State v. WyattState v. Wyatt
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- Before:
- Thompson
Lead
OPINION
By the Court,
Thompson, C. J.:Wyatt was charged with producing an abortion in violation of
The issue presented to us centers upon the meaning to be given
The underlying purpose of a statute requiring corroborative evidence is to prevent false accusations as well as false convictions.2 With this in mind, one accused of producing an abortion should be accorded as much protection at a preliminary hearing as one accused of some other crime on the uncorroborated testimony of an accomplice.
Affirmed.
Collins and Zenoff, JJ., concur.Notes
The quantum of corroborative evidence needed at a preliminary hearing is not before us and we express no opinion in this regard.
Dissenting Opinion
dissenting:
I dissent. The opinion of the majority is a prime example of judicial legislation. The language of
The respondent was charged with the crime of abortion in violation of
In this state it has been clearly established that a preliminary hearing is not a trial. In the case of State v. Holt, 47 Nev. 233, 219 P. 557 (1923), this court said: “A preliminary hearing is not a trial. In the very nature of the situation it could not be. A justice of the peace has no jurisdiction to try one charged with a felony; he can only hold a preliminary hearing and determine if probable cause exists for holding defendant to answer.” In Overton v. State, 78 Nev. 198 at 201, 370 P.2d 677 (1962), referring to preliminary hearings, it was stated: “A preliminary hearing is not a trial. The accused is neither convicted nor acquitted of the crime with which he is charged. The magistrate before whom the examination is held, determines only whether it appears that a public offense has been committed, and whether there is sufficient cause to believe the accused guilty thereof.”
In holding that an abortee’s testimony, at a preliminary hearing, must be corroborated, the district court relied on
The intent of the legislature is clearly expressed in
In support of their position the lower court and the majority of this court draw an analogy between an abortee and an accomplice and rely on Ex parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960); Ex parte Sullivan, 71 Nev. 90, 280 P.2d 965 (1955); and In re Oxley and Mulvaney, 38 Nev. 379, 149 P. 922 (1915).
Those cases in construing
Almost without exception the courts in this country have held that a woman upon whom an abortion has been produced is not an accomplice of the person performing the abortion. People v. Buffum, 256 P.2d 317 (Cal. 1953); State v. Tennyson, 2 N.W.2d 833, 139 A.L.R. 987 (Minn. 1942); People v. Blank, 29 N.E.2d 73 (N.Y. 1940).
This court is probably obligated under the rule of statutory construction and the doctrine of stare decisis to follow Oxley and require that the testimony of an accomplice be corroborated at a preliminary hearing, Snyder v. Garrett, 61 Nev. 85, 115 P.2d 769 (1941); Ex parte Sullivan, supra; Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947). However, neither the rule of statutory construction nor the doctrine of stare decisis compels us to extend the questionable holding of Oxley to include the uncorroborated testimony of an abortee at a preliminary hearing.
At common law the uncorroborated testimony of an accomplice, if it satisfied the trier of facts of the guilt of the defendant beyond a reasonable doubt, was sufficient
When this court, in Oxley, adopted the holding in State v. Smith, 35 So. 42 (Ala. 1903), it committed two errors. It indulged in judicial legislation and it adopted a legal principle which had been erroneously applied.
Now the majority of this court compounds and extends those errors into a new field by requiring that the testimony of an abortee must be corroborated at a preliminary hearing.
In State v. Smith, supra, the Alabama court ruled that the testimony to hold the prisoner must be sufficient to sustain a finding of guilt, stating: “The whole theory of holding accused persons to the grand jury is that the evidence before the examining magistrate or the judge on habeas corpus is sufficient to sustain a finding of guilt by a petit jury when he shall be indicted and brought to the bar of the court.”
The holding in State v. Smith, supra, on its face, appears to be a case of judicial legislation, but whether the rule was correct or not under the statutes of Alabama it should not have been followed in Oxley because our statute required proof only of probable cause to believe the defendants had committed the offense, not proof of guilt beyond a reasonable doubt.
The effect of Oxley and its progeny, in applying an erroneous principle of law, is to require a higher degree of proof for holding a defendant upon a preliminary hearing than was ever intended by the legislature.
I am not alone in questioning the wisdom of this Court’s ruling in Oxley. In the case of Ex parte Schwitalla, 172 P. 617 (Cal.App. 1918), that court said: “We are not prepared to concede, notwithstanding the holding made by the Supreme Court of Nevada in Ex parte Oxley, 38 Nev. 379, 149 P. 992, that the uncorroborated testimony of an accomplice may not be sufficient to establish probable cause. We think that it may be sufficient.
“While a defendant cannot be convicted upon the uncorroborated testimony of an accomplice, the testimony of an accomplice is admissible and is proper to be considered, and we think is sufficient to make it appear that there is a ‘probability’ that a defendant has been guilty of the offense charged against him.”
Unless the expedient of judicial legislation is invoked, it is abundantly clear that, the applicable statutes do not require the testimony of an accomplice or an abortee to be corroborated at a preliminary hearing.
In People v. McRae, 187 P.2d 741 (Cal. 1947), the court said: “In restricting its prohibition to a conviction, section llll3 is in harmony with the principle
The principle of law enunciated in Ex parte Hutchinson, supra, that “In Nevada the writ of habeas corpus will issue to the end that petitioner will not be compelled to undertake the burden of a trial where the evidence before the committing magistrate is legally insufficient to indicate that he is guilty of any offense” is likewise invalid. It erroneously elevates the preliminary hearing to trial status and burdens the magistrate with the responsibility of finding a defendant guilty at that level when the statute only requires proof of probable cause to believe that the defendant has committed the offense charged.
The district court indicated that the abortee’s testimony on direct, cross and redirect examination clearly established probable cause. It was error for that court to require that the abortee’s testimony be corroborated at the preliminary hearing, and I would reverse its decision.
Mowbray, J., concurs in the dissent.SfRS 175.250. “Upon a trial for procuring or attempting to procure an abortion, or aiding or assisting therein, or for inveigling, enticing or taking away any female of previous chaste character, for the purpose of prostitution, or aiding or assisting therein, the defendant shall not be convicted upon the testimony of the woman upon or with whom the offense shall have been committed, unless she is corroborated by other evidence.”
The language of Section 1111 of the California Penal Code is substantially similar to