36 Nev. 403 | Nev. | 1913
By the Court,
Defendant in this case was indicted by the grand jury of Elko County for the crime of assault with intent to commit rape. The crime with which the indictment seeks to charge the defendant is alleged to have been committed on the 12th day of September, 1912.
The motion for continuance having been denied by the trial court, and the cause regularly tried, and a verdict of ■conviction having been entered against the defendant, he thereafter moved the court for a new trial, setting up, as grounds in support of said new trial, the absence of material witnesses to establish the defense of an alibi. This motion having been denied, appeal is taken to this court from the judgment and from the order denying the motion for a new trial.
Appellant assigns error to the trial court for having ■overruled the motion for continuance, and in support thereof cites authorities. The question of continuance in criminal cases is one with which both text-writers and courts have variously dealt; and the rule laid down by Lord Mansfield in a very early case, setting forth three ■essential elements necessary to warrant a continuance, has been more or less generally adopted by courts in recent times. They are: First, that the witness is really
The general rule, embracing the three elements herein set forth, has been enlarged upon to some extent, but the fundamental principle remains the same. From the very earliest times courts, in considering the question of continuance in criminal cases as well as in civil cases, have kept in mind certain essential elements as guides to the proper exercise of their discretion. In some jurisdictions it is expressly provided by statute that where the proof, which the accused expects to make by the absent witness, is material and cannot be satisfactorily made by other witnesses, and he has used due diligence to procure their presence, a continuance must be granted, unless the state will admit the truth of such evidence. Where statutes of this kind are found, they serve as a guide to the court in exercising its discretion in allowing or disallowing a continuance. Where it is shown that the evidence of the absent witness is material and admissible, and that the testimony, in view of the established facts, is not probably untrue, and that the attendance of the witness can probably be procured at another term, and that the facts expected to be proven cannot be obtained from other disinterested witnesses, these elements, together with the showing on the part of the moving party that he has exercised proper diligence to procure the attendance of the witness, have been generally accepted by the courts as essentials necessary to be established by the moving party, by reason of which the court would be authorized in granting the continuance. (9 Cyc. p. 172.)
The affidavit, presumably with the view of showing due diligence, sets forth that subpenas for the absent witnesses had been placed in the hands of the sheriff of Elko County. Diligence which amounts only to the issuance of a subpena may well be regarded as of the very slightest. (State v. Chapman, 6 Nev. 320.)
The affidavit itself shows that neither the defendant nor his counsel had any knowledge or information as to the whereabouts of the absent witnesses. Moreover, the affidavit fails to give any assurance that might be considered reasonable that the attendance of the witnesses could be secured at any subsequent time. There was nothing stated in the affidavit from which the trial court could have even inferred that there was a reasonable
Appellant, in his own opening brief, relies on the case of Baines v. State, 42 Tex. Cr. R. 510, 61 S. W. 119, and especially to that part of the decision in that case as follows: " Where an application for continuance on account of the absence of material witnesses, coupled with an affidavit of such witnesses, showed due diligence in endeavoring to secure his presence and that his testimony, if true, would clearly prove an alibi for defendant, and showing absolutely that he would testify to the facts set up in the application, a continuance should be granted.”
It is our judgment that, where such a set of facts is presented to the trial court, it would be an abuse of discretion, under such conditions, to deny a continuance at least for a reasonable time; but no such conditions present themselves in this case. In this case there is no affidavit of the absent witnesses, and no assurances as to what the absent witnesses would testify to if present. The affidavit of appellant in this case, filed in furtherance of his motion for continuance, sets forth the names of the witnesses desired as Nap O’Grimes and George Fisher, stating that these two men were fellow employees of his at the Peterson ranch, and left the ranch with him, coming to Elko. The witness Peterson, testifying in behalf of the defendant at the trial, stated that the defendant left his ranch with a man by the name of O’Brien and Fisher. From this it may be reasonably inferred that the appellant was in error as to the correct name of at least one of the witnesses sought, and hence
The affidavit of appellant, filed in furtherance of his motion for continuance in this case, is fatally defective in that it fails to show that there were not other persons by whom the defendant could prove the same facts that he expected to prove by the absent witnesses. Moreover, the affidavit sets forth that the testimony sought to be obtained from the absent witnesses could in fact be obtained from another disinterested witness,"the bartender at Guldigar’s saloon.” (State v. Marshall, 19 Nev. 240.)
In view of the defects presented in the affidavit of appellant, filed in support of his motion for continuance, already referred to, and, further, in view of the defendant’s own testimony at the trial and the testimony of other witnesses, presented in behalf of the defendant, as well as in behalf of the state, it is manifest that no injustice was done by denying the continuance asked for, and the trial court did not abuse its discretionary power.
Q. I will ask you at that time if the officers got any description of the man. A. The officers? I described the man. I told the officers.
Mr. Hairston (counsel for the defense) — I object on the ground it is hearsay.
The Court — I have been exceedingly liberal with the defendant, and I will allow the state to go into that.
Mr. Hairston — Note an exception.
The Court — Let an exception be noted.
The Witness — I did.
Mr. Dysart (District Attorney) — What description did you give as best you remember? A. Well, that this man had blue overalls, had on a light hat, something like the color of mine, and gave them the description the little girl gave me at the time.
Q. After you got to the house I will ask you whether or not you received any description of the man who was alleged to have committed this offense. A. Yes, sir; from the little girl.
Q. I will ask you to relate that description as near as you can remember now. A. Well, the little girl tried to describe the man as near as she could. She said he had on a light-colored coat, as near as I can recollect. Mr. Harris was there — I think we got there — in there in a very few minutes.
Q. I will ask you whether or not she gave you any description of the appearance of his face. A. Yes; he had a little mustache.
Q. Did she — I will ask you if she described his hat. A. I think she said it was a slouch hat. I couldn’t say what color the little girl said it was, but a slouch hat, light-gray coat, and overalls.
Q. Did she give you any description of his appearance— his personal appearance? A. She said he was thin in the face and with a light mustache.
Q. I will ask you whether or not she said anything about his walk — his gait. A. The little girl tried to explain to me the style of the man’s walk, that he was inclined to be stooped.
From the testimony of the arresting officer, herein set forth, it appears that, whatever may have been said to him by the witness Manley as to the description the little girl had given Manley, he in fact received the description from the little girl herself prior to the arrest, and apparently acted upon the description as given by her, rather than upon anything else. From this it appears, in our judgment, that though the testimony of the witness Manley, objected to, was not properly admissible in the trial and ought to have been excluded, nevertheless the error in its admission appears to be harmless, and we fail to see where it could have played even the slighest
Counsel for appellant contends that the admission of the testimony of Manley over his objection deprived him of the privilege of cross-examination of the arresting officer, Ouderkirk. This contention, however, is not sustained by the record, for it appears that the officer, Ouderkirk, took the stand as a witness in behalf of the state, and testified as to the description given him and as to matters attending the arrest of the appellant, and at that time ample opportunity was given appellant for cross-examination.
In dealing with insanity as a defense to crime, four theories have been expounded as to the degree of evidence requisite to justify an acquittal. The first theory is that, where insanity is interposed as a defense, it being one of the nature of confession and avoidance, it must be established beyond a reasonable doubt. This doctrine is adhered to in many jurisdictions. The second theory is that the jury are to be governed by a preponderance of evidence, and are not to require the insanity of the defendant to be made out by him beyond a reasonable doubt. It will be observed that this rule is adhered to more closely by the English courts. (The King v. Leighton, 4 Cox, 149; The King v. Higginson, 1 Car. & K. 130.)
The same rule has been subscribed to in many of the states of the Union. (State v. Lawrence, 57 Me. 574; Commonwealth v. Rogers, 7 Metc. Mass. 500, 41 Am. Dec. 458; Coyle v. Commonwealth, 100 Pa. 573, 45 Am. Rep. 397; Baccigalupo v. Commonwealth, 24 Va. 807, 36 Am. Rep. 795; State v. Strauder, 11 W. Va. 747, 27 Am. Rep. 606; State v. Felter, 32 Iowa, 49; People v. Walter, 1 Idaho, 386.)
The third theory is that, where insanity is interposed as a defense to the commission of a crime, the prosecution must prove sanity beyond a reasonable doubt. This rule, generally speaking, has been followed with more or less uniformity by the federal courts. (Davis v. U. S., 160 U. S. 469, 19 Sup. Ct. 353, 40 L. Ed. 499; German v. U. S., 120 Fed. 666, 57 C. C. A. 128.) Under this general theory, adhered to by many courts, it has frequently been ruled that where there is a reasonable doubt as to the sanity the jury must acquit. The fourth theory holds to the effect that where the defense of insanity is set up, in
We do not deem it necessary, in this case, to discuss the relative merits of the four theories herein set forth.
The able opinion rendered by Judge Hawley, speaking for this court in the case of State v. Lewis, 20 Nev. 334, established the rule, which has since been followed by this court in its several decisions, and we see no occasion to change that rule. By this decision this court placed itself in line with those other jurisdictions subscribing to the rule that the jury are to be governed by a preponderance of’ evidence, that the defendant is presumed to be sane until the contrary is shown, and a doubt upon this question alone should not acquit. The rule adhered to by other courts, especially in English jurisdictions, was modified by the rule laid down by this court in the Lewis case, supra, in that it is not necessary that insanity be established beyond a reasonable doubt; but, insanity being an affirmative proposition, the. burden of proving it is upon the defense, and he is required to establish his insanity by a preponderance of evidence. The instruction complained of in the case under consideration is one very similar to the instruction dwelt upon in the Lewis case, supra, and the general proposition of law therein contained was approved in that decision. We see no good reason at this time for changing the rule.
Before a conviction can be had in a criminal case, before a jury can be warranted in bringing in a verdict of conviction, regardless of what defense may be interposed, the law lays down a standard that they must be satisfied beyond a reasonable doubt of the truth of the charge in its entirety. (Rev. Laws, 7163.)
When a defense of insanity is interposed, proof of that defense is receivable by the trial court under the general rules of evidence applicable. It is for the jury, and not the judge, to say whether or not the defense is proven
The decision of this court in the Lewis case, supra, has been commented upon and cited approvingly by many of the courts of last resort. (Maas v. Territory, 10 Okl. 716, 63 Pac. 960, 53 L. R. A. 814; State v. Quigley, 26 R. I. 263, 58 Atl. 905, 61 L. R. A. 322, 3 Ann. Cas. 920; State v. Clark, 34 Wash. 485, 76 Pac. 98, 101 Am. St. Rep. 1006; People v. Dillon, 8 Utah, 97, 30 Pac. 150.)
In the case of Maas v. Territory, supra, the Supreme Court of Oklahoma paid a high tribute to the opinion written by Chief Justice Hawley in the case of State v. Lewis, but in refusing to concur that court said: "With the development of criminal law and the advancement of
No science has advanced with more rapid strides and none has produced more fruitful results in recent years than that of medicine and surgery; and with the development of that science, and the disclosures brought about by its achievements, the veil has been lifted from many things tending to disclose the reasons for abnormal and peculiar acts and eccentric movements of beings. The darkness in which humanity groped in ages past, and by reason of which the world condemned the acts of the individual for the breach of the law, and especially for the abnormalities that appear prevalent in him, is being cleared away by the hand of science, and with the light of knowledge there comes the ever-increasing ray of human sympathy and a persistent study and research as to how this sympathy should best be applied. The great minds of the world, who keep abreast of the times and of development of science, are devising and advancing theories, means, and methods by which the great question of criminology can best be handled. The courts of
The evidence in this case discloses a most peculiar set of circumstances. The defendant, accompanied 'by the little girl, went to the lonely excavation north of the town of Elko. After arriving there, in so far as the record discloses, he did nothing in the way of an act of violence. The little girl appears to have run away from the place, and he did nothing to prevent her going; in fact, his entire conduct, as disclosed by the record in this case, bears out to some extent at least the testimony of those witnesses who testified that they regarded him as being of unsound mind. While it is our conclusion that the judgment in this case should not be reversed, yet the record discloses facts and evidence worthy of an investigation by those invested with the power of executive clemency.
From the foregoing reasoning and observations, we see no good reason for disturbing the judgment in this case. It therefore follows that the order denying defendant’s motion for a new trial should be affirmed.
It is so ordered.
