*1 NEVADA, Plaintiff, THE STATE OF Respondent, BOURDLAIS, V. FERDINAND Also Known Appellant. BOURDLAIS, Defendant, VERNON
No. 3743
January 15, 1954.
OPINION By Court, Eather, C. J.: appellant, plaintiff is the and the is the respondent parties in this court. The will be referred plaintiff to herein defendant as the lower court. Bourdlais,
Ferdinand also known Vernon Bourd- tried, lais, convicted, was and sentenced to death charge murdering Budzien, Sr., Ward on or about May 21, 1952, contending and he has appealed, that his trial was not fair nor in accordance with law. why committed
As to who the homicide or how or committed, may was there is no conflict. There be vari- story ance in the if details but so come from the defendant’s and not the state’s evidence. There many disputes were controversies in course of involving questions law, the trial but procedure question, real one on the all-important case, merits of the was whether defendant at time life, mentally he took Budzien’s deficient. Defend- imbibing intoxicating ant contends that had been mentally liquor; that the coupling retarded per- *3 sonality intoxicating liquor produced with the effects of a mental condition under which he did not at the time consequences realize and the nature or the of his act wrong. it was killing Budzien, Sr.,
The state that the of Ward insists place alleged in the defendant at the time and the information, perpetration was committed in of rob- bery, was, therefore, degree. and murder in the first may picture in
That we have before us the con- complaints give sideration of defendant’s we here a con- synopsis densed of the salient features of the evidence. evening 1952, May 19, A.
On of Ferdinand Bourd- Bourdlais, lais, defendant, known Vernon also Angeles, California, Harry he met was Los where Dyer in a bar. The two determined to travel east together evening. stayed in a hotel that While in displayed hotel room the defendant a 38-caliber robbing expressed of revolver and his intention people finance the the occasion demanded order to trip country. Dyer acquiesced In across Dyer’s packed in suitcase as were the bare bullets were luggage for The rest of the necessities the trip. Railway Office in Los' checked at a Express
pair Angeles, Angeles and after both had breakfast in Los they hitchhiking Highway started eastward on U. S. No. 66. morning time in the as the defend- the same At about Angeles, Dyer groups left two other ant and Los Angeles points young group One men left Los east. age Joseph Juszczak, Cole, age 22, Arnold included age Melski, Buffalo, York, all and Boleslaus New sought Angeles unsuccessfully who had in the work Los traveling area and were to Detroit. The other group age Cockrell, Daryl Andrews, consisted of James age 17, graduates Sarcoxie, Missouri, high two recent school, journeyed Angeles who had to Los for summer thejr employment to finance continued studies a small college. They, age, Missouri because of their had also securing employment been unsuccessful and were returning home. 20, 1952, deceased, May Budzien, Sr.,
On Ward age 47, Angeles salesman, driving a Los a 1949 Buick 4- sedan, picked boys door Missouri up two a few miles beyond Bernardino, California, city limits, San and 10 highway, Buffalo, miles further down the the three New York, boys up. group proceeded were on, picked with three occupying the front seat and three back (Ward Budzien, seat. The Sr.) deceased observed the (Bourdlais) Dyer standing beside highway at the intersection Highway of U. S. 191 and 91 and told the occupants to make room so that ride, could also secure a as he had hitchhiked himself young. when he was drinking The deceased had been *4 to the extent he was intoxicated before he picked up driving the hitchhikers. His became so erratic that by Daryl he was asked Andrews to let him drive. The (Budzien) deceased seat, took Daryl a rear Andrews took the group driver’s seat and the continued on. The occupants deceased drink, offered all but no one other than the defendant took the They bottle. stopped in Barstow, California, gasoline for and the deceased sent pint defendant after another whiskey. When the whiskey noticed a roll he with the returned defendant according pocket deceased and in the bills shirt whiskey bought testimony: I “When his own to money Budzien, the man, and returned this Mr. I and I of bills there noticed a roll to his shirt pocket, figured money.” I would rob him of his California, Baker, where group on to continued entering cafe, the a roadside stopped eat. While they to got Dyer, companion “I’ve some- to his said defendant whiskey.” lay Dyer said, off thing “So the cooked up.” drinking, only I’m pre- “I’m not responded, tongue to my bottle tending. stop I stick throat,” going my while liquor down from he was Daryl Andrews that defendant reiterated cafe tongue All sticking drinking in the bottle. but although something parties eat and had coffee, having Andrews had remembers defendant he had a and he believed defendant ate testified that the paid for out of funds the meal was After sandwich. cigarettes pur- (Budzien), supplied by deceased chased, places in vehicle. parties their resumed driving seat, Cockrell with front Andrews In the Dyer him, and Juszczak beside the next to next next to the deceased sat door. In the back seat front him, door, Cole beside the defendant beside the left right rear Melski next and Boleslaus defendant through- Although drank he door. defendant testified one in that no Melski and Cole testified out the trip, eating Baker, anything drink after at had the car California, Dyer, had been afraid did who might get hands in have him on his drunk and would Vegas, over defendant becom- who lost concern Las but along. ing they Budzien had intoxicated as traveled occupants asleep in the back seat were fallen discussing problem drivers of of hitchhikers with stop the hitchhiker who would vehicles get pull away. approached The defend- would said, anyone did to me I’d fill him full of “If ant got thing He then removed to do it with.” holes —I’ve
from his belt the 38-caliber revolver. It never left his trip, hands for although the remainder of the defendant Dyer and his friend contended that Cole handled it at point. one put away Defendant was asked to and he going stated he was to rob (Budzien). the deceased He feigned illness and asked to Andrews stop vehicle. He awakened get Budzien out, and asked him to but was by told get Budzien and by Cockrell to out the other door, door. He closed the struck Cockrell on the arm group continued on for a distance of miles when, hand, with the revolver in his the defendant leaned over the back of the front seat and asked if the boys robbing Budzien, wanted in on defendant testified, “I boys did they ask the other if wanted in on robbery taking money.” or in on young- The two est, Cockrell and Andrews said did not and asked Vegas. be let out Proceeding of the vehicle in Las Vegas, on Nevada, into Las passing through and after city, outskirts Andrews and Cockrell were permitted leave, by but admonished the defendant not say anything to the police. As Juszczak them helped luggage remove their from the trunk of the vehicle he get asked them to remain as the five of them could gun away defendant, from the who remained in the boys, however, vehicle beside Budzien. The Missouri frightened immediately were too and went to a drive-in reported the incident to the police. others pro- driving, Dyer ceeded on with Juszczak beside him and right Melski sleep- beside the front door. Budzien still ing, occupied seat, rear left defendant next to him point beyond Cole rear door. At a Henderson, County, Nevada, Clark Juszczak was directed pull highway off the main proceeded They onto a up dirt road. the road until the defendant directed stop Juszczak to the vehicle. The defendant struck Budzien over the head with the butt gun of his three times. Budzien awakened and asked why being he was hit. told Budzien that he going to rob him and take his car. The defendant money removed from the of Budzien while pockets *6 two were still in the vehicle and ordered Budzien then out the left rear door. Outside of the vehicle the defend- proceeded money pocket ant to remove the from shirt the Budzien, Cole, and Juszczak and endeavor to an them, the man had save who befriended left the vehicle. Cole went around the back of vehicle and approached the approached Budzien as Juszczak Budzien from other the Cole, side. In view of defendant both Juszczak and raised the revolver to the of the deceased temple pulled trigger. the Cole froze in their and Juszczak tracks. testified, thing I “The can remember gun pulling I went oíf. remember
real well is when the man; trigger. why I I I the real- the don’t know shot gun off, I done the went because ized had when what (cid:127) body gun my I hand.” When the of the had the looking ground defendant, slumped to the the deceased feet, prostrate the at the form at his made statement: boys ordered than a mackerel.” He the “He’s deader dig grave the trunk and he a tire iron from removed asking get vehicle, Dyer to car- of the at the same time tridges have an suitcase that he would not out of the so empty revolver. He loosened the dirt chamber in the dug boys iron the other with their with the tire while body pulled then defendant hands and point had fallen from the where it deceased burying body grave. Before shallow would blow the face off the deceased so said that he recognized he would and further he could be markings clothing laundry destroy and burn clothing. boys were able to talk the defendant body covered. The defendant of this and the out dig grave returning his intention expressed deeper the vultures would not be attracted so that spot and the attention of called to by-passers They body. the vehicle returned to where location glove compartment the defendant searched the may They have had. then deceased other valuables the highway, drove to the main proceeding back towards Vegas, Nevada, along Las way and stopped to obtain gasoline They Igloo for the vehicle. next went to the Pittman, Nevada, to secure rooma and the defendant register. knowing went in to Not the license number of the vehicle he asked accompany that one of the others Harry Dyer him and his friend was called to the man- ager’s register office to Juszczak, with the defendant. Cole and Melski remained in the vehicle and as the defendant, Dyer, manager of the motel went into room, Juszczak sped turned the vehicle around and out highway, into proceeding Vegas, Nevada, on into Las as fast as the Dyer vehicle would travel. testified that while he was in the motel with the defendant after the boys left, three Buffalo had the defendant became *7 enraged because the car had been taken and stated that nothing; he killed the man for he because wanted the gone, nothing; car and now the car was it was all for boys going if he had known the were to do this would have killed them too. Vegas, Nevada,
At an intersection in Las Juszczak Vegas department observed police a Las spun car. He around, the vehicle stopped the middle of the street boys and the three New York ran over to the policeman report what had witnessed. The policeman quieted down, them radioed the office sheriff’s that he boys, had made placing contact with the them in his vehicle and returned to the intersection the drive-in boys where the waiting two from Missouri were with proceeded other All officers. back to the motel where Buffalo, York, boys the three New had last seen the Dyer. They defendant and Harry motel, searched the but were unable to find either of them. One of the highway sheriff’s vehicles proceeded down the with the boys walking five and in the opposite lane of traffic were Harry Dyer. They the defendant and were ordered over up vehicle with their hands and the murder weapon was removed from the belt of defendant. Dyer Defendant and were taken in another vehicle to leading grave con- point dirt road where navigated highway. Defendant nected the main with up no power road and needed under the dirt his own opinion arresting assistance, officers and in the any indicated he was under not in condition that was grave site, defend- of alcohol. At the the influence body Dyer and removed the from the ant earth custody. taken into deceased the defendant was and dead, I being booked, “He’s After defendant said: say him, I killed and that is that. don’t want more.” Clark in the office of the
Defendant was examined 22, 1952, County attorney May by Dr. G. W. on district Shannon, of Patton Hos- superintendent assistant Department a of the State of California pital, branch examination, Hygiene. Dr. Mental Based that sane; Shannon was he is concluded defendant he had normal mental psychopathic personality; development, able to intellectual and was development, wrong. tell the difference between and produced The defendant is sub- evidence on behalf of stantially follows: Marinette, Wisconsin,
He in 1927 of a was born large impoverished family. family resided poor building city had as a which been used house repair inwas need of and which lacked the minimum running water, electricity, inside conveniences of family In 1942 toilet facilities. 1925;
reported have on rolls been the relief since *8 crippled, except father was for unemployed defendant’s bartender, jobs odd or or and was an part-time a cook mentally was retarded alcoholic. Defendant’s mother brother, Francis, illiterate. An older was committed period to an for the of institution feeble-minded for a years. more than four childhood one
Defendant’s was of severe privation. age bicycle, At the of 11 he was stole a apprehended, pleaded guilty, probation. and was on In June placed age 14 at the of was committed the State he
242 charge guilty pleading to a
Industrial School after July 26, 1951, except car theft. From June until intervals, for institutionalized brief defendant was school, Reformatory, or the industrial Wisconsin Prison, stealing, parole, Wisconsin for violation of attempted escape. During this of time defendant was on three period August (November 6, 1941, 14, 1946, occasions Febru- ary 13,1947) subjected to mental examinations Peter Bell, M.D., Psychiatric examiner for the Field Service Department of the Wisconsin State of Public Welfare. During period of time defendant was twice placed Hospital Wisconsin, the Mendota an institution persons care which treatment for with provides illness, diagnosis mental for the of medical purpose treatment and mental observation and treatment. He February 7, 1942, was transferred to said on hospital attempt, after a suicide and remained there until March 18, 1942, when he was returned to the industrial school. hospital Defendant was later returned to the said (the further observation record shows that defendant August 14, 1942), was on subsequently there and was Boys. returned to the Wisconsin School for result As a of the examinations and observations (the place aforesaid first of which took when defendant age years 19), and the last when he was was examiner, Bell, reported Dr. that defendant had a low age age mentality. At 14 mental normal was deter- age separate At mined to be on two occasions 13%. age years, a mental 6 months. He showed grade age repeated the at the of 14. Dr. Bell sixth reasoning powers further reported that defendant’s were judgment and that his defective. impaired Dr. report unstable, Bell’s further to be showed preoccupied, inhibited, sensitive, good devoid of self- confidence, immature, obsessed- conflicts of personal nature, self-conscious, depressed, rather morbid and thought associations, in his blocked rather schizophreni- cally reaction, colored in his and evaluated defendant as *9 having neurotic character defect. Dr. a Bell’s prog- poor it and nosis as to defendant’s future was that was that defendant’s future was dark.
Although defendant, at the time of exami- Dr. Bell’s nation, proper was found to be unable to evidence self- control, distinguish he was found to be able to between wrong. foregoing only purpose
referWe for the of call- ing respecting attention to the substance of the evidence family background childhood and defendant’s and with history necessary his institutional which deem we to a understanding questions full of some of the raised on this appeal. drinking night
With reference to his on the shooting, testimony defendant’s was somewhat at vari- ance with of other witnesses. He testified that after Dyer up by Budzien, he and had “I been seen picked him tip up the bottle and take drink and he offered it everybody around and asked if wanted a drink.
Nobody accepted. good I took the bottle and had a pretty drink.” When Budzien moved to the back he “took seat drinks, of more handed the couple bottle over to me and couple I took a I more drinks and handed it back to him. He set on floor his feet and then dozed * * * off. Whenever I wanted a drink I didn’t want to wake him Iso would reach over and take up, a drink put cap put securing on and it back.” After bottle, other I “He took a drink took a drink and he put it back on the floor. No one else in the car was drink- ing, just myself and Mr. Budzien. I think we drank liquor most of which inwas that bottle.” Other than this, gave testimony no as to the extent of liquor consumed him. He testify did not that he became intoxicated.
Harry Dyer part as follows: testified in “Q. along you highway, Now moved down the is becoming you your it true that concern over Vernon lost * * * A. intoxicated? Yes.
“Q. Yes, speech coherent? A. Was sir.
“Q. plainly? A. Did he Yes. speak “Q. eyes I clear? A. am not sure Were his eyes.” condition of his County, Bell,
Lloyd deputy of testified sheriff Clark as follows: part
“Q. walking Now, Bell, you with officer while were you opportunity an observe the defendant' did have Yes, steady A. sir. whether he was on his feet? “Q. straight up he A. He walked How did walk? road without help.
“Q. standing A. Yes. Was erect?
“Q. you Did whether have an to observe opportunity A. there was a smell or odor of alcohol on his breath? There was not.
“Q. opportunity you Did have an to observe whether eyes or ? A. I not his were bloodshot at that time didn’t get good opportunity too an to noticé.
“Q. you opportunity Did have an to observe whether speech or his A. was slurred or thick? It didn’t to me to be so. appear
“Q. coherently? Yes, Did he A. speak sir.” assigned. Seven errors are assignment point Defendant’s first makes the that the giving court erred in 30. Instruction No. Instruction No. 30 reads as follows: a
“It is well settled rule of law that drunkenness is no excuse for the commission of a crime. Drunkenness no guilt, for, forms defense whatever to the fact of by party when a crime is a while in a fit of committed -intoxication, the law will not allow him to avail himself gross of his own vice and misconduct to shelter himself legal consequences from the of such crime. Evidence of jury drunkenness can considered be for the purpose determining degree of crime, or for determining purpose whether the defendant was alleged insane sane or at the time the offense was com- mitted.”
Defendant contends that Instruction No. 30 does not fully correctly law state the with reference to drunk- enness a defense to the crime of murder because it they might failed to advise consider intoxi- determining cation in the existence of specific mental particular condition essential of a the commission degree kind or of offense. 9966, N.C.L.1929, provides:
Section “INTOXICATION, BE WHEN IT MAY CONSID- ERED OF IN MITIGATION Sec. No OFFENSE. 17. by person voluntary act committed while in a state intoxication shall be deemed less criminal reason condition, but whenever actual existence of particular purpose, necessary motive or intent is a ele- particular degree ment to constitute a species *11 crime, may the fact of his intoxication taken be into con- determining in purpose, sideration such motive or intent.” reading
It will be noted from Sec. 9966 that it does drinking by require not that the defendant must be con- particular sidered in the determination of a necessary intent to constitute a particular crime. may
statute the fact states of intoxication of person be considered. reading
In entire record this case we find that drinking while there is some evidence of on the of part defendant, particle there is not of evidence con- tained therein to show the defendant that was intoxi- Upon cated at the time of the commission of the crime. point the evidence is to the effect that he this was not intoxicated.
In not once the course trial did defendant claim his mental condition was confused to the extent that he transcript testimony killing.. The had no intention of of any claim fails to show of intoxication drunkenness part on the He he defendant. testified drank deceased, in the of but while he was vehicle he did assign facts for his haziness about not this as a reason discharged hand was until revolver held his respect In com- had this he then realized he done. what witness, every testimony other with that of pare his Dyer, including Harry testimony the defendant’s of if as he defendant made appear witness. Because drinking bottle, Dyer that he testified were from having upon his hands was about concerned group pro- Vegas drunk, if but he became Las Dyer Vegas, lost testified he all ceeded on towards Las Compare becoming intoxicated. concern over defendant Andrews, testimony that also with of Juszczak and his saying defendant’s that testified to the was who both tongue drinking, in the bottle but was placing consuming liquor. Compare to prevent .testi- Lloyd Deputy Bell, who testi- mony Sheriff with of gave appearance having no fied the defendant intoxicating liquor and no been under the influence person. on his alcohol was smelled cited the case of State referred has 3; Jukich, Johnny, 29 87 P. State v. Nev. v. Johnny, 217, 242 In P. 590. the case Nev. supra, ample there evidence of intoxication offered. defendants drunk and Witnesses testified that both were day evening offense; the whole before the boisterous they drunk that needed assistance were so along. get Jukich, In the case of State v. each other testimony was not as supra, conclusive *12 However, gave Johnny the court case. instructions Johnny given in This on those the case. does patterned mean, however, improper not that it would have been the of did not to so instruct if evidence the case not case, in each warrant such instruction. The instructions course, must determined the evidence of be on adduced. out, require pointed 9966 does not that As section evi- determining drinking par- considered in a dence of be regard, ticular intent. In this attention called to is O’Connor, 416, page 11 of Nev. at 424. Nevada say: had court this to
“The second third were instructions refused to defendant, assault, the that if effect the at the time of the forming was so drunk to be enter- of or incapable taining kill, intent to could an not be convicted as charged. sustaining It is a sufficient reason for give instructions, refusal of the court to these that there is not particle of evidence contained in the record going to show that defendant was intoxicated at the court, time of the assault. It at is true that request defendant, gave other instructions to found, the effect that if the defendant was on account cause, of intoxication other or not have entertained to kill, an intent he could not be convicted of the crime charged. prove This does that there must have been intoxication, some prove evidence of but it does not that degree there was evidence of such of intoxication incapable as would have rendered the defendant enter- taining forming an to kill.” intent Heinz, 1241,
See also case State v. Iowa 19, reported in 114 at A.L.R. at page N.W. 973. partial In the above case the court held “that drunken- ness does not make the formation crimi- impossible of a nal intent and the was evidence insufficient prove that defendant was so intoxicated he was unable form In a criminal intent.” the above case the conten- same appellant case; tion relied was that complete and it instruction was not did not advise the jury might consider intoxication of defendant as reflecting required ability on to manifest intent kill. The case instruction makes no reference to appellant, the consideration the mental condition of whereas Instruction No. 30 in the case at bar specifically provides can so consider evidence intoxi- cation and whether defendant was sane or insane at alleged appel- the time the offense was committed. The testified, drunk, Heinz “I lant case awful myself I pretty but as far as would consider I was drunk,” pointed out, testimony no such was elic- bar, ited from the case at as such was *13 248 par- case, held that court In Heinz
not the fact. the formation make does not impossible drunkenness tial was insufficient the evidence of criminal intent a unable intoxicated that he was was so prove ruling that court’s It was the criminal intent. to form given. predicated instruction on the could be no error opinion, case, in our Therefore, the facts of the under 30 court did giving No. the trial Instruction prejudicial error. constitute not erred that the trial court in next contends refusing give C. defendant’s Instruction proposed Proposed Instruction C reads as follows: defendant, you from a that the
“If find preponderance killing, by at reason intoxication the moment insanity incapable forming in mind or had not formed his mind intention commit you robbery murder, then must find the defend- either guilty.” not ant foregoing pro- trial court refused instruction
posed by ground defendant on the not cor- does rectly state the law as to intoxication. properly that said instruction
Defendant contends C.J.S., page 757, the law cites states thereunder, propo- citations of his support numerous sition. a
From careful examination of the cases cited proposition, the defendant in of his crimes with support charged did which defendants were involve required crimes a lesser included offense which no It intent. will be noted in the at bar case that Instruc- given request tion No. at the of defendant and instruc- all tions on lesser included offenses the crime of given jury. among murder were Included these involuntary instructions No. 24 was Instruction on man- slaughter, which specifically provides an uninten- being killing tional of a human in the commission of might probably an unlawful act or of lawful act which produce manner, consequence such an unlawful is *14 manslaughter. involuntary pro- Under the instructions by posed for the would have counsel precluded returning guilty been from a verdict of manslaughter. involuntary C.J.S., 1334, page 993,
As state'd in 23
section
“It is
proper
request
to refuse a
for an instruction which does
correctly
not
Sheeley,
state the law.” See also: State v.
88, 97,
96;
Skaug,
63 Nev.
162
59,
P.2d
State v.
63 Nev.
68,
708,
130;
161
Burns,
P.2d
163 P.2d
v.
27 Nev.
289, 294,
The did court not err in the above proposed instruction. giving next contends that the court erred in No. 25. Instruction No. 25
Instruction reads as fol- lows: presumed proven
“The defendant is to be sane until determining insanity insane. In whether the defense of out, you made has been must decide whether the evi- against outweighs. dence or it If the evidence tend- ing outweighs insanity against it, to show then it is proven, case; not If it is out proven. if proven, along proof; it takes its with place other received if, upon evidence, settled, the whole as thus there is guilt, degree, reasonable doubt of either in existence or given doubt, the defendant must be the benefit of such acquit grade either to or reduce the of crime.” given The defendant contends that Instruction 25No. insanity the court relative to in the instant case was prejudicial error for the reason that the instruction does support not law. In argument, appel- state the of this C.J.S., 1200, lant relies 23 section 754. page authorities cited correctly thereunder do not state the jurisdiction. law of Behiter, 236, of State v. 55
In the case Nev. 29 P.2d charged 1000, distinctly insanity’ the court is not raising simply established doubt as to proved or not. Such has been the whether it exists law of this jurisdiction opinion Lewis, in State v. since reported
250 goes 241, the court 333, in which P. Nev. insanity length problems
great discussion defense to crime. as a 29, at (Cal.), 263 P.2d Perez v. People
In case of 31, stated: page the court to be sane was presumed
“Defendant com- time of the at the upon him to show incumbent distinguish able to he was the homicide mission consequences wrong nature or know the from acts.” of his 413, page Nelson, at 36 Nev.
See also State
good
no
reason for
said it saw
court
wherein
P.
changing
Lewis case relative
in the
rule enunciated
*15
insanity.
subject of
See
law on the
propositions of
505,
ter repetitious, Clearly they failure to combine are ity. wholly single appears to be instruction into them hardly However, unjustified. in itself can be said this regard do not error. We constitute prejudicial giving prin- undue prominence instructions the circumstances of case it involved. Under ciples given necessary many instructions be deemed
251 subjects insanity and over- of and intoxication to a certain extent was almost unavoidable and lapping hardly likely conspicuous one to become instance. Jukich, 217, page
In the 49 case State v. Nev. at 239, 590, 242 P. the court said: Johnny, 203,
“In case of State v. Nev. 87 P. 3, practically given instructions were same approved by court, in which the this was twice told that evidence of drunkenness should be received with great caution.” view, then, giving
In our of Instructions Nos. 26 miscarriage justice and 27 did not result in a or preju- rights dice the the instant case. In regard 59, Skaug, the case of State v. 63 Nev. at page 74, 708, 130, 161 P.2d 163 P.2d held: the court (sec. N.C.L.) places
“The statute the burden on authorizing an error the kind to show appellant judgment. we said in this court to set aside As State- Williams, 279-285, 555, v. 220 P. 557: 47 Nev. ‘From reading it must not of this statute appear erred, affirmatively the trial' court but it must appear miscarriage justice, the error resulted in a actually prejudiced words, the defendant. In other we indulge presumption in no favorable can to the defend- clear, unequivocal, unambiguous pro- ant. is the Such Willberg, 183, vision of the statute.’ v. 45 Nev. State Ramage, 82, P. 51 Nev. 269 P. *16 are the effect.” to same per- that the court erred in next contends
mitting expert testify witness to as to the the State’s sanity the time of defendant at the act with which charged, and as to whether not he was at that he is distinguish right wrong, and to between over time able objections of defendant’s counsel. authority in of this support
As his sole proposition, upon the case v. defendant relies of People Jacobs reported P.2d 128. (Cal.), in 51 (Cal.), reported v. Woods
In case of People say: 940, 942, has this to the court P.2d “Finally, contends that permitting the defendant objections opin- give his their alienists to over the two ability concerning determine the defendant’s ions prej- right wrong, trial court committed between behalf, relies almost In the defendant error. udicial Jacobs, 2d 128. wholly upon People Cal. 51 P. App., defendant, fortunately for Unfortunately but for the resting California, case is the opinion people painless morgue, having to a succumbed judicial in a by the inoffensive order gas of an form lethal higher sphere. transferring the case to Court Supreme get the advance sheets opinion further than did not The permanent volumes of the in the not appear and does Reports. law in California.” It not the is court, page points the various tests for out at contests, determining capacity commit- in will mental standing institutions, person an insane to mental ment say: insanity, had this to trial and criminal giving opinion his that the “If the is limited to expert jury never test insane the will know what is person expert consideration as basic test of insan- took into his case, expert ity. if the cannot be asked In a criminal accused knew from his as to whether the opinion wrong, jury absolutely left in the dark as to is expert mind the or not the is his applying whether insanity.” correct test of stated, 943: at page
The court further province jury no more an invasion of “It is give opinion expert accused an his that an is legal including test, insane, him the correct than for merely insane, give opinion is that the accused his pro- cases hold that it is an invasion of the none of the expert give opinion jury for the vince of fairly argued is insane. It cannot be the witness by allowing is caused the accused prejudice expert which the to know basis has reached his grounds hand, conclusions therefor. On the one
253 jury expert’s not believe the that the opinion if the does disregard merely, the accused is insane it will opinion. hand, jury the On the other if the does not believe expert’s opinion that the accused knew difference the disregard wrong, between it will likewise the jurors question for the are opinion; instructed that the they is for them to decide and are not bound to that accept opinion any expert conclusive, the and that they may disregard any opinion such if it shall be found by them to be unreasonable. conclusion, support see our that tend
“For citations
Keaton,
Law, 584; People
211
Ruling
v.
Cal.
11
Case
543,
Willard,
609;
89 P.
v.
Cal.
296 P.
People
124; People
follows: you testimony are of expert
“While not bound the witnesses, still, considering testimony, pro- in such standing witnesses must into fessional of such be taken arriving verdict; you consideration at a should character, skill, oppor- consider the capacity, the of mind of the for observation state tunities opinions considered are be experts expert.
you with all other evidence the case. connection not to to the exclusion of other You are act them testimony testimony. apply You are rules to same experts are to other witnesses in of determining applicable weight.”
its jury instructed No. 34 court In Instruction of the their to award to statements province weight to which various witnesses credence might entitled, judgment be and in Instruc- their jury exclu- tion No. were advised it was the jury and determine sive decide province seen, therefore, questions of fact. It will be given by properly charged instructions as the court given testimony as to the consideration to be expert weight witness without undue placing 254' *18 Evidence,
thereon. See 11th Edi- Wharton’s Criminal tion, 993, page 1738, pointed section at wherein it out is as follows: they
“Such are admissible because are scien- opinions jury tific from deductions the facts to enable the to questions intelligently, they decide the of fact and are they received nature because the of the facts is such that correctly by jury cannot be understood unless expert gives opinion as to facts what such do or do not indicate.” People Woods,
The supra, decision in v. was cited approval Burgunder with (Arizona), in v. State P. 256, (Cal.), 2d and 498, in v. Dawa 101 P.2d People accepted court held insanity test of in criminal cases is distinguish whether right defendant could between wrong, permitted and testify and experts were to to such fact. showing,
In the instant case there was no evidence tending show, that the defendant was insane at the time he killed Budzien. That he knew the nature of his planned evidenced fact that he act is it and planned, quickly it from it executed as hastened as he He could. knew he would be if punished apprehended doing because he knew what was constituted not robbery but murder in its perpetration. permitting The court did not err in the State’s expert express opinion ability witness to an as to distinguish wrong. between assignment For his sixth defendant contends that the giving trial court erred Instruction No. judicial comment,
consisted of placed weight undue testimony expert witness. The instruc- tion when entirety clearly read in its jury states that the is to testimony apply experts same rules to the are determining applicable other witnesses weight to be equal accorded. The appli- instruction had testimony cation to the Bell, of Dr. Peter witness for the deposition objec- defendant, whose was admitted without given The instruction in the case tion the State. Watts, 453, 52 Nev. P. which is authority cited as therefor. The instruction is not erron- could eous. court instruct as the testi- properly expert mony jury witnesses so as to inform the disregard testimony merely such should because given by experts. proposition,
As to his seventh and final the defendant contrary contends that the verdict of the is authority, however, evidence in case. No is cited thereof. support *19 long Nevada, It has the rule in been the State of consistently court, by established and adhered to this that if there is substantial evidence to the ver- support jury, weighed by dict of the the evidence will not be court, judgment nor the verdict or disturbed. This court judgment ground cannot reverse of insuffi- ciency of the evidence where there is substantial evi- jury. Wong dence to the verdict of State support v.
Fun, 336, 95; Boyle, 22 386, Nev. 40 P. 49 State v. Nev. 48; Teeter, 584, 657; 248 P. 65 State v. Nev. 200 P.2d McKay, 118, 389, 63 Nev. 165 P.2d 167 P.2d 476; Fitch, State v. Nev. P.2d 991.
areWe aware of the responsibility seriousness of our in a case where a degree man’s life is involved. To the capable, we are carefully we have scrutinized all matters by substance claimed as error the defendant. We are also conscious of the fact that a trial in the courts of this state is a proceeding justice in the interest of guilt determine or innocence of the accused and not a mere contest to determine adversary. the abler We will not reverse irreg- criminal for causes mere error or ularity. It is where there been has error which is both rights substantial and prejudicial accused that a reversal is warranted. The defendant presentation fair of the case to a full and
was entitled rights of unbiased citizens and to have safeguarded competent been done. counsel. This has accorded full mea- We believe the defendant has been protection afforded him under the constitution sure our and the laws of state. opinion and in our
We have examined the entire case reasonably no other accounted for under verdict could be is, overwhelmingly the evidence. fact the evidence The verdict. supports the judgment denying and the order new are trial
hereby affirmed, and the district court is directed to carrying make the order proper for the into effect judgment prison the warden of the state rendered. JJ., concur. Badt, Merrill Rehearing On Petition March 1954. curiam:
Per
Rehearing denied.