Overton v. State
| Decision Date | 13 April 1962 |
| Docket Number | No. 4475,4475 |
| Parties | Samuel Davis OVERTON, Appellant, v. STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Robert Santa Cruz, Las Vegas, for appellant.
Roger D. Foley, Atty. Gen., Carson City, John F. Mendoza, Dist. Atty., Charles L. Garner, Deputy Dist. Atty., Las Vegas, for respondent.
By criminal complaint, Overton, the appellant, was charged with the unlawful possession and control of heroin, a narcotic drug. At the conclusion of a preliminary hearing on December 14, 1960, he was held to answer in the district court. On December 16, 1960, the assistant district attorney, with leave of court, filed an information against Overton pursuant to NRS 173.140.
When first before the district court for arraignment upon the information thus filed, Overton objected to being arraigned, for the reason that the full transcript of the proceedings of the preliminary examination had not been delivered to the clerk of the district court within 10 days following the preliminary hearing, as required by NRS 173.160. The district court continued the arraignment and directed the filing of such transcript within 10 days thereafter. The transcript was filed before the arraignment occurred. At the time of arraignment Overton moved to set aside the information, asserting a lack of jurisdiction in the district court to proceed because of the failure to deliver the full transcript of the proceedings of the preliminary hearing within 10 days after the holding thereof. That motion was denied, whereupon Overton entered a plea of not guilty.
After trial, a jury found Overton guilty. He appeals, claiming that prejudicial errors occurred as follows: (a) At the preliminary hearing, during a recess, when the prosecuting attorney spoke to a witness in the presence of other witnesses, thereby violating NRS 171.440, relating to the exclusion of witnesses who had not been examined; (b) At the preliminary hearing, during a recess, when the prosecuting attorney removed from the courtroom Exhibit 'A,' a balloon in which the capsules of heroin were found, to discuss the exhibit with a witness; (c) In the district court, but before testimony was taken, when the assistant district attorney removed Exhibit 'A' from the custody of the clerk, and discussed it with witnesses to be called; (d) When the district court denied the motion to set aside the information; (e) When the district court, over objection, admitted Exhibit 'A' into evidence; and (f) When the district court denied motions for mistrial, made when evidence of a distinct and separate crime was offered by the State during presentation of its case in chief.
We turn to discuss such claims of error, and the relevant facts bearing upon each.
1. Re prejudicial errors claimed to have occurred during the preliminary examination: The claimed errors in this regard are those mentioned above as assignments of error (a) and (b). A preliminary examination 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. NRS 171.450; 171.455. In the case at bar, the magistrate ordered that the accused, Overton, be held to answer in the district court. The conduct of the prosecuting attorney during recess, between sessions of the preliminary examination, and of which appellant Overton now complains, could not possibly have prejudiced him with respect to a substantial right in the trial subsequently held and, accordingly, no reversal on this ground is warranted. NRS 169.110; cf. State v. District Court, 42 Nev. 218, 174 P. 1023. In any event, by proceeding to trial upon the merits, without raising any objection to the proceedings before the magistrate (other than the objection urged by his motion to set aside the information to be later discussed), Overton waived any irregularities which might have occurred therein. Pinana v. State, 76 Nev. 274, 352 P.2d 824.
2. Re removal by prosecutng attorney from the custody of the court clerk, of an item to be later received as an exhibit in evidence. At the preliminary examination, a balloon in which the capsules of heroin were found, was received in evidence as Exhibit 'A.' All exhibits there received were subsequently delivered to the clerk of the district court, pending trial upon the merits. After the jury had been selected, but before the introduction of any evidence, the prosecuting attorney obtained said balloon from the clerk of court and discussed same with witnesses to be later placed on the stand. With reference to this occurrence, appellant Overton contends that the prosecuting attorney should have obtained leave of court to remove the balloon, and that his failure to do so prejudiced Overton with regard to a substantial right. The nature of such claimed prejudice is not indicated. It is conceded that the balloon was not tampered with, altered, or changed in any respect. This being true, no possible prejudice could have resulted to Overton. NRS 169.110. We find this claim of error to be without merit.
3. Re motion to set aside information: As hereinbefore related, the full transcript of the proceedings of the preliminary examination was not filed with the clerk of the district court within 10 days following the preliminary examination. 1 However, such transcript was filed before the accused was arraigned in the district court. He urges that the failure to strictly comply with the provisions of NRS 173.160 prevented the district court from acquiring jurisdiction to proceed. He cites Dimmers v. Taylor, 289 Mich. 482, 286 N.W. 798, as supporting authority. In that case the stenographic notes of the preliminary examination were not in the file at the time of trial. The trial court granted a motion to quash the information, because the right to have such preliminary transcript available for use at the trial is a substantial right. Furthermore, the trial court discharged the defendant. On review the appellate court held that, under the circumstances there present, the lower court correctly granted the motion to quash the indictment, but that reversible error occurred when it discharged the defendant. It particularly pointed out that the lower court had not lost jurisdiction of the prisoner by reason of the defective information which had been quashed. Accord: In re Elliott, 315 Mich. 662, 24 N.W.2d 528.
In the case before us, the information was filed two days following conclusion of the preliminary examination as permitted by NRS 173.140. However, the lower court, at the request of the appellant, did not proceed with the arraignment until the full transcript of such preliminary examination was in the file and available to the accused. It is evident that there was no prejudice under such circumstances.
The period of 10 days specified in NRS 173.160 is directory merely. The filing of such transcript with the clerk of the district court within a reasonable time, is sufficient. People v. Mullally, 16 Cal.App. 44, 116 P. 88; cf. State v. Polan, 78 Ariz. 253, 278 P.2d 432. Therefore, we find no merit to this claim of error.
4. Re the admission of Exhibit 'A' in evidence: The balloon in which the capsules of heroin were found, was received in evidence as Exhibit 'A.' In objecting to its admission, counsel for Overton urged upon the court that there was not sufficient evidence to establish that Overton was, or had been in possession of the balloon, or that it was his and, further, that the capsules of heroin therein had not been separately identified by the officer who took possession of them, or by the chemist who later tested the substance contained therein. In our view, the trial court correctly received the proposed exhibit as evidence. A detective testified that Overton admitted to him that the balloon was his. Additionally, the arresting officer in describing the arrest of Overton, said: The balloon was picked up within three feet of Overton, and there was no one else in the immediate area. Cf. Terrano v. State, 59 Nev. 247, 91 P.2d 67. Such evidence, if accepted...
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