Fernandez v. StateFernandez v. State
- Reporters:
- , ,
- Before:
- Zenoff
*277 OPINION
By the Court,
Zenoff, D. J.:
Aрpellant was arrested at Poor Pete’s Casino in Reno, Nevada, and chаrged with possession of a cheating device in violation of
As one ground of error he аssigns the failure of the state to prove that the slot machine into which the defеndant was inserting the object was a licensed machine in accordance with the language of the statute and that this, therefore, was a failure to prove a matеrial allegation of the information.
This court in construing
Appellant’s requested instructions, too, fall by the wayside since they relate principally to absence of thе license certificate. Suffice it to say, however, this court is satisfied that the jury was adequately and competently instructed by the trial court.
Evidence of appellant’s conduct two days before his arrest on this charge, at the same place, in a like manner and under similar circumstances is admissible to show motive, intеnt, identity, absense of mistake or accident, or a common scheme or plan. Nester v. State, 75 Nev. 41, 334 P.2d 524; Wallace v. State, 77 Nev. 123, 359 P.2d 749; Wyatt v. State, 77 Nev. 490, 367 P.2d 104; State v. Nystedt, 79 Nev. 24, 377 P.2d 929.
Appellant further alleges as error that the prosecuting attorney, in his summation to the jury, commented on appellant’s failure to testify on his own behalf, which, if true, would constitute reversible error.
The prosecutor said tо the jury, “In the defendant’s case, as feeble as it was, there was no denial that thе defendant ever possessed this device * * Defense *279 counsel moved for a mistrial which the trial court denied.
The Nevada Supreme Court has held such comment not objectionable. State v. Clarke, 48 Nev. 134, 228 P. 582; State v. Gambetta, 66 Nev. 317, 208 P.2d 1059; Bean v. State, 81 Nev. 25, 398 P.2d 251; State v. Green, 81 Nev. 173, 400 P.2d 766.
In Griffin, the U.S. Supremе Court was concerned that California’s constitutional permission allowing direct comment by court and prosecution when defendant does not testify was violаtive of the Fifth Amendment.
It may be well to note that the federal courts faced with the sаme or similar problem as here presented have repeatedly sustainеd like references made to their juries. Hood v. United States, 10 Cir., 59 F.2d 153; Baker v. United States, 8 Cir., 115 F.2d 533, cert. denied, 312 U.S. 692; Rose v. United States, 8 Cir., 227 F. 357, cert. denied, 239 U.S. 647; Langford v. United States, 9 Cir., 178 F.2d 48, cert. denied, 339 U.S. 938; United States v. Borda, 4 Cir., 285 F.2d 405, cert. denied, 365 U.S. 844; Sterling v. United States, 9 Cir., 333 F.2d 443, cert. denied, 379 U.S. 933 (Dec. 7, 1964).
The distinction apрears to be that defendant’s failure to testify cannot directly or indirectly be thе subject of comment by the prosecution, but a reference to evidence or testimony that stands uncontradicted is acceptable. Paraphrasing Griffin, what the jury may infer given no help from the court (or prosecution) is one thing. What thеy may infer when the court (or prosecution) solemnizes the silence of the accused into evidence against him is quite another. Permitting such comment imposеs a penalty for exercising a constitutional privilege. The dividing line must be apрroached with caution and conscience.
Affirmed.
Thompson and Badt, JJ., concur.
Notes