No. 2141 | Nev. | Oct 15, 1915
By the Court,
The appellant, J. Frank Tranmer, was indicted in the district court of Humboldt County, together with one
"While it is true that a person charged with the commission of a criminal offense is not called upon to answer the charge without satisfactory proof, upon • the part of the prosecution, of the corpus delicti, yet it is not*147 essential, in all cases, that there should be any direct evidence upon this point.”
Such is the general rule. (Wharton’s Criminal Law, 11th ed. sec. 352, citing many authorities.) In 21 Cyc. at p. 1029, it is said:
" The sufficiency of the proof of the corpus delicti is a question for the jury.”
It is contended that the evidence fails to show that the Maria D. Quilici who died at Winnemucca was the same Maria D. Quilici who was shot at Imlay. We think the jury had ample evidence before it to justify it in finding that the Maria D. Quilici who died in Winnemucca was the Maria D. Quilici who was shot at Imlay. One Lommori, who was called as a witness on the part of the prosecution, testified as follows:
"Q. Did you know Maria D. Quilici in her lifetime? A. Yes, sir.
" Q. What relationship, if any, existed between you and Maria D. Quilici? A. She was my sister.
"Q. Where did she live? A. At Imlay. * * *
" Q. Mr. Lommori, you realize the fact that the defendant Frank Tranmer or J. Frank Tranmer is being tried for the murder of your sister, do you? A. Yes, sir. * * *
"Q. Was your sister married? A. Yes, sir.
"Q. To whom? A. To Eugene Quilici.
" Q. I will ask you if you were a witness at the coroner’s*148 inquest over the body of your sister, Mrs. Quilici? A. Yes, sir.”
On cross-examination, the witness testified, in part, as follows:
"Mr. Frame (counsel for defendant) —Q. You testified in that preliminary, a short time after the occurrence of the killing of your sister, did you not, Mr. Lommori? A. Yes, sir, a short time afterwards. * * *
"Q. Now, referring to your testimony given at the preliminary hearing between January 12 and January 19, 1911, the same occurring a few days after the occurrence in which your sister was killed, * * * I will ask you to state whether you testified as a witness at and before the coroner’s jury investigation for the death of your sister Maria D. Quilici, the same being held before Justice Dunn in the month of January, 1911, at Winnemucca, Humboldt County, Nevada, about January 9? A. I do not remember.
"Mr. Frame — I suppose it was admitted that it was given there?
"Mr. Woodburn (district attorney) — Yes, sir, it was there. That is correct. * * *
"Q. Did you ever hear, just before the happening of the occurrence in which your sister was killed, of Mr. Quilici having an arrangement to buy the Robinson-Kelley saloon which was situated alongside of. or near the Quilici saloon? A. Yes, sir. * * *
" Q. Were you at the depot in Imlay on the day following the killing of your sister by some parties, about noon, when Sheriff Lamb brought the two men to the depot?”
From the foregoing extracts from the evidence it will be seen that witness Lommori testified that he knew that the defendant was on trial for the murder of his sister Maria D. Quilici, which was committed January 6, 1911, and that he attended the coroner’s inquest over her body at Winnemucca on January 9, three days later, and the preliminary examination which was held a few days thereafter. Dr. Giroux testified to holding the autopsy in Winnemucca, and of giving testimony at the coroner’s
"Well, he said that was a bright trick and he ought to kill me.
"Q. What is that? A. He said that was a bright trick and he ought to kill me.
"Q. Do you remember the exact words? A. No, I don’t know as I can remember the exact words, but something to that effect. ”
At this point in the proceedings the witness, over the objection and exception of defendant, was permitted to read the testimony given by him at the coroner’s inquest:
"Mr. Callahan — After refreshing your memory, can you give the exact language used by the defendant at that time?”
After objection and exception by counsel for defendant, the witness answered:
" I can now after I read that.
"Q. Just give the language used by the defendant in reply to your statement that you had lost your mask. A. I told him I had lost my mask, and he says: 'You are a pretty son of a-. I ought to plug you right here. ’ ”
Professor Jones, in his work on evidence, at section 878, says:
"In some jurisdictions, it is held that a witness may refer to a former affidavit or deposition given by him for the purpose of refreshing his memory. While in other*150 states this is not allowed, as it is held that the practice is in violation of the rule that a memorandum to refresh the memory should have been made at or about the time to which it relates” — citing authorities.
Since the killing was on January 6, and the coroner’s inquest three days later, it would seem that the reason given by Professor Jones for excluding such testimony does not apply in this case; but we will not undertake to determine what the law on this point is, as the two statements are substantially the same, and we are unable to see that any prejudice could have been done appellant by the ruling of the court.
"Mr. Callahan — Q. I will ask you to state, Mr. Urie, if you are not now in the penitentiary of the State of Nevada under sentence of death.”
Upon objection being made, it was sustained, and the jury was directed by the court to disregard the question entirely. Soon after this witness had begun to give his testimony, counsel for appellant, in the presence of the jury, and before the question quoted was asked, addressing the district attorney, said:
"Mr. Callahan — I suppose it is admitted that this witness is now under conviction of a felony and is in the state’s prison?”
There is in our judgment nothing in the preliminary question or suggestion made by counsel for the defendant, "I suppose it is admitted that this witness is now under conviction of a felony and is in the state’s prison?” which sustains the position of counsel for the state in urging, or which would justify this court in saying, that defendant’s counsel had "openedup the subject, and in all probability brought to the attention of the jury the real status of the witness Urie.” For the purpose of raising the objection to the competency of the witness Urie to testify on behalf of the state, it was necessary for counsel for defendant either to request the opposing counsel to
While we will hold that the objection to the competency of the witness Urie is without merit, the objection was anything but one of a frivolous character, as suggested in respondent’s brief on appeal. The question has never before been raised in the courts of this state, and there are but few cases directly in point. A consideration of the following cases where the question has been considered will be sufficient answer to the charge that the objection of counsel for defendant was " frivolous”: People v. Labra, 5 Cal. 183" court="Cal." date_filed="1855-07-01" href="https://app.midpage.ai/document/people-v-labra-5432879?utm_source=webapp" opinion_id="5432879">5 Cal. 183; People v. Newberry, 20 Cal. 440; Ex Parte Stice, 70 Cal. 55, 11 P. 459" court="Cal." date_filed="1886-06-24" href="https://app.midpage.ai/document/ex-parte-stice-5442578?utm_source=webapp" opinion_id="5442578">11 Pac. 459; McGinness v. State, 4 Wyo. 115" court="Wyo." date_filed="1893-01-26" href="https://app.midpage.ai/document/mcginness-v-state-6587331?utm_source=webapp" opinion_id="6587331">4 Wyo. 115, 31 Pac. 978, 53 Pac. 492.
Independent of the question of the competency of Urie as a witness, defendant had the statutory right to show that the witness was under conviction for a felony, for the purpose of affecting his credibility as a witness. This right counsel for the state were unquestionably aware of. The record contains the following statement made by assistant counsel for the state:
"Mr. Woodburn — Now, if your honor please, we have no objection to that question being stricken out, and the jury being instructed to disregard it. It was made in good faith, and we thought we would just show the status of this witness, because it goes to his credibility, and it was done under no desire to prejudice the defendant, and it was first suggested through counsel’s question as to the status of this man as to where he was living at this time, and, if counsel insists, we are satisfied to have the jury instructed that they may disregard the testimony of the witness on that point. ”
It should be borne in mind, in the consideration of this assignment of error, that the defendant Tranmer was already under conviction of murder in the first degree, with sentence of life imprisonment, for the murder of Eugene Quilici, and that from the judgment in that case no appeal had been taken. There was no purpose sought to be accomplished, or which could be accomplished, by the trial of the defendant Tranmer for the murder of Maria Quilici, except to obtain, if possible, a conviction of first-degree murder, with the death penalty imposed. There was, however, no duty imposed upon counsel representing the state to bring before the jury facts clearly incompetent for the purpose of influencing the jury in fixing the penalty which the law authorized it to prescribe. Upon the contrary, counsel for the state owed a duty to defendant not to attempt to offer such evidence. At the time the question objected to was asked, counsel for the state undoubtedly knew what the testimony of the witness Urie would be. They knew that such testimony, in a measure at least, was having the indorsement of the representatives of the state as to its verity, and that Urie’s testimony made him out to be less blamable than the defendant Tranmer; that, if Urie spoke the truth, Tranmer was the instigator of the robbery which led to the murder; that Urie was a reluctant participant, acting under a certain degree of compulsion, and fired none of the shots which resulted in the death of the Quilicis. In view of this testimony, it is not hard to conceive of a fact that might have a greater influence in persuading the jury to impose the death penalty upon Tranmer than the fact that another jury had imposed the death penalty upon Urie, who might under the evidence have been regarded as morally, if not legally, less guilty than Tranmer.
It is only in recent years that a number of states have so changed their criminal codes as to permit the jury in first-degree murder cases to fix the penalty at death or life imprisonment. In but few cases has the question arisen as to whether evidence, not admissible upon the question of the guilt or innocence of the defendant, may nevertheless be offered for the purpose of influencing the jury as to the penalty in their discretion to be imposed. This question was touched upon by the Supreme Court of California in the recent (1915) case of People v. Witt, 148 P. 928" court="Cal." date_filed="1915-04-27" href="https://app.midpage.ai/document/people-v-witt-3309064?utm_source=webapp" opinion_id="3309064">148 Pac. 928. In the opinion in that case, Angellotti, C. J., speaking for the court, said:
"It is not claimed that the offered testimony was relevant or material on the issue as either guilt or degree of crime, but simply that, inasmuch as the jury had the right to assess the punishment in the event of conviction at either death or life imprisonment, appellant was entitled to have admitted for their consideration evidence as to matters not otherwise relevant or material. We are of the opinion that our law does not contemplate any such independent inquiry on a trial for murder, and that the determination of the jury, under the provisions of section 190, Penal Code, as to death or life imprisonment, is necessarily to be based solely on such evidence as is admissible on the issues made by the indictment or information and the plea of the defendant.
See, also, State v. Thorne, 41 Utah, 414" court="Utah" date_filed="1912-06-18" href="https://app.midpage.ai/document/state-v-thorne-8655709?utm_source=webapp" opinion_id="8655709">41 Utah, 414, 126 Pac. 286, Ann. Cas. 1915d, 90.
“First, that Urie, being under conviction of a felony, was disqualified as a witness except in cases where called at his own request and in his own behalf. Second, for the further reason that the record discloses that Urie was jointly indicted and jointly charged with the defendant. * * * ”
It was provided by section 1441 of the Compiled Laws of Nevada (1873) that:
“Persons against whom judgment has been rendered upon a conviction for felony, unless pardoned by the governor, or such judgment has been reversed on appeal, shall not be witnesses.”
This court, in an opinion written by Mr. Chief Justice Beatty, in State v. Foley, 15 Nev. at page 73, 37 Am. Rep. 458, said:
“It may be that the tendency of enlightened opinion and of recent legislation in other states and countries is against the rule which absolutely excludes the testimony of a convict; it may be that it is an unwise and impolitic rule; but it is unquestionably the law of this state. Not only is the common law unaltered by statute in this particular, but in civil practice it is expressly reaffirmed. (Comp. Laws, 1441.) This shows that the legislature approves the policy of the common-law rule, and we cannot hold that it is less essential in criminal than in civil cases; we feel bound, on the contrary, to maintain it as strictly in one class of cases as in the other.”
This opinion was rendered in 1880. It is significant that at the next session of the legislature, in 1881, the section quoted was repealed.
It is provided by section 5419, Revised Laws, that:
“All persons, without exception, otherwise than as specified in this chapter, who, having organs of sense, can perceive, and perceiving can make known their perceptions to others, may be witnesses in any action or*155 proceeding in any court of this state. Facts which, by the common law, would cause the exclusion of witnesses, may still be shown for the purpose of affecting their credibility.”
There is no provision in the chapter prohibiting persons charged with, or convicted of, a crime, from being called as witnesses. The section just quoted is made applicable to criminal as well as civil actions by section 7451, Revised Laws. In the case of Burgess v. Helm, 24 Nev. 242, 51 Pac. 1025, Mr. Justice Bonnifield, in commenting upon section 5419, Revised Laws, supra, said:
“The evident object the legislature had in view in enacting the above provisions was to abrogate the general common-law rule which rendered incompetent, as witnesses, in an action or proceeding, the parties thereto or persons having a direct interest in its results, except, as provided in certain subsequent sections, among which is section 379, which declares ‘that no person shall be allowed to testify, when the other party to the transaction is dead, or when the opposite party to the action or person for whose immediate benefit the action or proceeding is prosecuted or defended is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased persons.’ ”
We do not see how the legislature could have used more significant language. What was the intention of the legislature in making the section in question applicable to criminal cases ? This was the first section in chapter 1 of title 11 (page 405) of Compiled Laws of 1873, and section 1441, supra, was the fifth section of that chapter. When the attention of the legislature was called to section 1441, supra, by the opinion of Mr. Chief Justice Beatty, it was promptly repealed; and, in view of the action of the legislature in repealing it, we must conclude that the legislature meant exactly what it said, that “all persons, without exception,” should be competent witnesses, and that facts which, at common law, would disqualify a witness, might be considered as
“As far as you have gone and read the testimony into the record, there are apparently no inconsistencies or contradictions.”
This remark by the court is assigned as error. The attorney-general concedes that it was error for the court to make the remark, but claims that it was harmless. We have read the testimony of the witness Lom-mori with great care, and are unable to see that there is any substantial conflict between his testimony given on the trial and the testimony given at the previous hearing. This being true, it would seem that the remark of the court was without prejudice. Furthermore, the point on which it was sought to impeach this witness went solely to the question of the identity of the defendant; that is, of connecting him with the crime. To our mind his participation in the crime is clearly shown; there can be no doubt about it. Consequently, it would seem that in any event the remark was harmless. Mr. Chief Justice Talbot, in State v. Mircovich, 35 Nev. at page 490, 130 Pac. at page 766, called attention to our statute, which provides that the court shall disregard technical errors where no substantial rights are denied, and said:
“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 accused.”
The witness Urie, at the time of the trial in the district court, was under sentence of death for the
“Q. I call your attention to last Sunday evening, and ask you to state whether you had a conversation with Mr. Woodburn and myself, here in the county jail. A. Yes, sir; I don’t remember what evening it was.
“Q. Who else was present at the time ? A. Mr. Burke.
“Q. The sheriff? A. The sheriff.
“Q. Any one else? A. Yes, there was a deputy, I guess; I don’t know his name.
“Q. I will ask you to state whether or not at the time you were distinctly informed that there would be no consideration of any kind extended to you for testifying in this case.
“Mr. Frame — I object to the question as incompetent, irrelevant, and immaterial, and for the further reason that it is not proper redirect examination, and that it calls for a conversation, or conversations, that are in no way related to the case.
“The Court — The objection may be overruled.
“A. No, none that I remember.
“Mr. Frame — Note an exception, if your honor please, upon the grounds stated.”
“I did not ask him whether he had received any promises. It is true that inference may be drawn.”
The court must exercise some discretion in ruling upon such objections. He saw the witness upon the stand and
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.
Petition for rehearing denied.