35 Nev. 485 | Nev. | 1913
Lead Opinion
By the Court,
Defendant was convicted of the crime of murder in the first degree under an indictment charging him with the killing of John Gregovich by stabbing with a knife at Tonopah on the 14th day of May, 1912. Upon the trial the case was submitted to the jury upon the evidence introduced on the part of the state.
This court has often applied this statute in murder and other cases, and refused to set aside convictions or remand actions for new trials for errors which did not affect the substantial rights of the acccused. (State v. Williams, 31 Nev. 360; State v. Jackman, 31 Nev. 511; State v. Skinner, 32 Nev. 70; State v. Simpson, 32 Nev. 138, Ann. Cas. 1912c, 115; State v. Petty, 32 Nev. 384, Ann. Cas. 1912c, 223; State v. Martel, 32 Nev. 395; State v. Depoister, 21 Nev. 107; State v. Vaughan, 22 Nev. 285; State v. Hartley, 22 Nev. 342, 28 L. R. A. 33; S. N. M. Co. v. Holmes M. Co., 27 Nev. 108, 103 Am. St. Rep. 759; State v. Smith, 33 Nev. 459.)
In State v. Buster, 23 Nev. 348, it was held that the failure of the trial court to make the proper order striking out the testimony of a witness ■ concerning a' confession was harmless error, because the same confession was conclusively established by several other witnesses whose testimony was not contradicted. As the evidence was clear and undisputed that Mircovich killed Gregovich by stabbing him with a knife, in the presence of numerous people, at the railroad station, the jury could not have found otherwise, regardless of whether testimony relating to a confession or statements concerning the knife were properly or improperly admitted. The closing argument of the district attorney was an appeal to the jury to uphold the law and fix by their verdict the death penalty. Upon the conclusion of this argument, exception was taken thereto by counsel for defendant. No particular portion thereof was at the time pointed out as objectionable; nor was any request made that the court instruct the jury to disregard the same or any portion thereof. The court, in the course of its instructions, admonished the jury as follows: "You should bear in mind that it is your duty to determine what the facts in this case are from the
The objectionable portions of the argument pointed out in the brief are as follows: "Why, gentlemen of the jury, if you cannot pronounce by your verdict the death penalty upon this defendant, I say, let’s resurrect old Casey that killed Mrs. Hislop in Goldfield and let him live again. * * * There is another feature. You have the society of this country to uphold and maintain. If you can’t do it, who will? If the jurors of this county cannot uphold the law, who will? If it is not guarded and protected and maintained, how long will it be before anarchists take possession of this country? What is an anarchist ? He is worse than the black hand, because an anarchist does not believe in government or in law. That is the proposition you must consider. When old Tom was asked whether he advocated the swinging of this man without a trial, and if he did not go up and down the streets of Tonopah making such remarks, he said 'No,’ but he thought that the crime was such that this county should have been saved the expense. There is no excuse in this county for mob law; as long as we have courts, as long as we have men of courage, as long as we have men of honest consciences who have the good of the community at heart, there is no necessity of mob law in this western country, and there is no necessity for it in any country. * * * We don’t-want it. We will not have it, gentlemen; but, if you don’t enforce the law, I say that you cannot deter crime. You cannot keep these anarchists from coming into this country, killing our presidents, and killing honest, honorable men. Think of that! Oh, but he committed this crime while there were dozens of people around. When you go to your jury room to consider your verdict, gentlemen, that fact, and that fact alone, will show you that this man sought the time and the place and the opportunity to do what he did do. Wasn’t McKinley killed in a crowd, and wasn’t Garfield killed at a railroad station amidst a rush of
The judgment and order denying the motion for a new trial are affirmed, and the district court is directed to fix a time and make the proper order for. having its sentence carried into effect by the warden of the state prison.
Concurrence Opinion
concurring:
I concur in the judgment and in the opinion of the chief justice generally. The closing argument of the district attorney, to which serious objection has been urged upon the appeal, in some particulars I think is not to be commended. This argument was directed entirely to an appeal for the infliction of the death penalty. In view of the record in this case, however, I am of the opinion that the argument did not violate the substantial rights of the defendant.