Wyatt v. State

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

Page 104

367 P.2d 104

77 Nev. 490

Thomas D. WYATT, Appellant, v. STATE of Nevada, Respondent.

No. 4417.

Supreme Court of Nevada.

Dec. 18, 1961.

Rehearing Denied Jan. 25, 1962.

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

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, 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 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 be given in a jury trial.

The attempted abortion of which appellant was convicted occurred on August 11, 1960. The evidence shows that appellant had in his office all the instrumentalities with which abortions are produced. Testimony of witnesses was to the effect that be had performed the following acts of criminal abortion: Three on one Schauwecker, the last being as late as June 1960; three on one Wells, the last in March 1960; and one on a young girl in December 1959. It was disclosed at the trial that appellant had tissue of human placental matter from two separate female individuals wrapped in newspaper in his desk drawer at the time of his arrest on August 11, 1960.

With reference to the present charge, the record shows that Wilma Askew consulted the appellant at his home and clinic on or about August 8, 1960 regarding the pregnancy of her 'sister,' Grace Jose. After a brief discussion appellant said: 'Poor kid, how far along is she? * * * If it is more than two months I won't touch her.' Appellant then made the preliminary arrangements for the operation and set the time therefor. When Wilma Askew commented: 'Well, I thought an abortion was like an operation,' appellant replied: 'No, not the way I do it.'

At the time of the arrest by officer Manin appellant was in his office or treatment room, standing and facing Grace Jose who was lying back down on a table with her legs up in stirrups.

Appellant testified that he had not attempted to commit an abortion on Grace Jose, and denied that he ever committed an abortion on any of the three persons above mentioned, and yet he asserts the defense of entrapment on appeal.

Entrapment is an affirmative defense and one that a defendant must prove. State v. Good, 110 Ohio App. 415, 165 N.E.2d 28. Appellant offered no evidence, whatsoever, which could sustain such a defense. In fact his counsel stated to the court during the trial that appellant was not relying on the defense of entrapment. His only evidence pertaining to the alleged commission of the offense with which he was charged consisted of his own testimony of denial as aforesaid. Although the evidence discloses that the district attorney directed certain persons to go to the appellant for the purpose of requesting him to place himself in a position which would be in violation of a criminal statute, and he does so, this alone does not constitute entrapment. People v. Conrad, 102 App.Div. 566, 92 N.Y.S. 606. It is merely the furnishing of an opportunity for the commission of the crime, as mentioned in the Nevada cases of In re Davidson and In re Wright, supra. Further evidence must be produced to show that the criminal intent resulted from persuasion or inducement. People v. Raffington, supra.

Although it is true that a defendant is entitled to an instruction on his theory of the case as disclosed by the evidence, the court is not required to instruct the jury on some matter of defense which is not supported by any evidence, and particularly with respect to a defense expressly repudiated. State v. Moore, 48 Nev. 405, 233 P. 523; State v. Alsup, 69 Nev. 121, 243 P.2d 256.

In People v. Cummings, 141 Cal.App.2d 193, 201, 296 P.2d 610, 615, where the defendant was convicted of abortion and contended that the trial court committed prejudicial error in refusing to instruct the jury on the subject of entrapment, the court said:

'While it is well settled that a defendant is entitled to instructions based on the theory of his defense, the court may refuse proffered instructions on a theory that is not supported by substantial evidence. * * * Was there substantial evidence of entrapment in this case? A few legal guideposts will assist in answering this question. * * * [Citing People v. Lindsey, 91 Cal.App.2d 914, 205 P.2d 1114] "Where the doing of an act is a crime, regardless of the consent of anyone, the courts...