Brown v. State

• Decision Date: 22 July 1965
• Docket Number: No. 4801,4801
• Citation: 81 Nev. 397,404 P.2d 428
• Parties: George D. BROWN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 428

404 P.2d 428

81 Nev. 397

George D. BROWN, Appellant, v. The STATE of Nevada, Respondent.

No. 4801.

Supreme Court of Nevada.

July 22, 1965.

Rehearing Denied Aug. 17, 1965.

Diehl & Recanzone, Fallon, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, Donald M. Leighton, Dist. Atty., James A. Callahan, Sp. Deputy Dist. Atty., Winnemucca, for respondent.

THOMPSON, Justice.

By indictment Brown was accused of grand larceny for marking and branding a calf on September 2, 1963, owned by Allied Land and Cattle Company, with the intent to steal it. NRS 205.225(2). He was convicted, and appeals. The sufficiency of the evidence to support the guilty verdict is not challenged. However, he does claim that prejudicial errors of law occurred entitling him to another trial. Ten such errors are assigned. The main legal problem below, and here, was, and is, the admissibility of evidence showing that Brown was possessed of other cows and calves not his own when the calf, the subject of the present indictment, was found in his possession. The problem was first presented to the lower court when the prosecutor, during his opening statement to the jury, referred to Brown's possession of such other cattle when apprehended on September 10, 1963. Objection was immediately interposed. The jury was excused, and legal argument presented. The judge ruled that the prosecutor's reference was permissible and that such evidence during trial would be allowed for the limited purposes of proving Brown's intention to steal the Allied calf, and to show that it was not branded by mistake or accident. Such evidence was subsequently presented, and the following story was revealed to the jury.

On September 10, 1963, the sheriff and others went to the Brown ranch near Valmy, Nevada. There they discovered six cows not belonging to Brown, but belonging to six different owners and bearing six different brands. Four of the six cows had a calf each, and three of the calves bore Brown's brand. The Allied Land and Cattle Co. cow had been on the Brown ranch since 1958. There was some confusion regarding its brand. In any event, Brown made no effort to resolve that confusion, and that cow and her calf bearing Brown's brand (subject of this case) were found on the defendant's fenced ranch on September 10, 1963. A. W. T. Jenkins Co. cow was turned out in a field adjacent to Brown's in the fall of 1962 and was not seen again by its owner until September 10, 1963, when she was found on Brown's fenced premises with a calf bearing Brown's brand. A Duncan heifer was turned out and last seen on the open range near Imlay about March 30, 1963, some 70 miles from the Brown ranch. She was found with a calf on the Brown ranch September 10, 1963. A cow and calf belonging to Harry Green were also there. The calf bore Brown's brand. Two other cows, one belonging to Great Western Land and Cattle Co., and the other to Mr. Miller, were also found on the defendant's premises. The ten cattle were separated from a herd of about 200, seized by the sheriff, and held in his custody.

(1) Evidence of offenses other than that for which the accused is on trial is not permissible unless relevant to motive, intent, absence of mistake or accident, a common scheme or plan, or identity of the defendant. State v. McMahon, 17 Nev. 365, 30 P. 1000 (intent--absence of accident); State v. Roberts, 28 Nev. 350, 82 P. 100 (identity); State v. Vertrees, 33 Nev. 509, 112 P. 42 (intent); State v. Cerfoglio, 46 Nev. 332, 205 P. 791, 213 P. 102, 27 A.L.R. 848 (motive--intent); State v. Elges, 69 Nev. 330, 251 P.2d 590 (intent); Nester v. State, 75 Nev. 41, 334 P.2d 524 (identity); Wallace v. State, 77 Nev. 123, 359 P.2d 749 (intent); Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (intent); Fernandez v. State, 81 Nev. ----, 402 P.2d 38 (intent). See also State v. Hall, 54 Nev. 213, 13 P.2d 624. Of course the limited purpose for which such evidence may be considered by the jury must be specifically stated. State v. McFarlin, 41 Nev. 486, 172 P. 371; State v. Monahan, 50 Nev. 27, 249 P. 566. We know that prejudice may occur when a jury is permitted to learn that the accused may have committed other criminal offenses. In such circumstance the danger is ever present that he may be convicted of a crime other than the one for which he is on trial. The duty placed upon the trial court to strike a balance between the prejudicial effect of such evidence on the one hand, and its probative value on the other, is a grave one to be resolved by the exercise of a judicial discretion. Nester v. State, supra; State v. Nystedt, 79 Nev. 24, 377 P.2d 929. Of course the discretion reposed in the trial judge is not unlimited, but an appellate court will respect the lower court's view unless it is manifestly wrong. We do not find manifest error here. The very nature of the crime charged presents apparent difficulties in proof. Those familiar with the cattle business in Nevada know that it is not uncommon for one mistakenly or accidentally to brand a calf belonging to another. An isolated occurrence may, in truth, be as consistent with innocence as with guilt. Thus evidence of the type here offered, particularly the testimony showing that the defendant branded two other calves that were not his, together with his possession of the mothers of those calves, also not his, was probably necessary to prove his intention to steal the Allied calf and to negate an accidental branding of it. In these circumstances we cannot rule that the lower court erred in deciding that the probative value of such evidence overbalanced its prejudicial effect. The limited purpose and use of that evidence was made known to the jury, and we cannot presume that the jurors used it improperly in arriving at their verdict.

(2) The appellant also complains about certain jury instructions dealing with the subject of other offenses. One of them quoted the statutory language of NRS 569.050 which requires one in possession of an estray to report that fact to the State Department of Agriculture within 5 days. The...