28 Nev. 395 | Nev. | 1905
By the Court,
Jointly with three others, Fred Roberts, J. P. Sevener, and T. F. Gorman, this defendant was convicted of murder in the
It is said that the evidence is insufficient to justify the verdict of murder in the first degree because the shooting was not done until about two minutes after the robbery. It occurred as part of a continuous assault, lasting from the robbery to the shooting, and apparently was done for the purpose of preventing detection. The conrt properly instructed the jury that under the statute all murder committed in the perpetration of robbery is of the first degree. If there had been no robbery, there was sufficient time for premeditation' to justify the verdict. (State v. Gray, 19 Nev. 218; State v. Lopez, 15 Nev. 407; State v. Millain, 3 Nev. 409; State v. Ah Mook, 12 Nev. 369.)
It is claimed that one of the jurors, A. C. Helmold, was incompetent by reason of having formed and expressed an unqualified opinion in regard to the guilt or innocence of the accused. He stated on his voir dire that he had heard the ease discussed and what purported to be the facts, that he had not discussed it himself and had not talked with the witnesses regarding it, that from rumor and reading the newspapers he had formed an opinion regarding the guilt or innocence of the defendant, that his opinion was not unqualified, and that it would require evidence to change it. After he had been challenged by the defendant, the court gave him the following examination: "Q. Mr. Helmold, from what source did you get your information? A. Why, through the papers and through hearing talk generally. Q. Do I understand you to say you have not discussed the ease yourself? A. I have not; no, sir. Q. And do I understand that the opinion you have formed is mot a fixed, settled, positive opinion? A. It is not. Q. Has any one purported or attempted to detail to you what evidence was in this case? A. No, sir. Q. Have you ever
The condition of the juror’s mind should be determined from the whole of his examination, and doubts should be resolved in favor of the accused, as in other matters, to the end that he may be tried by twelve fair and unbiased men. (State v. Buralli, 27 Nev. 41, 71 Pac. 532.) Considering all the juror said, it is apparent that from reading the papers and talking with others, who are not shown to have had any direct knowledge of the facts or any information acquired from sources other than newspapers, he had formed an opinion regarding defendant’s guilt or innocence such as any one might have acquired who read the news usually published regarding such crimes. In this era of education, intelligence, and diffusion of knowledge, when the telegraph and cable flash information from the most distant parts of the earth in a few seconds, when, an army of men are employed in gathering and reporting the important happenings of the world, and improved printing presses, invented and operated by ingenious minds and cunning hands, are publishing millions of papers daily, the man who does not read and think and form opinions regarding such crimes as murders committed in his locality is better fitted to have lived in the Dark Ages than to serve on juries in the twentieth century. Still, in order to be a good juror, any opinion he may have must be a qualified one, and he must conscientiously feel that he can discard it in arriving at a verdict, and realize that under our system of jurisprudence persons charged with crime are not to be prejudged or convicted upon newspaper reports or hearsay, or found guilty by anything excepting evidence introduced in court under the sanctity of an oath or in conformity to legal practice. Every one, however humble or
Exception was taken to the admission of the dying declarations of the deceased, Jack Welsh. The evidence showing their admissibility appears to have been quite as strong as that on the trial of the three defendants indicted with this one, and for the reasons stated in the opinion in their ease the declarations were properly admitted against Williams.
The written dying statement was in narrative form, and it is further objected here that the questions were not included in the writing. It is sufficient to say that they were proven verbally on the trial, and the written declaration was complete without them.
In his opening statement to the jury, the attorney acting for the prosecution said: "Now, there may be, and probably will be, another feature of this case introduced on the part of the state, and it will be evidence to show that this defendant was duly convicted in .Humboldt County, in conjunction
The purpose of an opening statement is to relate the facts that will be offered in evidence, so that the court and jury may better and more readily understand the testimony when it is introduced. It behooves all attorneys, but is especially incumbent on those representing the state, to limit their opening remarks to the facts they in good faith expect to prove. It was improper to detail the particulars of a confession, or to state that one had been made, and thereby bring to the attention of the jury matters prejudicial to the defendant, unless or until it was the intention to prove them. When the attorney for the state said they might or might not offer proof of the confession, it was in order for defendant’s counsel to object, and for the court, on its own motion, to strike out and restrain any allusion to it until the prosecution gave direct assurance that they intended to prove it. (Thompson on Trials, 958.) An attorney who is prosecuting may be excused for stating facts which he expects and
No exception was taken to this objectionable detail of a confession at the time it was made. (State v. McMahon, 17 Nev. 376, 30 Pac. 1000; numerous cases cited in the note in People v. Fielding, 46 L. R. A. 642.) No evidence was offered to sustain these statements made by the attorney after he had brought them to the attention of the jury, and yet he ought to have been well aware that no fact, and especially one so vital to the defendant, should be stated unless it was his intention to support it by evidence. It was his duty to seek conviction only on facts proved or earnestly sought to be presented by proper evidence, and not by reference to any others in his opening statement or in the presence of the jury. The use of every fair and honorable means is commendable in the effort to win cases, but in the heat and anxiety of trials even eminent counsel have too often so far forgotten their duty to themselves, to a worthy profession, and to the court as to seek to prejudice or influence juries by bringing to their attention facts which they are well aware could not be proven or presented under proper practice and the ordinary rules of evidence. Every high-minded attorney should scorn and rise above such petty and reprehensible methods. Closing an eloquent dissertation regarding the impropriety of statements made by counsel which were not supported by the evidence, the Supreme Court of Georgia said: "But let nothing tempt them to pervert the testimony or surreptitiously array before the jury facts which, whether true or not, have not been proven.” (Berry v. State, 10 Ga. 523.)
"The right of discussing the merits of the cause, both as to the law and the facts, is unabridged. The range in discussion is wide. He may be heard in argument upon every question of law. In his address to the jury it is his privilege to descant upon the facts proved or admitted in the pleadings; to arraign the conduct of the parties; to impugn,
" The profession of the law is instituted for the administration of justice. The duties of the bench and bar differ in kind, not in purpose. The duty of both alike is to establish the truth and to apply the law to it. It is essential to the proper administration of justice, frail and uncertain at best, that all that can be said for each party, in the determination of fact and law, should be heard. Forensic strife is but the method, and a mighty one, to ascertain the truth, and the law governing the truth. It is the duty of counsel to make the most of the ease which his client is able to give him; but counsel is out of his duty and the right, and outside of the principal object of his profession, when he travels out of his client’s
We approve th'e language of the Supreme Court of California in People v. Lee Chuck, 78 Cal. 328, 20 Pac. 723; "We have been called upon many times to caution, sometimes to rebuke, prosecuting officers for the over-zealous performance of their duties. They seem tó forget that it is their sworn duty to see that the defendant has a fair and impartial trial, and that he be not convicted except by competent and legitimate evidence. Equally with the court, the district attorney, as the representative of law and justice, should be fair and impartial. He should remember that it is not his sole duty to convict, and that to use his official position to obtain a verdict by illegitimate and unfair means is to bring his office and the courts into distrust. We make due allowance for the zeal which is the natural result of such a legal battle as this, and for the desire of every lawyer to win his case; but these should be overcome by the conscientious desire of a sworn officer of the court to do his duty, and not go beyond it.”
In Coleman v. State, 111 Ind. 563, 13 N. E. 100, it was held that where the prosecuting attorney, in his opening statement, is guilty of misconduct prejudicial to the substantial rights of defendant, the latter, in order to avail himself of the error, must move to set aside the submission and discharge the jury. At the close of the testimony for the prose
Counsel for the defendant did not avail themselves of the privilege of securing the confession and offering it in evidence, subject to the inspection of the court, and until it was presented and could be examined, and its contents ascertained, the refusal to make an order for its admission was quite proper. If the contention of counsel were correct, and if, as claimed, it were error for the court to refuse to order the confession introduced in evidence under these circumstances and without knowing its contents, it may still be said that there is no copy of it in the record, and nothing indicating that it was different from or more favorable to the defendant than what had been stated by the attorney for the state, or that it contained ■ anything beneficial to the accused, or that its exclusion could have injured him in any degree.
During the closing argument of the attorney for the state, while he was making his remarks in answer to the argument of counsel for defendant in relation to the failure of the state to produce- the alleged confession of the defendant, the following occurred: "Mr. Pike: The defendant is here. He could have taken the stand. If the statement is good reduced to writing, why isn’t it good when given from the stand? Mr. Packard: If your honor please, we object to the statement of counsel in regard to the defendant not taking the stand. The statute says it shall not be used against him. Mr. Pike: The statute also says, may it please the court and gentlemen of the jury, that a self-serving declaration has no value and
We are cited to numerous decisions reversing'cases because the prosecuting attorney had commented upon the failure of the accused to take the stand. In several states, statutes different from ours provide that no comment shall be made in that regard, and in a number of these and in some states without such a provision, but with one more like that in force here, reference by the prosecuting attorney to the defendant’s omission to testify has been deemed reversible error. In State v. Harrington, 12 Nev. 129, this court, following the language of the opinion in People v. McGungill, 41 Cal. 430, said: "If he does not'choose to avail himself of the statutory privilege, unfavorable inferences cannot be drawn to his prejudice from that circumstance.” And, quoting Judge Cooley: "What we intend to affirm is that the
In Wilson v. U. S., 149 U. S. 68, 13 Sup. Ct. 765, 37 L. Ed. 650, it was held that the refusal of the court to condemn the reference of the district attorney and to prohibit any subsequent reference to the failure of the defendant to appear as a witness tended to his prejudice before the jury, and that this effect should be corrected by a new trial. Other cases holding directly that it was error for the state’s attorney to comment on the failure of the accused to testify are cited in defendant’s brief. The jury were properly instructed that the defendant was under no obligation to testify, that the statute expressly declares that his neglect to take the stand shall not create any presumption of guilt against him, and that they should decide the ease with reference alone to the evidence actually introduced before them, and without reference to what might or might not have been proved if other persons had testified. The decisions are not uniform, but a number hold that comment by the prosecuting attorney on the failure of the accused to testify is error that cannot be cured by the instructions of the court. There is a review of cases in State v. Chisnell, 36 W. Va. 667, 15 S. E. 412, and those in Ohio and Indiana adhering to this rule are there disapproved. It was said that, where the court corrects the error by excluding the comment and admonishing the jury to disregard it, the authorities fairly sustain the proposition that it will not be ground for setting the verdict aside.
It will be noticed that the district judge sustained' the alleged objectionable remarks only upon the ground that they were in answer to what the defendant’s attorney had said in his argument, something that does not appear in the record, but which must be presumed to have justified a reply. (Hoffman v. State, 65 Wis. 46, 26 N. W. 110; State v. Buralli, 27 Nev. 41, 71 Pac. 532.) The text and citations at section 960 of Thompson on Trials are to the effect that an objection by
The cases do not generally go so far, even under enactments more stringent than ours. In Ohio, under a statute providing that the defendant’s "neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, nor any comment upon such neglect or refusal,” it appeared "that on the trial of the case in the court below, after the close of the evidence, and while the counsel for the state was arguing the case to the jury, and commenting oh what he claimed to have been established as matter of fact, the prisoner interrupted him by speaking out and asserting the fact to be otherwise. Whereupon the counsel turned to him and said in the hearing of the jury: 'Mr. Calkins, you had an opportunity to testify in this case, and did not do so.’” The retort, having been provoked, was held not to be error. (Calkins v. State, 18 Ohio St. 372, 98 Am. Dec. 121.)
There is another reason why the comments of the attorney for the state are not ground for reversal. If they were admittedly improper, the case ought not to be remanded on errors and technicalities which could not have injured the defendant. He was recognized on the fatal night by Townsend, Waldman, and the deceased at the time he and the others indicted with him robbed them. He was traced with the others by the Mexican°coins taken from Townsend. The evidence, direct and circumstantial, showing their guilt, was clear, conclusive, and uncontradicted. His only witness, a
In Wilson v. U. S., 149 U. S. 70, 13 Sup. Ct. 768, 37 L. Ed. 650, the supreme court, quoting from the decision in Austin v. People, 102 Ill. 264, said: "We do not see how this statute can be completely enforced unless it be adopted as a rule of practice that such improper and forbidden reference by counsel for the prosecution shall be regarded good ground for a new trial in all cases where the proofs of guilt are not so clear and conclusive that the court can say affirmatively the accused could not have been harmed from that cause.” The criminal code of Illinois provided thatv the "neglect of the defendant to testify should not create any presumption against him, nor should the court permit any reference or comment to be made to' or upon such neglect.”
The difference in our statute leaves room for a distinction, and for the exception we have noted in regard to remarks in reply to statements made by the defendant'or his attorney. In State v. Ahern, 54 Minn. 197, 55 N. W. 960, the court stated: " The county attorney commented upon the fact that the defendant had not testified in his own behalf. This is admitted on the part of the state to have been error. It was a violation of an express provision of the statute passed for the protection of defendants in criminal cases. But it was harmless in this case, from the fact that the evidence so con-
In a recent case, People v. McRoberts (Cal.) 81 Pac. 735, certain statements of the district attorney were held to be a gross and reprehensible violation of duty, but the court said: "The question remains, should the judgment be set aside for this misconduct? The homicide was admitted, and the evidence was such as to make it reasonably certain that the jury was not misled by the misconduct of the district attorney to return a verdict which they otherwise would not have found.” And again, in Patterson v. Hawley, 33 Neb. 445, 50 N. W. 326: "All appeals to the jury upon matters outside of the case tend to defeat the true administration of justice, and any statement of an alleged fact outside of the evidence prejudicial to one of the parties may be sufficient to cause a reversal of the judgment. A court of justice does not condemn unheard, nor upon ex parte statements of opposing counsel, and it will not permit one of its officers to abuse his position by such unauthorized statements. We are satisfied, however, that the verdict in this case is the only one that the jury should have returned under the evidence, and the error will be disregarded.” (State v. Shawn, 40 W. Va. 11, 20 S. E. 873, and eases cited; also note in People v. Fielding, 46 L. R. A. 672; State v. Zumbunson, 86 Mo. 111; Thompson on Trials, 960.)
The judgment and order are affirmed, and the district court will fix a time for having its sentence of death carried into effect.