14 Nev. 453 | Nev. | 1880
By the Court,
Appellant, George W. Cooper, and John Gorman were jointly indicted and tried for the crime of burglary. Appellant alone was convicted. Each defendant was represented and defended by his own counsel. This appeal is taken from an order overruling appellant’s motion for a new trial and from the judgment.
A reversal is asked upon several grounds, one of which only will be considered.
The record shows that “the district attorney offered a paper purporting to be the statement of John Gorman, one of the defendants, made by him upon his examination before the justice of the peace, to the introduction of which, objection was made by the attorneys of the several defendants. Attorneys for the defendant, Soule, objected to its introduction upon the grounds that it was an ex parte statement made in the absence of the defendant, Soule, and
The statement was admitted, and it can not be doubted that its tendency was to exculpate defendant Gorman and to inculpate appellant. If its admission in evidence was error, it follows that a new trial must be granted.
It is claimed by the attorney-general that “if for any reason the statement was inadmissible, it was upon other and different grounds from those stated by appellant’s counsel,” and consequently, that the court did not err in overruling the objection made.
It is undoubtedly true, in crimínalas well as in civil cases, that, as a general rule, the point of objection should, and must be, specifically stated, to the end that the attention of the court may be directed thereto; and that the opposite party may have an opportunity to obviate the objection if it be in his power to do so. (Sharon v. Minnock, 6 Nev. 382.) But it is also true that, if the statement of Gorman was not competent evidence against appellant for any purpose, and was prejudicial to his case, it was error to admit it against his general objection, on the ground of incompetency alone. An objection to evidence on the ground of incompetency and illegality, without a specification of the point of incompetency or illegality, does not avail the objecting party, in case the objection is overruled, if the evidence is admissible for any purpose; but if it is wholly incompetent and inadmissible for any purpose, a general objection on the ground of incompetency is sufficient, and the error will be considered and corrected on appeal.
In Sneed v. Osborn, 25 Cal. 627, the court said: “The appellant makes a further point, that the court erred in ad
Defendants jointly indicted may be tried together; but evidence that is admissible against one can not be admitted against another if it is inadmissible as to him and a proper objection is interposed. In such a case it must be received with proper limitations. Appellant’s counsel appeared and acted for him alone. They had no interest in, or power to act for, the other defendants, consequently their objections must be considered as having been limited to their client, although they did not so state in terms. It therefore follows that if the statement objected to was inadmissible for any purpose as evidence against appellant, on the ground of incompetency, it was error to admit it generally in the case, even though it was proper to be admitted against defendant Gorman. (See Voorman v. Voight, 46 Cal. 397.)
It remains to be considered whether the statement admitted was admissible for any purpose against appellant.
We have no hesitation in saying that it was not, and that it would not have been, had it been certified and authenticated according to law. There is no authority in the statute for such a proceeding, and we are unable to find any decision sustaining it.
In the State v. Ah Tom, 8 Nev. 214, the court said: “During the trial of the cause the state was allowed to introduce in evidence certain declarations made by the defendant Ah Tom to Chinese merchants in San Francisco, several days after the larceny was committed, to the effect that he was entirely innocent of the offense but knew that
If there had been complicity between all the defendants in the commission of the offense, the declarations made by either, after the commission of the offense, could not be used as evidence against the other defendants. A mere gratuitous assertion made by a defendant charged with a crime, exculpating himself and inculpating his co-defendants, should never be received as evidence against any one but himself.
We are satisfied that the error committed in this case was as great as in that. The fact that the statement of Gorman was made at his preliminary examination, instead of to some person out of court, can make no difference. It was still a mere gratuitous, voluntary assertion, exculpating himself and inculpating appellant, made in the absence of the latter. The admission of that evidence was prejudicial to appellant. It was incompetent as evidence against him for any purpose. It follows that the judgment and order overruling the motion for a new trial should be reversed, and it is so ordered.
Remittitur- forthwith.
