367 P.2d 104 (Nev. 1961), 4417, Wyatt v. State

Docket Nº:4417.
Citation:367 P.2d 104, 77 Nev. 490
Party Name:Thomas D. WYATT, Appellant, v. STATE of Nevada, Respondent.
Case Date:December 18, 1961
Court:Supreme Court of Nevada

Page 104

367 P.2d 104 (Nev. 1961)

77 Nev. 490

Thomas D. WYATT, Appellant,


STATE of Nevada, Respondent.

No. 4417.

Supreme Court of Nevada.

December 18, 1961.

Rehearing Denied Jan. 25, 1962.

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Samuel B. Francovich and Brian L. Hall, Reno, Harry E. Claiborne, Las Vegas, for appellant.

Roger D. Foley, Atty. Gen., William J. Raggio, Dist. Atty., Drake DeLanoy, Eric L. Richards, Deputy Dist. Attys., Washoe County, Reno, for respondent.

McNAMEE, Justice.

Appellant, a licensed physician, was found guilty by jury verdict of attempted abortion. Appeal is from the order denying a new trial.

Five errors are assigned and each is considered separately.

1. Admission of evidence of other abortions performed by appellant.

While appellant concedes that in an attempted abortion trial prior criminal acts of abortion by appellant are properly admissible for the purpose of showing criminal intent, 1 he maintains that the method by which such evidence can be introduced must be the same as that employed in Nester v. State, 75 Nev. 41, 334 P.2d 524, 527, where the trial judge heard the substance of another crime outside the presence of a jury prior to its admission in evidence. This assertion is without merit.

In Nester we stated the general rule that on the trial of a person accused of a crime, proof of a distinct independent offense is inadmissible. We noted, however, certain exceptions to this rule, one of which is that evidence of other crimes is competent to prove the specific crime charged, when it tends to establish intent. Because such evidence manifestly creates a prejudice which may cause injustice to be made to a defendant 'the relevance of evidence which tends to prove a crime other than that charged must be examined with care, even if it fits properly, within one or more of the exceptions. * * * In all such cases as this, then, an intermediate step must be taken between the determination of relevancy by the court and the weighing of the evidence by the jury * * * [to enable

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the trial judge] to balance the prejudicial and distracting impact of the evidence against its probative weight and persuasiveness.'

[77 Nev. 493] Such an intermediate step was taken in the instant case. Outside the presence of the jury the trial judge ascertained the type of evidence to be offered, heard arguments of counsel, and determined that it would be admissible. Even though the trial judge should permit the jury to hear such evidence without first taking the 'intermediate step,' it would be immaterial on review. If he permitted the evidence to remain in the record, it would be presumed that the probative weight of the proffered evidence, in his balanced judgment, outweighed its mere prejudice. The preferable method, however, is for the trial judge to hear this evidence, or ascertain its nature, outside the presence of the jury in order to prevent the loss of time and expense which could be caused by a mistrial or new trial resulting from a later determination that the evidence should not have been received.

2. Failure of the trial court to instruct the jury relative to entrapment.

Appellant contends it was error for the lower court to refuse to give the following proposed instruction:

'You are instructed that if you should find that the defendant attempted to perform the operation as charged in the indictment, nevertheless, if you further find that the intent to commit such act did not originate with the defendant and he was not carrying out his own criminal purpose, but that the act was suggested by another person acting with the purpose of entrapping and causing the arrest of the defendant, then the defendant is not criminally liable for the act so committed, and your verdict should be for the defendant.'

In the case of In re Davidson, 64 Nev. 514, 520, 186 P.2d 354, 357, this court quoted with approval the text from 22 C.J.S. Criminal Law, § 45, which states that the defense of entrapment is not available where the officer or other person acted in good faith 'for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by one who had the requisite criminal intent.'

In re Wright, 69 Nev. 258, 263, 248 P.2d 1080, 1082, [77 Nev. 494] the principal defense was one of entrapment. There we said:

'It is first contended that the record does not show any foundation or basis for such resort to a decoy. This contention we must reject. It is clear from the record that Carpenter's employers believed and had reasonable cause to believe not only that petitioner was a person disposed to commit the offense, but that he had already committed a similar offense on at least one occasion. * * *

'Next it is contended that the offense was committed at the instigation and subject to the persuasion and inducement of Carpenter; that the criminal design originated not with petitioner but with Carpenter himself; * * * We are satisfied from the record, however, that such was not the case. The record discloses that Carpenter merely presented to petitioner the opportunity to commit the offense which opportunity was freely accepted by petitioner. Carpenter's course was simply to state his problem: his need for divorce; his need for urgency; then in effect: 'That's my problem. You tell me what I've got to do and what it will cost.''

See also People v. Raffington, 98 Cal.App.2d 455, 460, 220 P.2d 967, 971, where it is stated: 'Entrapment is available as a defense when the criminal design originates with the officer who, by persuasion or deceit, entices a law-abiding citizen to commit a crime which he would not have committed in the absence of such inducement. * * * There is no evidence that defendant was lured into the attempt to commit a criminal offense by persuasion or inducement. The conversation was between persons who professed to desire the abortion to be performed and defendant, willing to perform upon the payment of his requested

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fee. In such case enticement or entrapment is not available as a defense. * * *'

These cases, however, were not concerned with the question whether a requested instruction on entrapment must...

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