State v. Lawrence

28 Nev. 440 | Nev. | 1905

By the Court,

Fitzgerald, C. J.:

The defendant was convicted in the Second Judicial District Court in and for the County of Churchill of the crime of assault with intent to kill. He made a motion for a new trial. The court denied the motion, and sentenced the defendant to the penitentiary for. the period of fourteen years. Defendant appeals to this court from both the order denying his motion for a new trial. and also from the judgment pronounced upon him by the court.

In his bill of exceptions defendant makes four assignments of error; but his counsel, in the brief filed in this court, relies only upon the following: The defendant was a witness in his own behalf. Mr. Pike (assisting the district attorney) was cross-examining the defendant. After some questions the following occurred: "Mr. Pike: Q. You have been in California? Mr. McCabe: That is objected to. The Court: Objection overruled.” Up to this point certainly no error was committed by the court. Counsel did not point out or specify any error to the court; neither did he take any exception to the ruling of the court. Mr. Pike proceeded as follows: "Mr. Pike: Q. You have been in California? A. Yes, sir. Q. Have you ever been in Northern California? A. No, sir. Q. Never was around Fort Jones? A. No, sir. Q. Fort Bragg? A. No, sir. Q. You have been in Mendocino County? A. No, sir. Q. Never was in Mendocino County? A. No, sir. Q. Ever know a man up there in that county by the name of Fred Heldt? A. No, sir. Q. Never did? Are you sure of that? A. I know I was never up in that part of the country. Q. Did you ever know a man in California by the name of Fred Heldt? A. I do not remember. Mr. McCabe (attorney for defendant): That is obj ected to, if your honor please. It is not cross - examination, not relevant to this case. The Court: Objection overruled. Mr. McCabe: Exception please.” As will be seen counsel objected to the foregoing on two grounds: First, that "it was not cross-examination”; and, second, that it was "not relevant to the case.” Properly to determine these questions it is necessary to make a brief statement of the condition of the case when the objections were interposed.

The defendant was on trial for an assault with intent to kill. His defense was the plea of insanity. The evidence, when the objections were interposed, had not only tended to show, but, it might perhaps truthfully be said, had shown, that the defendant had requested Mr. Garrison, the man upon whom it was charged the assault had been made, to go with him into the country to aid in the making of a survey of some land; that Mr. Garrison accompanied the defendant, and, when they were out some distance in the country, defendant walked behind Garrison and shot him in the back of the head with a pistol; that Garrison fell to the ground; that defendant went a short distance to a somewhat elevated place, and there stopped and looked back at Garrison; that he saw Garrison rising up from the ground; that defendant returned near Garrison, and fired two more shots at him, these shots emptying defendant’s pistol; that Garrison then made some resistance to the attacks of the defendant; that defendant then returned to the town; and that Garrison also made his way back to the town, but by a route different from that taken by the defendant. Under the crime charged, the defense pleaded, and the above-stated conditions of the evidence, we think it qannot be successfully claimed that the evidence to which the objection was made was not proper cross-examination. The defendant had offered himself as a witness in his own behalf; and although it may be true that in his capacity of defendant no other crime than that for which he was undergoing trial could be shown in evidence against him, yet in his capacity of witness convictions of felonious crimes could be so stated on cross-examination as going~to his credibility.

As throwing much light on the doctrine here laid down we cite the following: Keyes v. State, 122 Ind. 527, 23 N. E. 1097; Com. v. Bonner, 97 Mass. 587; Fletcher v. State, 49 Ind. 130, 19 Am. Rep. 673; Wigmore on Evidence, vol. 2, pp. 980-982, 1013, 1018, 1270; State v. Murphy, 45 La. Ann. 958, 13 South. 229; Underhill on Evidence, 497, 498, and authorities cited; Bell v. State, 31 Tex. Cr. R. 276, 20 S. W. 549; U. S. v. Brown (D. C.) 40 Fed. 457; People v. Tice, 131 N. Y. 651, 30 N. E. 494, 15 L. R. A. 669; Spies et al. v. People, 122 Ill. 2, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; 14 Am. St. Rep. 480-482; Cream City Glass Co. v. Friedlander (Wis.) 54 N. W. 28, 21 L. R. A. 135, 36 Am. St. Rep. 895-898. On the first ground assigned we think the court did not commit error.- On the second ground of objection, to wit, irreler vancy, it should be kept in mind that the defendant was in a double capacity — that of defendant, and that of witness. As defendant pure and simple, the testimony was, it may be granted for the purpose of this argument, irrelevant, and therefore improper; but as witness it was not so. It was relevant to the question of his credibility — a question that his testifying in his own behalf put in issue before the jury. The cases above cited, and doctrine laid down, likewise dispose of this question adversely to the contention of counsel for the defendant.

Further along in the cross-examination, and after counsel had pursued for a time a different line of interrogation,, the following occurred: "Q. Did Mary tell you to kill that man Heldt over in Fort Bragg? A. I never saw a man Heldt. Q. You didn’t? A. No, sir. Q.. Didn’t you kill a man by the name of Heldt over in Mendocino County, California? Mr. McCabe: That is objected to, if the court please. That is irrelevant. Mr. Pike: I am trying to find out what Mary told him. Mary told him one thing. I want to find-- The Court: Objection overruled. Mr. McCabe: Exception. The Court: Note the exception. Mr. Pike: Did Mary tell you to kill old man Heldt up there in Mendocino County? A. No, sir; I never saw an old man Heldt.” It will be observed that the question to which objection was directed was not answered. The question which followed was somewhat different from the question objected to; and, even if it were error to have admitted it over a proper objection, the error would have been harmless, for the same question had previously been asked and answered without objection.

It will also be observed that the answers given to the questions were, favorable to the defendant. In this respect the case is not like that of State v. Huff, 11 Nev. 17, cited by counsel for defendant in support of his position. In that case the defendant was asked upon cross-examination with reference to a number of assaults and batteries, and over the objection of defendant’s counsel was allowed to testify that he had committed a number of such offenses, for which he had been convicted. In referring to these questions and answers, the court said: "We cannot doubt that the answers he gave must have excited more or less prejudice against him in his character of defendant in the minds of the jurors who tried him.”.

Following the examination last above quoted, counsel for the state asked the defendant a number of questions relative to imprisonment in the Folsom Penitentiary in California. The defendant denied repeatedly that he had ever been so imprisoned. It is contended that this line of examination tended to prejudice the defendant in the minds of the jury. No objection was interposed to this line of examination, and whether or not it would have been error to have permitted it over objection does not require consideration.

There are some other matters claimed as errors by counsel for the defendant in his oral and written arguments, but these, not appearing in the bill of exceptions, need not be discussed here.

There being no error in the judgment or order appealéd from, the said judgment and order are affirmed.