*1 tried in been court trial on' the doctrine actual authority upon agent by conferred the owner. assigned finding
Error also the court’s as to the value furniture. As we have concluded that judgment denying any plaintiff affirmed, relief to must be given becomes immaterial. We have consid- points presented by eration to all appellant but find no error. judgment denying and the plaintiff’s order motion
for a new trial are affirmed with costs.
Horsey, J., Eather, J., C. concur. THE NEVADA, Respondent, STATE OF JOHN MURRAY, KISER,
JOSEPH WALTER and ANN Appellants. KISER, MARIE
No. 3538
March
1950.
Carville for Appellants. Bible, General, Attorney Mathews, Special Alan T.W. Attorney General, Geo. P. Assistant Annand and Robert McDonald, General, Deputy Attorneys L. Leonard Blais- dell, County, Attorney District of Mineral and Wm. M. Kearney, Reno, Respondent. for
OPINION Court, Badt,
By the J.: Defendants, appellants here, who are the were found guilty grand larceny court district County, judg- of Mineral and have from the appealed denying from the order their motion ment and for assign They particulars, new trial. error several assignment of error the third embraces numerous rul- ings rejection in the admission and of the trial court assignments fourth and fifth of error evidence giving court in numerous orders of trial include *5 objections over the of the defendants instructions refusing requested and in defendants. instructions great only a number We have then to deal not with assignments made error record but with a voluminous days. lasting The up in of a some eleven the course trial facts follows: are as
Mina, County, Gabbs, in Mineral and north to its forty-two Nye County, apart approximately are miles running by highway general and a connected north- a erly southerly and direction. Some north nine miles Luning. Mina The Kiser Mr. and Mrs. defendants Mina, Murray place resided and lived a at defendant at Roadhouse, three known as Roberts some miles south Gabbs, engaged a About where he as bartender. was. eighteen large two culverts miles south of Gabbs underpasses highway under were constructed carry canyon or off flood waters from a wash known Wash, Springs from Petrified which comes down large sufficiently are These two culverts southwest. through. permit an automobile to drive m., p. 30, 1947, Ritchie, About 7:30 October one Dale agent Company residing an for the Shell Oil at Mina, driving from Mina to he was Gabbs. As approached over the he passed culverts noticed lights shining from the culvert upon the hillside east highway. car, He his back stopped walked underpass and called down to see if there had been wreck, if needed. He help was testifies looking was, “No, reply are for a we road of here.” out facing noted, car, north Gabbs. He His toward starting, his car but before the car in the returned to out, highway, drove out to the came turned culvert toward and started south front of him Mina. car coupe belonging pro- to the Kisers. Ritchie was the distance toward Gabbs and saw a ceeded a short bunch highway, frightened, apparently beside of cattle together up. packed and with their closely heads Ritchie around the coupe to follow and within the turned his car returning coupe mile or more met the toward course of Again Gabbs. highway Ritchie turned on the *6 and fol- coupe lowed them. The at the Roberts Road- stopped along and up house Ritchie side them. Under pulled coupe the rear deck or turtleback of the a he saw legs butchered beef of which the hind and tail were being partly cover protruding of the turtleback —the Murray closed. left the car and had him two with heavy hunting knives which Ritchie and demanded Murray’s bloody. received from him. hands were Rob- erts, proprietor, the came out and roadhouse knives, they claimed the Ritchie advised that could be returned to in him due time. He told Mr. and Mrs.
Kiser that would have to come with him to Mina. noted, County above As Mina is in Mineral while place Nye County. Roberts in The Kisers was drove arrival, to Mina and Ritchie followed in own car. On his beef, were delivered to the knives and the car deputy sheriff deputy at Mina. The sheriff awakened Baker, grocery Roland who had a store and butcher shop Mina, at and the beef was taken from the car and placed lungs in the icebox. Baker removed the heart and which good were still in the carcass. The cow inwas lungs condition and the heart and were still warm. It Hawthorne, was later removed to a freeze plant at and good the meat was in and condition fit for human con- at the time of the trial. The identi- sumption beef was years belonging fied as a heifer a little over two old and “leppy” to one J.W. Stinson. It a calf whose was highway, had mother been killed on the and had been something pet. raised on a bottle and was of a following day discovery On the of the defendants with beef the Kiser coupe, officers made an investigation premises and followed automobile through coupe tracks identified as made the Kiser westerly up southerly and and underpass the Petri- Springs fied for Wash about a half mile and moccasin circling tracks from a where the car ato stopped away hillside a short distance where fresh entrails were definitely found. The moccasin tracks were identified spot made moccasins. At the found Kiser’s was long empty .22 case and an an rifle shell unexploded long .22 rifle shell the same make as numerous shells rifle found the Kiser car suitable for use in a and No subsequently found in Kiser home at Gabbs. found in the Kiser coupe. rifle other firearms were .22 The cow had been killed calibre bullet that lodged just the back the neck behind horns penetrated spinal had which column apparently hair, which, powder from burns appeared range inches. Blood- had been fired at less than ten coupe on and on the rear wheels stains the Kiser coupe the floor where the on of the culvert or underpass flowed from the had indicated that blood had stopped *7 were found was carcass. The terrain where the entrails rough the rocky. A to and direct line from the entrails feet, and highway was 300 nearest on the about point highway a man on from which the nearest the standing be was about the could seen entrails feet. three
Each the defendants testified in defense and foregoing any of dispute not facts. Kisers did the simply they the that found dead the testified carcass of highway, mile the cow about a half from returned the to hunting place they the two Roberts where borrowed Murray knives and returned with them assist that to bringing in so that could them in the cow it be delivered notified; and its owner that to the authorities proper proved good preserved if meat to be could be and dog In be cooked for meat. otherwise could they this, Mr. Mrs. related how Kiser had been through country being day taking (it a drive Kiser’s places off), had a number of and were on their visited shortly they way Mina before when home to sunset pursue road under the to old culverts decided beauty scenery up for the and their the wash place, for it was there Mr. recollections that fond dog permitted had been had that proposed; Kiser their barking place at a on the was hillside run loose and to and that when investigate cause, Kiser went to he dead; found the heifer that it was bloated and he stuck it in pocketknife; the stomach with his that it smelled badly; they that place drove back to the Roberts Mr. Murray Roberts ordered to return with them and gave hunting knives; assist them and them the two that they Nye County understood that the sheriff deputy would at place evening the Roberts that and that they him; they could deliver to carcass that drove coupe back in Murray to the carcass where made an opened incision the neck and Kiser the carcass and (It removed the entrails. dark and Mrs. Kiser was then flashlight lights held a assist work. The car light shining although carcass.) afforded some on the disemboweling they That before the animal tried to load thought it into the unable to do so and coupe were disemboweled; they that it could be better done if that car, back, then loaded the cow the drove stopped underpass, few moments under the and returned to highway where their was to deliver the first intention Mina, County carcass to the authorities of Mineral at driving distance, but after a short decided it best turn back and deliver authorities of the carcass to the Nye County Gabbs, Murray at any had event work; they return attempt there to made no at concealment; legs kind of hind and tail of protruding deck; beef could be seen from under the rear up drove to and in front of Roberts parked *8 lighted; brilliantly they place that was that did not kill killed; the not animal did know how it was that they any during at no time had firearms with them their trip; appro- any that at no had time intention of depriving to own the animal their use the priating during of it. It that the true owner was also shown parked highway afternoon another car was seen on the neighborhood of A of the culverts. number wit- good reputation the of nesses testified to all defendants. brief describes animal the Appellants’ being verge of when found as “on the putrefaction.” deputy One of sheriffs testified to Mrs. Kiser’s state- finding high toas the cow “stunk to heaven.” that ment pretty Kiser also testified the cow “smelled bad.” that covers almost From the fact that the transcript pages testimony that fore- thousand of it will be seen going however resumé is indeed brief. We believe opinion. necessary all for this presents of facts It is the main facts adduced the State apparent not include were contradicted the defendants. These animal, possession their participa- their of the butchered disemboweling high- it, position tion their under the over, possession way Ritchie drove their when disemboweled, their knives with which the cow was loading trans- of animal into the Kiser their coupe, place, their surrender of of it to the Roberts portation Ritchie, ownership of the .22 calibre the knives to their flashlight car, of when remov- use shells their entirely ing Their defense consisted the entrails. nowWe solely criminal intent. of the absence of assignments proceed appellants’ error. against verdict
Point I. It is that the is asserted respect weight is In attention of the evidence. this evidence nature called to the circumstantial testimony several various discrepancies a matter for the All however witnesses. of this verdict was jury, cannot said and it evidence. on substantial based assigned in the court’s denial Point II. Error at the close of the State’s defendants’ motion dismiss argument particularly defend- case. directed This regard necessary Murray. to examine In it is ant brought grand jury. It by the the amended indictment as follows: reads Court, the above-named District
“In and the action Nevada, Joseph Murray, ‘The vs. John entitled Kiser,’ Kiser, and Ann Marie Attor- Walter District Evansen, ney, G. informs the Court Martin that John Kiser, Murray, Kiser, Walter and Ann Marie Joseph *9 October, 1947, day commit of about the 30th did on or felony, as fol- grand larceny, committed the crime of take, steal, feloniously lows, did to-wit: Said defendants the cattle carry away long yearling cow of heifer and one belonging another variety, property but to not their own wilfully unlaw- and person defendants did and that said large running their not fully at kill the animal same Mineral, County being own, the same situate form, contrary Nevada, to all which and case made force, in such and effect of the statute dignity of the State against peace and and provided, of Nevada.” charged sec. under which the offense is
The statute Laws, follows: Nevada and reads as Compiled feloniously steal, person and “Every who shall take mare, geld- away any horse, carry, lead, drive or entice any calf, mule, jenny, ing, cow, bull, steer, jack, or colt, goat, any sheep, or head of cattle or horses one or more belonging property hog, not own but or his pig, shoat every person mark who shall other person; to some branded, brand, or shall to be marked or or or cause defaced, deface, a mark altered or or cause to be alter or bull, gelding, colt, cow, horse, mare, upon any or brand mule, jenny, any steer, calf, jack, or one or more head goat, hog, horses, any sheep, shoat or pig, or cattle or belonging person, other property to some his own prevent thereby or the same to steal with intent defraud; owner, by the or to true thereof identification defraud, toor who, with intent every person wilfully any use, animal kill his own shall appropriate branded, own, marked large, running whether at not his sell,or purchase, person not; every who shall or any defraud, animal hide or carcass intent to with out or oblit- has been cut mark on which the brand grand larceny, and guilty erated, upon be deemed shall punished imprisonment shall conviction year nor more than one not less prison for term state years.” than fourteen *10 foregoing
It will be noted from the that there section categories, are any four classes or which will one of sup- .port charge grand larceny. a The first attaches to carrying, away leading animal; or the the second branding defacing animal; or the brand on an the third killing running large; an animal at and the fourth selling purchasing to the or an animal whose brand has been cut out or In obliterated. each four of these classes by the criminal intent must attach. It contended killing that under counsel the indictment as drawn taking by the cow as well as the of it the defendants was necessary proof, it element of was obvious that Murray part from the evidence had in could have no killing. We have discussed at further length IV, appel- under Point No. which appellants’ assign jury, lants error in the instructions to the and we found, noted, carrying away have as there the animal with criminal intent was sufficient to charge. Point III. Under A subdivision of this point, list six appellants they instances which contend that evidence was admitted and that it was improperly error objections to overrule their to such evidence. The first applies testimony to the admission various wit nesses as to made statements Kiser and Mrs. Kiser ground upon the that Kiser’s admissions incriminated his wife that Mrs. Kiser’s admissions incriminated husband, her and that this was an indirect violation of 8971, provisions N.C.L., provides that, of sec. which “A husband cannot be examined as a witness for or against consent, his wife her without nor wife for against her husband consent.” without his In neither given. It case was consent should first be observed voluntarily that both the husband and wife testified on behalf all of the defendants. In a strict sense there against examination of the wife as was no her husband against Secondly, the husband or of wife. it taking voluntarily stand, be noted should Mr. and Mrs. Kiser testified almost verbatim both to the
143
so-called
admissions testified to
the other witnesses.
This had
to do with their
had found
statements that
dead,
smelling,
cow
bloated and
and took it without
intent,
delivering
criminal
but for the
purpose
authorities.
proper
In
made,
event it is clear that
at
statements
the time when both Mr. and Mrs. Kiser were found in
possession
beef,
gestae
were a
of the res
as such were admissible
the fact
that neither
despite
against
could be made a witness
the other.
v.
Breyer,
324,
560;
State,
40
232
Idaho
P.
Blocker v.
118
803;
State,
Tex.Cr.
40
2d
Cook
S.W.
Tex.App.
recognized
It is assignment also asserted under this that no testimony foundation concerning was laid for the state ments of the defendants because were not first might warned against their statements be used assignment them. This well taken. State Gambetta, 66 Nev. 1059. P.2d assignment,
The second under of subdivision A III, general language, in attacks without reference any particular parts specify of the record and without ing precise claimed, the of nature the error the admis sion of the in cow evidence and the admission of testi
mony concerning killing only' the of the cow. The objection made to the admission of the carcass was that proper the foundation had not been laid. founda was, opinion, although tion in our And the ample. killing actual of the cow was not an essential of charge taking carrying cow, away and shooting cow, fully of the as hereinafter more discussed jury, in consideration of instructions to the court’s proper was a circumstance to be considered. shells,
The admission of two boxes of a knife scab bard, single shell, slug live or bullet taken from cow, car, knives, in loose shells found two and shells that were removed from the shell boxes or had fallen out in in transit each instance assailed as error.
In objection proper each instance the was made that the alleged laid, growing foundation had not been out of the failure of the condition these show the exhibits through they passed at times various when various hands alleged they were from the crime to date the time varying degrees items these introduced evidence. In through passed and his deputies, hands the sheriff returned, were to the F.B.I. and mailed thereafter etc. transcript testimony carefully We have read laying each the foundation for the introduction of and every purpose to It will one of these exhibits. serve no testimony length. say review Suffice it to such at Each we each case. consider foundation sufficient identified, precisely item with its connection established, presenta- fully its care and defendants forwarding to tion the enforcement officers its satisfactorily established. from the F.B.I. return Rigid by defendants’ cross-examination witnesses change any any elicit indication of counsel failed to assignment (A special condition of articles. these live- discussed in the admission of the shell is error later.) assignment the third A
Under under subdivision point, ruling of this attack the court in appellants sustaining the witness Ritchie his refusal to answer “reliably” question to who had him that informed *12 night brought there was to be beef into Gabbs on the point 30, 1947. Counsel make no of this other October ruling precluded by than that the defendants were such refuting testimony, it from this and that impeaching admitted, that, presumed if would have been must be and unfavorable to the to the defendants State. favorable in answer The had testified to defendants’ witness going that he to the cross-examination was counsel on Finger and described where this was. Rock Cow Camp “Q. asked, going you up And what were Counsel then reliably quite I had A. Because been for? there brought to be beef into Gabbs that there was informed notify going camp to the cow to night I was that objection camp.” No was to this the men at the made testimony out. nor motion made to strike it was you “Q. Well, told that beef then asked: who Counsel night?” going brought And that was to be into Gabbs he had that he could not answer as the witness said given person’s He name. his word not to mention question definitely court, and the refused to answer the being compel ruled, answer, to the witness to on asked inquiry particular the is too far collateral to “that legally see no case material.” We issues circumstances, discretion, under the abuse limiting refus- and in the cross-examination court’s thus ing compel witness to answer. assignment under this subdivision The fourth testimony deputies because the of one of the attacks memory had been refreshed admitted that his latter weight testimony during was of his If recess. circumstance, for a matter this was diminished to consider. assignment com under this subdivision The fifth testimony plains in rebuttal admission of certain that the testimony improper. went to the condition This was given testimony proper rebuttal of beef and was up puffed Kiser that the cow was smelled Mrs. pretty bad. assignment sub under this
Under the sixth photo assigned admission for the division error is highway graphs near Gabbs. and of the the culvert photographs properly identified and were objection only fully made further laid. The foundation they proper The defendants rebuttal. were not was that describing premises length the same testified at had prop objection photographs depicted erly overruled. complains B of III
Subdivision gestae improperly limited the doctrine of res court rejecting evidence offered the defendants. certain They say: Kiser testified that went “Defendants Murray them, Gabbs, returned to the animal with *13 146 not, however,
and that They knives were obtained. were allowed to these actions because of the explain illusive gestae They doctrine of res formulated the court.” say they right further were denied the to show any part intent. We are not referred to of the record proof in which such offer of was made nor have we any. may objec- found We note however that over the gleaned tions of the intention must be from actions, permitted person’s were defendants testify depriving had no owner intention of stealing of the cow or of her.
Appellants Hall, 54 Nev. 13 refer to State P.2d 624, in which this court refused to limit the doctrine of gestae res to matters concurrent precisely time involved in homicide there considered. It sus- admitting beating tained the lower court in evidence of a immediately administered after appellant shooting, also tended to show the fact that this despite guilty offense. The case him of another and distinct reading point. A furnishes no appellants’ entire record no violation of the rule indicates expounded in the Hall case. exceptions IV embraces their Point No.
Appellants’ given No. the court. Instruction to instructions following It words: is first attacked. follow- Nevada contains the “The law of the State of ing provision: person “Every feloniously steal, who shall take * * * horse, mare, cow, carry away any gelding, colt, * * *
bull, steer, one or more cattle calf head of * * * belonging to some other property not his own * * * same, thereby person with intent to steal the * * * branded, own, whether marked or not his * * * grand larceny.” guilty deemed not shall 10325, N.C.L., from the fore which
Section taken, quoted in going full earlier instruction was question do the well- Appellants this opinion. statute, prohibited by that, recognized where not rule discretion, instructing jury, may in its the court *14 only quote such a statute are relevant and parts applicable Appellants the to case. however complain that the instruction is “an the absolute misstatement of prejudicial and a law misstatement because of the refer- branding.” ence testimony to Much was to addressed question the Under the brands and earmarks. unquestioned person stealing feloniously law that a belonging guilty larceny, cow to one some else is by adding there nowas misstatement of law the instruc- tion that such was the case whether the cow true, by appel- branded or not. If it were as contended lants, “garbled” statute, that the court the out “picking word, phrase regardless there, here and sentence general statute,” scope of the tenor and of the we should prone agree just to cause to com- have appellants plain. do the case. We not however find such to be quoted No. 3
Instruction to the that part charging of the amended information the defendants feloniously stealing, taking carrying with away and one long yearling cow, etc., omitting heifer charging the information “and that said did defendants wilfully running unlawfully and kill the same at animal large,” Appellants etc. contend that in such instruction “garbled” only the court not the tenor of the law but also “garbled” “in the information order to sustain a con viction.” the We have seen that under the statute large range killing running on felonious of a cow at the felony taking stealing is a and that the felonious regardless cow, any killing, of a felony. is likewise a It killing is obvious that the combination of the taking necessary not to constitute the crime. In State Jones, v. 7 Nev. in which the not indictment did allegations contain all of the that would have made it precisely statute, that, conform this court held indictment contained “all essential facts con stituting taking larceny show that the which —facts authority law, unlawful,” was without and was it was Likewise in sufficient. Nev. Phipps, 1024, 1026, only part 282 P. of a where statute was charge jury, court
included in the court’s language being upheld “substantially same as defining case the offense. The Phipps statute” Law, C.J.S., many in 23 others are cited Criminal general 1194, p. 743, rule that sec. language give necessary if the exact statute language all the crime and embodies used defines here, Such we find to be case elements thereof. sug authority us to no have referred and appellants objection gesting contrary. particular coincides II to effect that No. with appellants’ *15 proof required by the drawn amended information as well car killed-the cow as as the defendants that State guilty of away, the court was and that ried her allegation regarding the as to prejudicial error in killing surplusage. to be the main This appears as they in raised-by appellants, cite thereof: 208; v. 132, 120 P.2d Cushing, 61 Nev. State v. 679; L.R.A., N.S., 382, 444, 47 Massie, 78 72 W.Va. S.E. 622, 1017, Leonard, 94 Am.St. 71 S.W. State v. Mo. 798; State, 417. We 133 Ind. 33 N.E. and Littell nothing Cushing to sustain conten in the case find properly held that tion. In the Massie case it was regard surplusage indict a court could not negatived 444, 78 the offense of ment which [72 W.Va. allegation of “obstructing public road” a 383] S.E. showing road. So also it was a private facts indictment, the additional matter the Leonard case allegation negatived commission of the true, if Bishop approval quotes with The Littell case offense. surplusage Procedure to the effect on Criminal rejected “if it offense an indictment cannot be shows no committed, not or that otherwise the prosecution maintainable,” Ind. 33 N.E. dis 420] [133 allegations tinguished of cases which were a number allegation surplusage. Here the of properly treated as negatived way killing cow in no the crime of away. carrying The treatment court of the it killing, surplusage, enough allegation left of charge a constitute valid The court of the offense. charged jury instructed the the defendants were stealing with the felonious cow was the and this guilty. of which were crime found 4No. Instruction is as follows: you beyond evidence, “If find from the a reasonable day October, 1947, that on or doubt about the 30th County, Nevada, defendants, Mineral State of or steal, them, feloniously carry away take either did long yearling cow, one heifer not the of them- property belonging per- or selves either of them but other some thereby son, with intent the same to appropriate thereof, you their own use and the owner then deprive defendants, them, or either as the should find may show, guilty. proofs beyond a
“If the elements of crime are not shown doubt, guilty. your be, verdict not reasonable should “ doing means, ‘Feloniously,’ on done mind bent with wrong, guilty mind.” that which with objection only Appellants’ to this instruction is that crime are not shown “If the the sentence elements be, doubt, your should beyond a verdict reasonable finding guilty,” to make a invitation to the is “an case, nor guilty.” see that such is We cannot particular could have sentence that this appear does *16 prejudicial the defendants. The instruction is been eliminating element in claimed to be erroneous also cow, that we have hereto- killing matter a disposed fore of. 5 definitely
The court’s instruction No. instructed unnecessary prove jury for the it was cow, defendants killed the “but that the that killing cow, beyond you if find a reasonable
of said heifer ,of killed, by the defendants or either doubt that it was you may them, as circumstance in be considered in of the evidence the case.” Defend with all connection testimony complain days “after of about bul ants burns, slugs, lets, powder and other which evidence could nothing prejudices inflame the passions do
150 jury,” for the first time in the denial of developed killing defendants’ motion to dismiss that proof unnecessary, that such of the information was surplusage killing and that the could be considered as a charge taking in circumstance connection with the carrying away. We are referred to no authorities contention, in of this and must conclude that none can such be found. given
Instruction No. 7 was
follows:
as
jury
“The
are instructed that when a man’s conduct
may
consistently,
reasonably
evi-
and as
from the
dence,
motives,
referred to two
one criminal and the
innocent,
duty
presume
your
other
it is
that such
conduct is actuated
innocent motive and not the
presumption
may
criminal. This
of innocence
be over-
beyond
come
doubt.”
a reasonable
proof
assigned
error.
The inclusion of the
sentence is
last
Appellants
only to cloud an other-
assert that this serves
clear and clean-cut instruction. The
itself
wise
sentence
law,
is
not claimed to be a misstatement of
and it
is
clearly
properly
a correct statement of law.
It was
given.
Am.Jur.,
definitely
53
It
approved
Agnew
States,
Trial,
sec. 686. See also
v. United
235,
“The Nevada Laws of contain felony, persons commission of a “All concerned constituting they directly commit act whether though commission, offense, or aid and abet its prosecuted, pun- present, tried and hereafter be shall ished as principals.”
Appellants prejudicial claim that this was particularly Murray say: reading to defendant “After a could have no recourse but to find instruction Murray guilty, which it did.” It is claimed the defendant only wording partly also that the instruction statute, 10869, N.C.L. The portions sec. negative any included in the instruction dis- statute not *17 between, accessory tinction an before fact allega- necessity eliminate other principal, against against accessory required tion his an than are in The inclusion entire section principal. of the damaging appellant instruction would have been more to position Murray part given, than the and he no complain. assign 9No. as error. also instruction Appellants given following It was in the words: offense, every
“In crime there must exist or public joint intention, operation or criminal union or of act and negligence. circumstances con-
“Intention is manifested offense, perpetration and the nected with the accused. person sound mind and discretion “The an accused person appropri- intent with which question of money property use is a or to his own ates evidence in Jury from the fact to be determined particular case.” general instruction on intent contended that It is such specific required intent prejudicial view 4 above quoted in instructions the statute as The use error in the instruction. find no discussed. We subject negligence” is likewise of the words “or criminal nothing prejudicial in the use attack, find but we words. these assign giving error the of instruc
Appellants recognized of evi defines two classes tion which positive testimony dence, namely, of an the direct Appellants evidence. do eye and circumstantial witness good law, given is not that the instruction not claim indirectly calls the attention killing we have treated elsewhere cow. This justified holding the court was its instruc in our killing considered as could be evidence of the tion that elements with the other connection a circumstance of proof. assign appellants error V
Under point *18 152 give requested
court’s refusal
to
certain
instructions.
Requested
necessity of
No. 2
instruction
covered the
intent but
instruction.
proving
was covered
another
Requested
none
3
that
instruction No. was to the effect
guilty
of the
it was
defendants could be found
unless
proved beyond
killed the
reasonable doubt
noted,
cow,
taking
carrying
away.
her
As
besides
appeal,
appellants’
such is the
in this
principal
dismiss,
for new
raised on the motion
the motion
to
through-
trial,
request
for instructions and elsewhere
appeal
presentation
this
the trial and in the
to
out
adversely to
contention.
court. We hold
this
give
complain
their
of the court’s refusal to
Appellants
requested
No. 25. This is identical with
instruction
given
discussed,
7
except
No. heretofore
instruction
contain
sentence “This presumption
it does not
beyond
may
a reasonable
be overcome
proof
innocence
No. 7
instruction
as
As
have approved
doubt.”
we
necessary.
given, no further discussion is
give their
complain
refusal
Appellants
of the
question
requested
26.
It covered
instruction No.
repeti-
simply
have been a matter
and would
of intent
Appel-
183,
Willberg,
Appellants duty No. 27 instruction explaining their proposed rejected evidence, etc., jury with of the reference weighing admitted, province the evidence etc. its assignment of error only statement given in a federal case identical instruction that an substantially the It is however same in this district. given by 11 the court. instruction . requested Appellants’ instruction No. 28 was: “The jury may that a reasonable court instructs doubt prove on the the failure state to created crime.” In item of its instruction an essential among things: other “The instructed court upon prosecution every burden rests to establish element of the crime with which the defendant charged, every element of the crime must be estab- beyond lished a reasonable doubt.” requested Defendants’ instructions 29 and Nos. refused, again
which the court would have made it neces- sary prove for the state to the defendants had killed guilty the cow before a verdict of could be reached. We have heretofore of this disposed phase case. assign
Point VI. error in the Appellants court’s *19 denial testimony of defendants’ motion to strike the of Deputy picking Sheriff Vidovich with reference to his up single live shell near cow between three and morning bush, four o’clock in the under a with the aid' flashlight, of a and to strike the admission of the shell urged picked It was that when the witness evidence.. up thereby destroyed possible finger the shell he latent prints thereon. The record not indicate does that this piece intentionally tampered of evidence was with and picked up it did it fact that was thus not render inadmissible. assigned,
Error is likewise because court testimony denied defendants’ motion to strike the witness Fontaine who examined the cow carcass of the brought placed storage. when it was in to be He cold slaughtered. if was asked he believed the animal was Having by qualified express opinion, been the State to his he said that carcass looked to him if it had been slaughtered. proper claim that this was not Appellants rebuttal, clearly testimony but it is rebuttal of the of the defendants to the fact that the animal was on the verge putrefaction when found it. Fontaine’s testimony freshly killed animal indicated that it was dressed. that had at least been bled and Under VII it is said defendants’ jury counsel that when the' returned the verdict guilty it was stated the foreman that the recom “leniency” leniency” mended or “extreme for the defend ' Murray. ant The record no discloses recommendation of so, assert
leniency. but Counsel concede this “woefully inadequate” that transcript that reporter though by appellants to the even it returned transcript July, 1948, correction and the corrected for 1948, December, reporter until was not returned inaccuracies, many omissions and it still contained among being of the recommendation them the omission subject leniency. record is the for The condition State, briefs, while and the much discussion theory all expressing adhere to the the desire to Dept. merits, ex rel. heard their cases be on 631, 510, Pinson, 199 P.2d 66 Nev. Highways 65 Nev. neither the record was assert P.2d required of time so periods nor served within filed give jurisdiction As we have of the appeal. court affirmed, have judgment we must be that the concluded length respec necessary to consider at not found serv to the preparation, with reference tive contentions very patently leaves much filing record. It ice deny the State do for be desired. Counsel .to foreman announced returned the verdict was iafter Murray, leniency for jury’s for recommendation leniency.” But “extreme deny do recommendation leniency appeared recommendation even if the *20 Murray. In Kramer appellant record, not serve it would urged appellant 304, 262, State, 108 P.2d 60 Nev. v. recommending leniency was verdict that when the returned, duty the trial court’s to ascertain what it was intended, court, citing v. but this State meant and was 120, Stewart, 9 held that the recommendation of Nev. This, leniency the verdict. in our no constituted complete contention appellants’ answer opinion, have in the instant case should the trial court jury its verdict. Nor can we to reconsider caused leniency appellants’ that the recom agree assertion with finding “negatives jury Mur mendation guilty beyond a doubt.” ray reasonable was Assignment VIII refers to the error No. court’s assign- Under new trial. motion for a denial grounds urged no ment are that have not been heretofore discussed. parties filed,
After all briefs been had appellants filed a “Petition to have court consider and constitutionality 10989, N.C.L.1929;' decide of Section prejudicial also to correct error to defendants’ constitu rights during tional trial,” progress of with brief Respondent thereof. served and filed a notice petition. of motion Upon to strike the submission of the case on the merits of the appeal, petition motion were also ordered submitted. The had petition jury’s viewing to do with the Ford and the coupe courtyard cow’s carcass in the of the courthouse. The petition motion to strike is denied. The is also denied.. 10989, N.C.L., authorizing Section is the section proper jury court in a case to order a view charged “the place which the offense to have been committed, or in which other material fact occur red.” Neither the section nor constitutionality its any way applicability is involved in the case. No view in the sense of the statute was had. The carcass coupe of the cow and the Ford were both marked as identification, exhibits for and later offered and admitted bulky brought in evidence. Too to be into the court room, they yard were left in the courthouse custody sheriff, jury. and there viewed They important constituted evidence in the case and constantly were referred to witnesses both for the through State and for the defendants pages hundreds of testimony. statutory A taking “view” is not evi merely dence but is to enable the satisfac more torily weigh given evidence in court. v. State Hartley, 372, 33; Nev. 40 P. 28 L.R.A.
Merritt,
66 Nev.
only objection made to the of admission of either these items in evidence was that foundation had proper not been laid. The foundation was more than ample objection properly petition and the was overrúled. The nothing for our consideration outside of the presents assignments error, appellants’ prejudi of limitations of brought rights, duly cial to the of to their attention court, appeal. trial disclosed the record on State 889; Lewis, McNeil, 428, 59 v. 53 Nev. 4 P.2d State v. 820; 380, 262, Merritt, 91 66 Nev. Nev. P.2d State v. by appellants 706. P.2d The authorities submitted The of their are not petition point. present distinguishable Merritt, clearly from case is 706, point of law Nev. 212 P.2d as to the both question the facts. Here no involved and as to there was coupe ownership as to the Kisers’ fact that the defendants. In the the beef was in all possession unlawfully of court Merritt evidence was taken out case defendant, presence under the claimed without the N.C.L., part proof sanction of sec. unlawfully altered the brand on the the defendant had animal. carefully and all the entire record
We have examined prejudi- by appellants, no points but we find raised evidence ample cial error and are that there was satisfied judgment jury’s and the verdict. sustain hereby denying are affirmed. order new trial J., J., C. concur. Horsey, Eather, Rehearing
On Petition for April 12, 216 P.2d 1950. 606. 1. Law. Criminal leniency verdict, Recommendation constituted no by supreme original opinion and incorrect statement court leniency did not disclose a recommendation of record judgment ground disturbing for affirmance.
Rehearing denied. Carville, Reno,
Carville and for Appellants. *22 Bible, Attorney General, Alan Mathews, Special W. T. Attorney General, Assistant Geo. P. Annand and Robert McDonald, Deputy L. Attorneys General, Leonard Blais- dell, Attorney County, District of Mineral M.Wm. Kearney, Reno, Respondent. for
OPINION
Per Curiam: Murray
Defendant alone has for rehear- petitioned ing. original opinion incorrectly In the we stated leniency record did a recommendation disclose Murray. for The record does show that the foreman jury indicated that did recommend leniency Murray. original opinion later, for Our how- that, ever, leniency did state the recommendation of con- Stewart, Nev. no of the verdict. stituted correction, 120. the above motion for With rehear- ing is denied.