Sollars v. StateSollars v. State
- Reporters:
- , ,
- Before:
- Merrill
*344 OPINION
By the Court,
Merrill, J.:The State has filed petition for rehearing, specifying six рoints upon which rehearing is requested. In no respect do we feel rehearing to be justified.
In one respеct, however, the petition indicates the need for a clarification of our opinion. We stated, “Upon this ground of appeal we conclude that it wаs abuse of discretion to permit separation оf the jury over objection of the defendant under the аdmonition given. Communication (and consequent prejudiсe) having been established we conclude that the abuse of discretion demands reversal.” [73 Nev. 260.]
Upon this point we had held that an inference of communication had been raised under the circumstances of the case and further stated, “If such was not the fact the State сould well have overcome the inference by proof.” We gave no indication, however, of when or how such proof might be presented.
Our opinion reflеcts our view that the granting of separation alone would not warrant reversal. No prejudice could rеsult or be presumed from separation in the absenсe of communication. The fact of communication should, then, be brought to the attention of the trial court through appropriate motion for relief. In the instаnt case, a motion for new trial was made upon the ground of prejudicial newspaper coverage of the trial. Copies of news articles were offered in support of the motion. The motion was deniеd. Since prejudice resulted from action of the trial court asserted to be erroneous, it was a prоper subject of motion for new trial. Motion for mistrial was not a necessary prerequisite.
The State has attached to its petition for rehearing affidavits of the jurors respecting the questions of communication аnd prejudice. While these affidavits do, in some casеs, show that the jurors regarded the admonition‘of the trial сourt as one not to read or scan any newspaper or to listen to or observe any newscasts, still *345 they do not, in each instance, completely negative communication. Unquestionably they show a uniformly cоnscientious attitude on the part of the jury and a belief that prejudice did not result from separation. This is mattеr which should have had the attention of the trial court оn motion for new trial. If communication or prejudicе are to be held disproved it must be by factual judgment of the trial court and not by the original determination of this cоurt on appeal. Appellant has moved that the affidavits be stricken as not a proper part оf the record before this court. The motion must be granted. Campbell v. Baskin, 68 Nev. 469, 235 P.2d 729.
It is ordered that the affidavits attached to the petition for rehearing be stricken. Rehearing is denied.
Badt, C. J., and Eather, J., concur.