon the part of the officers, it does not furnish a sufficient ground to authorize the court to set aside an indietment. The persons selected were qualified jurors, whose names ought to have been on the jury list. They were selected by the proper officers, and their acts were valid. In Friery v. People, 54 Barb. 339, it appeared from the challenge to the array that the statute regulating the drawing and summoning of jurors had been directly violated. The court said: "The question is, with what purpose or intent were these statutory regulations for the drawing and summoning of jurors made? Were they made for the benefit of the parties to trials by jury, and for the purpose of securing such parties (in civil and crininal proceedings) an impartial array of jurors, from which the jury to try the issue might be taken, or were the statutory regulations made for the purpose of securing an impartial distribution among citizens of the onerous duty of performing jury service? If the former was the purpose or intent, then it was the prisoner's right to have the statutory regulations complied with, independent of any suggestion of fraud or of misconduct, other than a failure to observe the statutory regulations. If, however, the purpose of the regulations was merely to secure a fair and impartial distribution of the jury duty among the citizens at large, then, in the absence of any suggestion of fraud or of misconduct, other than a mere failure to observe the regulations, it ap pears to me that the public only can complain of the disregard of the regulations." In Keech v. State, 15 Fla. 599, the defendant pleaded in abatement to the indictment that the certificate of the chairman of the county commissioners was not recorded by the clerk with the list of persons selected as qualified to be jurors as * * * From an examination of the authorities it will be seen that "courts do not look with indulgence upon objections to irregularities in the mode of selecting or drawing grand jurors committed without fraud or design which have not resulted in placing upon any panel disqualified jurors." Ferris v. People, 31 How. Pr. 145, 35 N. Y. 125; Dolan v. People, 64 N. Y. 492; Van Hook v. State, 12 Tex. 271; Coker v. State, 7 Tex. App. 86; State v. Breen, 59 Mo. 415. If the court could have considered the motion, it would have been its duty to have denied it, and its action in refusing to set aside the plea is sustained upon the ground that the motion to quash was without merit. It is claimed that the indictment does not sustain the verdict because it is not alleged therein that the assault was committed "with a deadly weapon." It is charged in the indictment "that the said Samuel Collyer, in and upon the body of F. N. Bidleman, feloniously and of his malice aforethought did make an assault, and the said Samuel Collyer, with a certain knife, which said knife the said Collyer there and then had and held, then and there willfully, feloniously, and of his malice aforethought did strike, cut, and stab to, upon, and against the body of him, the said F. N. Bidleman, then and there being, with an intent him, the said F. N. Bidleman, willfully, feloniously, and of his malice aforethought to kill and murder." The position contended for by appellant is sustained by the decisions of the supreme court of California. People v. Congleton, 44 Cal. 94; People v. Murat, 45 Cal. 282. But it does not appear to us that the reasons therein given are sufficient to justify the conclusions reached. Conceding it to be true that an indictment for an assault with a deadly weapon, with intent to inflict a bodily injury, should allege that the assault was made with a deadly weapon, or aver such facts as would enable the court to see that the weapon used was necessarily. a deadly weapon, (People v. Jacobs, 29 Cal. 579,) still it does not necessarily follow that the conviction in this case should be set aside. We are of opinion that the question of the sufficiency of the indictment must be tested and determined with reference to the crime charged. If the indictment is good for the crime of "an assault with intent to kill," then it seems to us that it ought to be held sufficient to sustain a conviction of "an assault with a deadly weapon, with intent to inflict a bodily injury," on the familiar principle that the graver charge includes the less. State v. Robey, 8 Nev. 312, and authorities there cited. The indictment, although it contains more words than are necessary, is sub. stantially in the form prescribed by statute, and is sufficient as to the crime of an assault with intent to kill. 1 Comp. Laws 1859. In such indictments it is not necessary to describe the particular manner in which the instrument is used, or to allege in direct terms that it is a deadly weapon. The means of effecting the criminal intent, or the circumstances of evincing the design with which the assault was made, are matters of evidence, and need not be set forth in the indictment. State v. Rigg, 10 Nev. 288; State v. Croft, 15 Tex. 575; Mayfield v. State. 44 Tex. 60; State v. Chandler, 24 Mo. 372; State v. Seward, 42 Mo. 208. The same rule is applied in indictments for murder, (State v. Anderson, 4 Nev. 273; People v. Cronin, 34 Cal. 200; People v. Murphy, 39 Cal. 55;) and for assault and battery, with intent to murder, (State v. Dent, 3 Gill & J. 10; U. S. v. Herbert, 5 Cranch, C. C. 90; Harrison v. State, 2 Cold. 233; State v. Daley, 41 Vt. 566.) The ancient rules, relative to the strictness to be observed in the language of indictments, have been superseded by the wise and liberal provisions of our penal codes. The substance is preserved, but the rubbish is cast aside. It was intended by the adoption of codes to remedy the evils that had so long existed under different rules. These evils were very clearly pointed out by an eminent English jurist. Sir Matthew Hale, speaking upon this question, said: "That in favor of life great strictnesses have been in all times required in points of indictments, and the truth is that it is grown to be a blemish and inconvenience in the law and the administration thereof; more offenders escape by the overeasy ear given to exceptions in indictments than by their own inpocence, and many times gross murders, burglaries, robberies, and other heinous and crying offenses escape by these unseemly niceties, to the reproach of the law, to the shame of the government, and to the encouragement of villainy, and to the dishonor of God. And it is very fit that by some law this overgrown curiosity and nicety were reformed, which is now become the disease of the law, and will, I fear, in time grow mortal, without some timely remedy." 2 Hale, P. C. 193. Upon this question, as well as others, courts should adhere to the true intent and spirit of the legislative enactments, and make their decisons, as far as is compatible with justice, conform to the common sense of mankind, (which is the reason and soul of the law,) especially" if they wish to secure for the law its ablest guardian,-public respect.' Our statute provides that "in all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment." 1 Comp. Laws, par. 2037. The defendant was, by the indictment, properly informed of the charge against him and of the particular means employed in committing it. He was accused of an assault with intent to kill, by striking, cutting, and stabbing, one F. N. Bidleman with a knife. These acts necessarily charged a bodily injury, and, if the knife was a deadly weapon. which seems to be reasonably implied by the language used, Dollarhide v. U. S., 1 Morris, [Iowa,] 234; People v. Lightner, 49 Cal. 228,) and was so found by the jury, then the offense of an assault with a deadly weapon is necessarily included in the indictment, although it omits to state some of the particular circumstances which characterize that degree of crime. In Keefe v. People, 40 N. Y. 355, 356, the prisoner was convicted of murder in the second degree, and it was contended by his counsel that the conviction could not be sustained unless the indictment charged "that the death was effected while the accused was engaged in the commission of a felony, as specified in the statute, and that the absence of such an averment in the indictment is fatal to the judgment." GROVER, J., in discussing the provisions of the statute of New York, which authorized the conviction for a lesser degree of the same crime, said: "I think the true construction of the statute is that, when the act for which the accused is indicted is the same act for which he is convicted, the conviction of a lower degree is proper, although the indictment contains averments constituting the offense of the highest degree of the species of crime, and omits to state the particular intent and circumstances characterizing a lower degree of the same crime. If this be the true construction, it follows that, under an indictment for murder in the first degree, the accused may be convicted of any degree of murder or * * * |