State v. Fisko , 58 Nev. 65 ( 1937 )

ON PETITION FOR REHEARING September 3, 1937. 70 P.2d 1119.

Rehearing denied.

OPINION A petition for a rehearing has been presented in which it is claimed that this court overlooked evidence that tended to prove manslaughter, requiring a submission of that issue to the jury.

The evidence claimed to have been disregarded is said to be the choking of the appellant by Mrs. Fisko when she threw her arms around his neck, and the great disparity in weight between the husband and wife.

13. It appears from the testimony that appellant weighed one hundred and forty pounds, and the deceased two hundred and seventy-five pounds. We did not state the fact of this disparity in our opinion because we considered it irrelevant. It does not follow that there was any disparity in strength, and if we should enter the field of presumptions, the greater strength would be attributed to the appellant. However, the relative strength or weight of the two is of no evidentiary value in this case. If the appellant had claimed self-defense, it might be otherwise. But the theory that the difference in weight was a contributing factor to the killing in an overmastering heat of passion borders on the absurd.

There is no evidence showing that Mrs. Fisko choked appellant when she threw her arms around his neck.

A rehearing is denied.