334 P.2d 524 (Nev. 1959), 4083, Nester v. State

Docket Nº:4083.
Citation:334 P.2d 524, 75 Nev. 41
Party Name:Charles Edward NESTER, Appellant, v. STATE of Nevada, Respondent.
Case Date:January 20, 1959
Court:Supreme Court of Nevada
 
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Page 524

334 P.2d 524 (Nev. 1959)

75 Nev. 41

Charles Edward NESTER, Appellant,

v.

STATE of Nevada, Respondent.

No. 4083.

Supreme Court of Nevada.

January 20, 1959.

Rehearing Denied Feb. 16, 1959.

Page 525

John F. Mendoza, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., George M. Dickerson, Dist. Atty., Clark County, Las Vegas, for respondent.

McNAMEE, Justice.

Appellant was convicted of the rape of Rachel Cruz. Appeal is taken from the judgment and from the order denying his motion for a new trial.

The chief assignment of error as grounds for reversal involves evidence of a separate crime committed on the person of Edna Weldon.

In North Las Vegas, on August 25, 1956, shortly after 1 A. M. Rachel Cruz, who had gone to bed, sensed some one in her bedroom. She rolled over on her left side; a man jumped on top of her saying, 'never mind who it is,' and then threw some rags over her face so she wouldn't be able to see him. She struggled, screamed, bit the inside of his little or ring finger, breaking the skin thereof. She was struck in the face, and finally quit struggling when her assailant said, 'shut up or I'll knock you out.' When she pushed the rags from her face he slid down burying his head against her shoulder. In this position he was able to complete forcibly the act of sexual intercourse without removing any of her garments (she was wearing a nightgown and 'panties') and without removing any of his clothing. She was able to see the rear portion of his head, feel his hair, which was fine, and determine that he was colored.

After accomplishing the act, the assailant picked up his light weight shoe or slipper of 'awfully soft texture' [75 Nev. 44] and ran out of the house through the back door. The victim tried to turn on the lights and was unsuccessful, because the fuses in the fuse box beside the back door had been unscrewed to preclude contact, after she had retired for the night.

Footprints from a house-slipper type of shoe led from the back door of the Cruz house 300 yards to a house occupied by appellant, who, when confronted there by police about an hour and a half after the rape, was bearing a weeping wound on the inside of his left hand's ring finger, and a weeping scratch or abrasion at the quick of the fingernail of said finger. He was taken to the Cruz home, where Mrs. Cruz identified him as her assailant by his voice, his color, as well as by his build, stature, and hair.

The doctor's examination of Mrs. Cruz at the hospital on the same day disclosed numerous contusions on her face, arms, upper chest, right thigh, and a tenderness of the abdomen. A vaginal smear taken from deep penetration indicated presence of the sperm from sexual intercourse.

One Barbara Jean Williams testified that during September, 1956, in the presence of appellant's ex-wife, appellant admitted he had committed the North Las Vegas rape.

On February 16, 1957, at about 7:30 P.M. and at a time appellant was not in custody, one Edna Weldon left her apartment at 4779 East Owens Street, North Las Vegas, to get into her automobile. She occupied Apartment B at said address. Appellant and his wife about five months before had occupied Apartment G of the same address, which was about 100 feet

Page 526

from Apartment B. As she left the apartment, the light immediately outside her door, as well as the flood light on a pole in the courtyard against which there was a ladder, were both out, and the area was in darkness. After she entered her car and drove down the street one block, a man rose up out of the back seat and put his hands on her shoulders. He was wearing a sweater and possibly gloves which concealed his face and hands. He told her to keep driving and she was directed to stop on a side road. He climbed [75 Nev. 45] over into the front seat where a struggle ensued. He then told her to 'shut up or I'll knock you cold.' Without any attempt at caressing her or removing any of his or her garments, he attempted several times to enter her vagina with his penis, but she was too small for such penetration. He then forcibly inserted his penis into her rectum. While he was holding her down he lost his balance and his right hand protruded from the sweater sleeve and fell against the dashboard of her car leaving a palm print, and she observed his hand to be that of a colored man. He told her he lived in the neighborhood and had been watching her for a long time. After he left her, she returned to her apartment, the police arrived, and the two lights were twisted into their sockets and upon contact illuminated the area. The palm print taken from the dashboard of Mrs. Weldon's vehicle was found to be identical with that of appellant's. Later Mrs. Weldon identified her assailant by the sound of his voice but made no physical identification of him.

Appellant, testifying in his own behalf, stated that he was at home in bed with his wife at the time of the rape of Rachel Cruz, which testimony his wife corroborated. He testified that the injuries to his finger happened at work several hours before the rape, while he was lifting wooden crates, around one of which was a cut metal band, and this was corroborated in part by a co-worker who witnessed the accident but did not see the injured finger. Appellant's wife testified her husband complained of an injured finger when she met him the evening before the rape, but she didn't see the finger. Appellant denied making any admission to Barbara Williams that he was involved in a North Las Vegas rape, and this testimony was corroborated by his ex-wife. With respect to the incident of February 16, 1957, he stated that on said day he drove his wife's car on U. S. Highway 91, through Yermo, California, to the home of his former sister-in-law in Los Angeles, California, and that he was present in Los Angeles at the time of the attack on Mrs. Weldon. The sister-in-law corroborated his presence in Los Angeles at that time, but the officer in charge of the Yermo checking station through which every vehicle [75 Nev. 46] entering California on U. S. Highway 91 must stop and be recorded, testified on rebuttal there was no record of that particular car on that date passing through said station. To account for his palm print being on the dashboard of Mrs. Weldon's car, appellant contended that he worked at a service station near Mrs. Weldon's residence and dusted the inside of cars. Mrs. Weldon testified, however, that her car was serviced elsewhere.

The other evidence in the record does not affect materially the court's conclusions.

Appellant does not dispute the fact that Rachel Cruz was feloniously raped in Clark County, on August 25, 1956. The conflicting evidence relates solely to the identity of her assailant. The information charges the defendant with being the guilty person and evidence supporting this charge was corroborated by evidence tending to show him as the assailant in the felonious attack upon Edna Weldon some six months later. This corroborating evidence was met with timely objections.

Did the trial court err in admitting evidence purporting to show that appellant committed this other independent crime?

It is a rule of criminal evidence that, on the trial of a person accused of crime, proof of a distinct independent offense is inadmissible.

Page 527

As exceptions to this general rule, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with commission of the crime on trial.

Although Nevada recognizes the general rule and said exceptions (State v. McFarlin, 41 Nev. 486, 494, 172 P. 371, 373), the fact that it is much easier for a jury to believe the defendant guilty of the crime charged when it is known or suspected that he has committed a separate and distinct crime, shows the danger of allowing evidence of the other crime.

[75 Nev. 47] 'Such evidence compels the defendant to meet...

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