Alsup v. State, 6440
| Decision Date | 13 October 1971 |
| Docket Number | No. 6440,6440 |
| Citation | 87 Nev. 500,489 P.2d 679 |
| Parties | Marion Thomas ALSUP, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Marion Thomas Alsup was convicted by a jury of assault with a deadly weapon. He had orgiinally been charged with attempted murder, mayhem and assault with intent to kill. The conviction arose from a fight with Jack Noble outside a small bar at Battle Mountain. The testimony of several witnesses clearly established that Alsup had verbally and foully abused Noble over an extended period of time in the morning of March 16, 1969 and taunted him to fight. Noble made no response until the bartender asked Alsup to leave. When Alsup stuck his head through the doorway and again challenged Noble, Noble asked the bartender if he 'had taken enough,' and the bartender said, 'Yes.'
Then, Noble followed Alsup outside, the door was closed and no other persons were present when they commenced to fight. Noble testified that shortly after their combat commenced he felt pain in his back and side and noticed that he was very bloody. Alsup had been holding his right hand behind his knee, but Noble did not actually see a knife then or at any other time.
One of the bartenders glancing out the window saw Alsup throw something as Noble started to run away. Later, the same bartender who saw the throwing gesture found a blood-stained knife 130 feet from the place of the fight. The blood could not be identified but a fingerprint on the knife was positively identified as Alsup's.
By way of defense Alsup claimed self-defense and that he had no recollection of cutting up Noble.
The issues on appeal are:
1. Whether the knife was improperly admitted into evidence because it is alleged that the state failed to show beyond a reasonable doubt a link between the knife and the crime.
2. Whether color photographs of the victim's wounds were improperly admitted where there was testimony and demonstration by Noble of his scars and the wounds.
3. Whether the evidence supports the verdict.
1. Alsup objected to the admission of the knife into evidence on the ground that it was not properly connected with the crime. The accumulated testimony of eyewitnesses establishes that Noble suffered wounds from a sharp instrument, that 'something' was thrown by Alsup after the fight, that the knife was found in the area where the thrown object would be, blood was on the knife and also Alsup's fingerprints were on the knife. Evidence of the throwing of the object coupled with the finding of it will support an inference in these circumstances that the accused had possession of the object thrown. When the evidence on the part of the prosecution is circumstantial an implement by means of which it is likely that a crime was committed is admissible in evidence if it has been connected with the defendant. People v. Howard, 10 Cal.App.2d 258, 52 P.2d 283 (1935); People v. McCall, 10 Cal.App.2d 503, 505, 52 P.2d 500 (1935); Stamps v. State, 83 Nev. 230, 428 P.2d 187 (1967).
2. We can find no arguable issue in regard to the admission of the color photographs. They were merely cumulative since Noble exhibited the stitched wounds before the jury, but no blood or gore destroyed their objectivity. Photographic...
To continue reading
Request your trial
-
Anderson v. State
...involving interpretations of the term "possession." See Glispey v. Sheriff, 89 Nev. 221, 510 P.2d 623 (1973); Cf. Alsup v. State, 87 Nev. 500, 489 P.2d 679 (1971) (circumstantial evidence sufficient to connect murder weapon with defendant). Those cases do not require actual or physical poss......
-
Geary v. State
...Lofton v. People, 168 Colo. 131, 450 P.2d 638 (1969); State v. Mays, 7 Ariz.App. 90, 436 P.2d 482 (1968). In Alsup v. State, 87 Nev. 500, 501--502, 489 P.2d 679, 680 (1971), we said: 'When the evidence on the part of the prosecution is circumstantial an implement by menas of which it is lik......
-
Nalls v. State
...at trial. Photographic evidence is generally liberally admitted, so long as it sheds light upon some material inquiry. Alsup v. State, 87 Nev. 500, 489 P.2d 679 (1971); Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968). The fact that appellant did not dispute the seriousness of the wound d......
-
Miller v. Sheriff, Carson City
...Glispy, the magistrate was entitled to conclude that Miller exercised dominion and control over the contraband. See Alsup v. State, 87 Nev. 500, 489 P.2d 679 (1971). The evidence presented meets the degree of proof required for binding a defendant over for trial. See State v. von Brincken, ......