Overton v. StateOverton v. State
- Reporters:
- , ,
- Before:
- Thompson
OPINION
By criminal complaint, Overton, the appellant, was charged with the unlawful possession and control of heroin, a narcotic drug. At the conclusion of a preliminary hearing on December 14, 1960, he was held to answer in the district court. On December 16, 1960, the assistant district attorney, with leave of court, filed an information against Overton pursuant to NRS 173.-140.
When first before the district court for arraignment upon the information thus filed, Overton objected to being arraigned, for the reason that the full transcript of the proceedings of the preliminary examination had not been delivered to the clerk of the district court within 10 days following the preliminary hearing, as required by
After trial, a jury found Overton guilty. He appeals, claiming that prejudicial errors occurred as follows: (a) At the preliminary hearing, during a recess, when the prosecuting attorney spoke to a witness in the presence of other witnesses, thereby violating
We turn, to discuss such claims of error, and the relevant facts bearing upon each.
1.
Re prejudicial errors claimed to have occurred during the preliminary examination:
The claimed errors in this regard are those mentioned above as assignments of error (a) and (b). A preliminary examination is not a trial. The accused is neither convicted nor acquitted of the crime with which he is charged. The magistrate before whom the examination is held, determines only whether it appears that a public offense has been committed, and whether there is sufficient cause to believe the accused guilty thereof.
2.
Re removal by prosecuting attorney from the custody of the court clerk, of an item to be later received as an exhibit in evidence.
At the preliminary examination, a balloon in which the capsules of heroin were found, was received in evidence as Exhibit “A.” All exhibits there received were subsequently delivered to the clerk of the district court, pending trial upon the merits. After the jury had been selected, but before the introduction of any evidence, the prosecuting attorney
obtained said balloon from the clerk of court and discussed same with witnesses to be later placed on the stand. With reference to this occurrence, appellant Overton contends that the prosecuting attorney should have obtained leave of court to remove the balloon, and that his failure to do so prejudiced Overton with regard to a substantial right. The nature of such claimed prejudice is not indicated. It is conceded that the balloon was not tampered with, altered, or changed in any respect. This being true, no possible prejudice could have resulted to Overton.
3.
Re motion to set aside information:
As herein-before related, the full transcript of the proceedings of the preliminary examination was not filed with the clerk of the district court within 10 days following the preliminary examination.
1
However, such transcript was filed before the accused was arraigned in the district court. He urges that the failure to strictly comply
In the case before us, the information was filed two days following conclusion of the preliminary examination as permitted by
The period of 10 days specified in
4. Re the admission of Exhibit “A” in evidence: The balloon in which the capsules of heroin were found, was received in evidence as Exhibit “A.” In objecting to its admission, counsel for Overton urged upon the court that there was not sufficient evidence to establish that Overton was, or had been in possession of the balloon, or that it was his and, further, that the capsules of heroin therein had not been separately identified by the officer who took possession of them, or by the chemist who later tested the substance contained therein. In our view, the trial court correctly received the proposed exhibit as evidence. A detective testified that Overton admitted to him that the balloon was his. Additionally, the arresting officer in describing the arrest of Overton, said: “I called for Mr. Overton to stop and he was walking away from me, he had his back to me. He stopped, turned around and he had his right hand in his right pocket and as I got nearer to him he pulled his hand out of his pocket and I could hear some metal falling, he gave it a quick jerk. * * * After I had shaken Mr. Overton down I looked around to see what had fallen and I found some keys and some change and an orange colored balloon and I picked up this balloon and I felt some round objects in it.” The balloon was picked up within three feet of Overton, and there was no one else in the immediate area. Cf. Terrano v. State, 59 Nev. 247, 91 P.2d 67. Such evidence, if accepted by the jury, and it apparently was, abundantly establishes Overton’s possession and control of the balloon and contents.
The capsules of heroin were also sufficiently identified. The arresting officer marked the balloon in which the capsules were contained with his initials and a number, placed all items in a manila envelope, sealed and marked it, and delivered the envelope to the desk sergeant who placed it in a vault. Thereafter, the sergeant of identification removed the manila envelope from the vault and delivered same to a chemist who opened it and tested the substance contained within the capsules, determining that substance to be heroin. Following such testing, the chemist returned all items to the envelope, sealed it, and retained it in his possession until it was produced as evidence during the preliminary examination. Under such circumstances, Overton’s objection to the introduction
5. Re evidence of another crime: On two separate occasions during the presentation of the State’s case in chief, the defendant moved for a mistrial. The motion was first made when a detective testified that Overton stated that he had known the person with whom he was seen immediately before his arrest, and had sold heroin to him. The motion for mistrial was denied. However, the court did strike such testimony and admonished the jury to disregard it. On the second occasion, a different detective testified that he overheard Overton say, “* * * that he (Overton) went to Mississippi Slim’s house, the address I don’t know, and at that time Mississippi Slim, Willie Henderson, and a man, I believe his last name was James, were present in the house when the defendant (Overton) went over there. He said that they had just finished capping some heroin and at that time he (Overton) took a portion of what they had capped up and took it out and sold it and that he brought it * * * He said he went back to the house and obtained, I believe, 40 more caps and took them down and disposed of them all except 14; that he then went to the rear of the Nevada Club to meet a man who he had a prearranged meeting with and he said that while this man that he met there was examining one of the caps he saw Jergovic [a detective] and Whitney [a detective] approaching them and at that time the man that was examining the cap swallowed the cap and he started to run and he threw the balloon down on the ground that had the other caps in it and that he — or Jergovic or Whitney picked it up.”
The trial court again, pursuant to motion, struck that portion of the quoted testimony relating to the sale of heroin, and admonished the jury to disregard it. Overton’s motion for mistrial was denied.
Overton was prosecuted for the violation of
In Wallace v. State, supra, a narcotics case, we held admissible evidence of a separate offense, offered in rebuttal, to contradict the testimony of the defendant that he had never seen marijuana. In the case at bar, the evidence was offered during presentation of the State’s case in chief. Overton contends that this distinction is material. We do not agree. We perceive no difference in principle between offering such evidence during the State’s case in chief to show the defendant’s knowledge of the narcotic nature of the substance, which knowledge was put in issue by his not guilty plea, and offering such evidence in rebuttal to refute the defendant’s testimony that he did not possess such knowledge. State v. Elges, 69 Nev. 330, 251 P.2d 590. It is our view, therefore, that the offered, but stricken, evidence, was, in each instance, admissible. Therefore, Overton may not properly complain of the court’s ruling in granting his motions to strike, nor of its ruling in denying his motions for mistrial.
Overton next contends that, in any event, such testimony should not have been received because the trial court did not, before receiving such evidence, take the “intermediate step” suggested by this court in Nester v. State, 75 Nev. 41, 334 P.2d 524. In that case we said, “Since it is the prejudicial nature of the evidence which is the principal
“In order to establish admissibility, then, it is not enough to establish that the evidence of a separate offense is relevant and competent under one of the exceptions to the general rule excluding such evidence. Even where relevancy under an exception to the general rule may be found, fair trial demands that the evidence not be admitted in cases where, by virtue of its prejudicial nature, it is more likely to distract from the essential issue than to bear upon it.
“Whether, under the circumstances, admission of the evidence interferes with fair trial, can hardly be determined by fixed rule of law. It would seem to require, instead, the exercise of judicial discretion of the trial judge.
“* :¡: =i: jn gjfl gUCh caseg as this, then, an intermediate step must be taken between the determination of relevancy by the court and the weighing of the evidence by the jury. In determining admissibility the additional responsibility rests upon the trial judge (after having determined that the evidence of a separate offense is competent and relevant) to balance the prejudicial and distracting impact of the evidence against its probative weight and persuasiveness. If by the balance struck, prejudice outweighs probative value, the evidence should be excluded regardless of its relevancy to the issue of identity.”
The suggested procedure in Nester is the preferred method, if circumstances permit. Wyatt v. State, 77 Nev. 490, 367 P.2d 104. However, in the instant case, the so-called “intermediate step” could not be taken by the court because evidence of the sale of heroin was in the case without prior notice or warning of any kind. The court, then, did what it considered to be proper under the circumstances, and granted Overton’s motion to strike. However, for the reasons heretofore given, we do not believe that the court below was obliged to do that. In any event, Overton did not sustain a prejudice when the court granted his respective motions to strike such testimony. Accordingly, this assignment of error is also without merit.
In addition to the claims of error already discussed, the appellant contends that the evidence was insufficient to support the verdict of the jury. He does not indicate in either his brief or argument on appeal in what respect the evidence presented would not support his conviction. We do not, therefore, believe it necessary to consider, in detail, this assignment of error. It is sufficient to state that the evidence heretofore related in this opinion, and which is but a part of the case presented, of itself is sufficient to support the jury verdict.
Affirmed.
Badt, C. J., and McNamee, J., concur.
Notes