Opinion of the Court-Talbot, C. J.

build a fence. At section 707, High on Injunctions, 3d ed., it is said: "Where the trespass complained of consists in the erection of buildings upon complainant's land, a distinction is taken between the buildings when in an incomplete and when in a finished state. And while the jurisdiction is freely exercised before the completion of the structures, yet if they have been completed the relief will generally be withheld, and the person aggrieved will be left to his remedy by ejectment." (Sherman v. Clark, 4 Nev. 139, 97 Am. Dec. 516.)

Other citations may be found in 22 Cyc., which sustain the statement in the text at page 760, that if the act sought to be enjoined and the injury resulting are continuing in their nature, or if the injurious act has not been completed, an injunction is proper, but not so against an ordinary or naked trespass (page 827), and at page 834: "Encroachment on the land of another by erecting permanent buildings or walls is such a destruction of the inheritance as may be enjoined." Decisions also applicable are: Miller v. Lynch, 149 Pa. 460, 20 Atl. 80; Kaiser v. Dalto, 140 Cal. 167, 73 Pac. 828; More v. Massini, 32 Cal. 590; Baron v. Korn, 127 N. Y. 220, 27 N. E. 804; Switzer v. McCulloch, 76 Va. 777.

In line with other cases holding that mere trespass and occupation without acts injurious to the inheritance will not be temporarily restrained, it was held in White v. Booth, 7 Vt. 130, that the use of a church already completed would not be enjoined pending trial of title to the land. (Amelung v. Seekamp, 9 Gill & J. 468.) In Waddingham v. Robledo, 28 Pac. 663, 6 N. M. 347, the defendants were allowed to retain the possession and use of ditches and improvements, but restrained from making others pendente lite.

In view of the denials and allegations of the answer, until it is ascertained upon the trial whether the defendant is the owner or entitled to the possession of the premises, it is premature to assume that his entry would be a trespass. It would be otherwise if the answer admitted that plaintiffs were the owners and entitled to the possession of the land. The order properly enjoined the erection of the building, but it is too broad in restraining defendant from entering the premises in dispute. The court may properly prohibit either

Opinion of the Court-Talbot, C. J.

or both parties from erecting permanent buildings, or committing waste, or doing acts which may cause irreparable injury, but under the facts as shown there is no more reason for enjoining one of the parties from entering the premises than for restraining all. The defendant likewise is entitled to have the property protected until the determination of the suit, and may wish to enter the premises for the preservation of the structure, which he has partly erected at the alleged expense of $4,000, and in the protection of which he may be more interested than the respondents who object to its completion. In Silver Peak Mines v. Hanchett, 93 Fed. 78, with citation of authorities, it was said that the rule is well settled that an injunction prohibiting any interference with the status of property pending litigation does not prevent any party having an interest from doing whatever is reasonably necessary for its preservation.

We realize that the temporary restraining order prohibiting the defendant from completing the building until trial can be had and the title and right of possession to the land determined may result in considerable damage to the defendant if he succeeds in establishing his claim to the lots, but, as no suggestion is made to the contrary, we assume that the $5,000 bond given is ample for his protection in this regard. The Nevada cases upon which appellant relies did not relate to town lots or buildings, and may be distinguished in other ways from the one now before the court. The same reasons do not exist for enjoining the construction of a ditch across barren and rocky land in the country not shown to be valuable for building or agricultural purposes, and when the ditch had been partly built by consent, and the damage to the land was only five dollars, as in Hoye v. Sweetman, 19 Nev. 377, or steps had been taken to condemn a right of way for a ditch for supplying water to the inhabitants of a city, which would only nominally injure land of little value, as in Thorn v. Sweeney, 12 Nev. 254; 22 Cyc. p. 829; Waldron v. Marsh, 5 Cal. 119; Crescent M. Co. v. Silver King M. Co., 17 Utah, 444, 54 Pac. 244, 70 Am. St. Rep. 810.

The district court is directed to so modify the temporary injunction that it will not prohibit the defendant from enter

Points decided.

ing, but will restrain him from digging, excavating, building, or constructing any dwelling house or other structure or fixture, or committing any injury, on the premises described in the complaint. The costs of this appeal are to abide the final result of the action.

[No. 1697.]

THE STATE OF NEVADA, RESPONDENT v. JOHN H. HENNESSY, APPELLANT.

1. HOMICIDE-DYING DECLARATIONS-SENSE OF IMPENDING DEATH. Where, on a trial for murder, it was shown that decedent, directly after the shooting said: "Boys, I am mortally wounded; I am all in"; and then made a statement with respect to the circumstances of the killing, and that death followed within a little over two days, a sufficient predicate was laid for the admission of the statement as a dying declaration. SAME EVIDENCE-ADMISSIBILITY-THREATS. Where, on a trial for murder, it was contended that defendant acted, not only in defense of himself, but also in defense of another, it was competent to show threats made against the life of such other by decedent or by others in association with him, and that the threats were communicated to defendant, though no threats were made against defendant.

2.

3. SAME-JUSTIFIABLE HOMICIDE-DEFENSE OF ANOTHER. Where one believes as a reasonable man that another who has been assaulted is in danger of losing his life, or of suffering great bodily harm, he has the same right to defend such other as the latter would have to defend himself.

4. CRIMINAL LAW-TRIAL-INSTRUCTIONS-DUTY OF JUROR. An instruction requested on a criminal trial that if, after a consideration of the whole case, any juror should entertain a reasonable doubt of defendant's guilt, it was his duty not to vote for a verdict of guilty, nor to be influenced to so vote for the single reason that a majority of the jury might be in favor of a verdict of guilty, if given, should be first modified so as not to admit of the construction that it was a juror's duty to hold to his convictions, which might in fact be based upon an erroneous view or misconception of the law or the eyidence, and so as to embody the idea that it was the duty of each juror to consult with his fellows, and to consider their views, to the end that each might aid in arriving at the truth.

5. HOMICIDE-INSTRUCTIONS-DEFENSE OF ANOTHER. A requested instruction, on a trial for murder, wherein it was contended that the killing was in defense, not only of defendant, but also of another, that the law makes it the duty of every one who sees a felony attempted by violence to prevent it, if possible, and that one may kill in the defense of another under the same circumstances that he would have a right to kill in defense of himself, should have been given, notwithstanding an instruction was given which was substantially the statutory definition of justifiable homicide.

Argument for Appellant.

6. SAME. Comp. Laws, 4751 (Crimes and Punishments Act, sec. 110), which, after defining the crime of conspiracy, provides that no part of the act shall be construed to restrict or prohibit the orderly assembling or coöperation of persons employed in any trade or handicraft for the purpose of securing an advance in the rate of wages or for the maintenance of such rate, did not authorize an instruction that if decedent and others went to the mine where the homicide occurred in an orderly manner for the purpose of maintaining a rate of wages, and to induce another in an orderly manner, without violence, to work for that wage, their purpose was lawful, for such question was not involved in this

case.

APPEAL from the District Court of the Third Judicial District of the State of Nevada, Nye County; Peter Breen, Judge.

John H. Hennessy was convicted of manslaughter, and from the judgment and an order denying a new trial, he appeals. Reversed, and remanded for new trial.

The facts sufficiently appear in the opinion.

J. P. O'Brien, for Appellant:

I. The prosecution has wholly failed to show that Ganahl believed that he was in great danger, or that he entertained any fear that he would die, or that he had abandoned all hope of recovery. It will be observed that the statement was made a very few minutes after the homicide, and long before he had received medical attendance, and that he did not and could not know the extent of his injuries, or whether or not his wound was fatal. Under these circumstances we submit that the prosecution failed to show that Ganahl believed that he was about to die, or that he had abandoned all hope of recovery. Besides, the evidence shows that the statement of Ganahl was reduced to writing and signed by him. We submit that the written declaration is the best and only evidence, and that it was error, therefore, for the trial court to permit the witnesses to narrate the alleged statement or declaration made by Ganahl. (10 Am. & Ency. Law, 391, 2d ed. and cases cited.)

II. In capital cases, past threats and hostile actions or antecedent circumstances tending to show malice are admissible in connection with the homicide, for the purpose of showing apprehension of personal danger from the deceased

VOL. XXIX-21

Argument for Appellant.

and of illustrating the question which of the parties, in a sudden reëncounter or quarrel in which human life has been taken may have been the assailant. (People v. Travis, 56 Cal. 251; People v. Thomson, 92 Cal. 507; People v. Dye, 75 Cal. 108; People v. Lee Chuck, 74 Cal. 30; In re Neagle, 135 U. S. 1-42.) In discussing this question, the Supreme Court of California, in the case of People v. Thomson, supra, says: "Again, in this case, a deadly encounter took place; one party was killed; the survivor insists that the killing was in self-defense, and that the deceased made the first attack. Who was the aggressor, was an issue of vital importance to the jury; justice could only be reached by its proper solution, and, as disclosed by the evidence, it was enveloped in doubt. Under these circumstances, all the acts and conduct of the deceased, either in the nature of overt acts of hostility, or threats communicated or uncommunicated, were proper evidence to be considered by the jury as shedding light-to some extent, at least-upon the issue as to whether the deceased or the defendant was the aggressor in the fatal affray. These principles are elementary in criminal law, and a citation of authorities not demanded; but the general principles are found discussed in People v. Arnold, 15 Cal. 479; People v. Scoggins, 37 Cal. 677; People v. Travis, 56 Cal. 252; People v. Tamkin, 62 Cal. 469." See, also, People v. Sortor, 34 Pac. 1037; State v. Tarter, 37 Pac. 53. For these reasons, we submit that the threats made by Ganahl were clearly admissible and the rulings of the court in excluding them were improper.

III. The conspiracy element of a crime becomes impor tant only as a means of establishing the commission of a crime. It is in this view that evidence is admitted to show conspiracy and that instructions defining it are given. (People v. Holmes, 118 Cal. 444.) The question of whether or not there was a conspiracy, and who were the conspirators, are conclusions of fact and are entirely questions for the jury to determine from all the evidence. (People v. Holmes, 118 Cal. 444; People v. Lawrence, 143 Cal. 148; People v. Moran, 144 Cal. 48; People v. Murphy, 146 Cal. 502.)

IV. The trial court was of the opinion that because appel