32 Nev. 384 | Nev. | 1910
By the Court,
On the 9th day of March, 1909, upon a public street in the Town of Sparks, Washoe County, defendant killed his wife, May Petty, by shooting her five times with a pistol. He was indicted for this' uxoricide, and upon trial a verdict was returned of murder in the first degree, with punishment fixed at death. Judgment was entered in accordance with the verdict. From the judgment and from an order denying defendant’s motion for a new trial, defendant has appealed.
Upon the trial defendant relied upon the defense of sadistic insanity. In support of this defense, the defendant went upon the stand and testified in his own behalf. Pie also called as a witness Dr. A. H. Hepner, who qualified as an expert, and testified, among other things, to having made a physical examination of the defendant prior to the trial, and detailed certain physical conditions existing in the defendant, which, in part, formed a basis for his opinion that at the time of the killing the defendant was insane.
For the purposes of rebuttal, counsel for the state requested the court to appoint three physicians and to order that the defendant be submitted to an examination by them relative
Considering this constitutional provision, this court by Hawley, J., in State v. Ah Chuey, 14 Nev. 83, 33 Am. Rep. 530, said: " The constitution means just what a fair and reasonable interpretation of its language imports. No person shall be compelled to be'a witness — that is, to testify — against himself. To use the common phrase, it 'closes the mouth’ of the prisoner. A defendant in a criminal case cannot be compelled to give evidence under oath or affirmation or make any statement for the purpose of proving or disproving any question at issue before any tribunal, court, judge, or magistrate. This is the shield under which he is protected by the strong arm of the law, and this protection was given, not for the purpose of evading the truth, but, as before stated, for the reason that in the sound judgment of the men who framed the constitution it was thought that, owing to the weakness of human nature and the various motives that actuate mankind, a defendant accused of crime might be tempted to give testimony against himself that vras not true. * * * From whatever standpoint this question can be considered, the truth forces itself upon my mind that no evidence of physical facts can be upon any established principle of law, or upon any
While this opinion was rendered more than thirty years ago, it is recognized as a leading case construing this provision which exists in most of the state constitutions and in the federal constitution. Not all of the authorities are in harmony with the Ah Chuey case, but the weight of authority is. The reasons supporting the conclusions reached in that case are convincing, and need' not be repeated here. In this case the defendant had interposed the defense of insanity, had offered himself as a witness solely in support of this defense, had been physically examined by a physician for the purpose of enabling such physician to testify concerning his physical condition as bearing on his alleged insanity, and such physician had testified in regard thereto. He could not therefore interpose any legal objection to the state having the benefit of the same character of expert examination which he had
Counsel for appellant further contends that it was error to order the examination of defendant’s person or to permit the physicians appointed by the court to testify to facts disclosed by such examination, for the reason that the purpose of such examination was to contradict the witness Dr. Hepner for purposes of impeachment, and, as Dr. Hepner had, upon cross-examination, testified that he had not based his opinion on the physical symptoms of defendant testified to by him, "except the typical degeneracy written on his face and head]’ his testimony relative to defendant’s heart and genitals was as to an immaterial matter, and hence could not be contradicted for purposes of impeachment. We do not think the testimony of the physicians appointed by the court can be regarded solely in the light of impeaching evidence. Dr. Hepner had testified at length as to the condition of defendant’s heart and genital organs, and it was not until cross-examination that he stated that he did not take into consideration the condition of these organs in reaching his conclusions as to defendant’s mental condition. Counsel for defendant never withdrew this portion of Dr. Hepner’s testimony from the case or offered to have it stricken out. It was all included in the hypothetical question propounded to the witness by defendant’s counsel.
Sadism is a mental disease in which the sexual instinct is abnormal or perverted. Where this character of insanity is relied on, the physical facts, now claimed to be immaterial, would very naturally be given some weight by the jury in defendant’s favor where it was shown by uncontradicted testimony that they were abnormal. -The testimony of Dr. Hepner was that defendant’s heart and genital organs were abnormal, while that of the physicians appointed by the court was that they were normal. The court in ordering the physical examination of defendant was careful to limit it to the points testified to by defendant’s own expert. If counsel for defendant deemed these physical facts immaterial, he should not have offered testimony concerning them, but, having offered testimony of the existence of certain physical characteristics of
The objection to the testimony of the physicians appointed by the court was general, and went to all of their testimony, without specifying any certain portion thereof that was claimed to be immaterial. The examination also went to the head, including the mouth, teeth, and tongue, of the defendant, which are conceded to be material points. No specific objection to the testimony relative to the other alleged immaterial points was ever made. If such objection had been made, its overruling could not, we think, constitute prejudicial error, unless defendant withdrew or caused to be stricken out the testimony offered in his behalf concerning the same facts.
Counsel for appellant also' contends that prejudicial error was committed because of certain remarks of the deputy district attorney embraced in an objection to certain testimony offered upon the part of the defendant, and because of certain remarks of the district attorney during his argument to the jury. During the progress of the examination of Dr. Hepner by defendant’s counsel, the witness was asked to describe his examination of the person of the defendant made prior to the trial, and to detail statements made by the defendant during
Both these remarks were but the expression of the opinion of the state’s attorney, and, conceding that they were improper, we think the order of the court striking them out and instructing the jury to disregard them obviated any injury that might possibly otherwise have been done the defendant. Counsel during the heat of a trial occasionally express opinions and make unwarranted statements, but the courts generally hold that these statements are not sufficient to warrant a new trial where they are either withdrawn or ordered stricken out, as was the case here, and the jury directed to disregard them. Where an attorney asserts either directly or by innuendo the existence of a fact that would tend to prejudice the minds of the jury against the defendant, and there is nothing in the evidence tending to establish the existence of such fact, courts generally hold such statement to be prejudicial, and the striking of it out and the instruction to disregard it may, not be held to cure it. Such a situation is illustrated in the case of State v. Rodriquez, 31 Nev. 342, recently decided by this court — a case in which the judgment of conviction was reversed for remarks of the district attorney which were held not to have been cured by the order and instruction of the court. The limits which counsel may go in addressing a jury or in the conduct of a case must necessarily be left to the discretion of the trial court, and it is only in cases where remarks are clearly prejudicial that an instruction to disregard will be held not to cure. No hard and fast
Courts have frequently been called upon to reverse cases because of the remark of the attorneys for the prosecution, who through a misguided zeal appear to have forgotten that they owe a duty to the defendant as well as to the state. This case, however, does not present a situation of this kind, and we think it clearly falls within that class of cases where the error if any is cured by the action of the court. (Sawyer v. United States, 202 U. S. 150, 26 Sup. Ct. 575, 50 L. Ed. 972; State v. Simpson, 32 Nev. 138; People v. Owens, 132 Cal. 471, 64 Pac. 770; People v. Pope, 108 Mich. 361, 66 N. W. 213; Palmer v. People, 138 Ill. 356, 28 N. E. 130, 32 Am. St. Rep. 146; Grubb v. State, 117 Ind. 277, 20 N. E. 257, 725; People v. Smith, 180 N. Y. 125, 72 N. E. 931; People v. Matthews, 139 Cal. 528, 73 Pac. 416.)
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 all necessary and proper orders for having its sentence carried into effect by the warden of the state prison.