Dalby v. State
| Decision Date | 27 October 1965 |
| Docket Number | No. 4846,4846 |
| Parties | Edward DALBY, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Dorsey & Harrington, Las Vegas, for appellant.
Harvey Dickerson, Atty. Gen., Carson City, Edward G. Marshall, Dist. Atty., Earl Gripentrog and Lois N. Bargmann, Deputy Dist. Atty., Clark County, Las Vegas, for respondent. ZENOFF, District Judge.
This is an appeal from a conviction of robbery of a Las Vegas bar. Three assignments of error are presented and the facts relevant to the particular errors assigned will be presented during the discussion of the respective contentions.
The questions presented are as follows:
1. May a witness not named in the information be permitted to testify at the trial?
2. When the defendant has waived preliminary hearing, is an information defective under NRS 173.080(3) for the failure to file with the information an original affidavit of some credible person verifying the information upon the personal knowledge of the affiant that the offense was committed?
3. Where testimony is received concerning an exhibit which is later stricken, is the testimony concerning the exhibit incompetent because the exhibit has fallen?
1. NRS 173.080(2) provides: 'He [the district attorney] shall endorse thereon [the information] the names of such witnesses as are known to him at the time of filing the same, and shall also endorse upon such information the names of such other witnesses as may become known to him before the trial at such time as the court may, by rule or otherwise, prescribe; but this shall not preclude the calling of witnesses whose names, or the materiality of whose testimony, are first learned by the district attorney upon the trial.'
The witness who was called during the course of the trial and without prior notice to the defendant was police cadet Gary Lang. The testimony from the witness was supposed to provide foundation for the admission of a fingerprint card. Defense counsel insisted that the person, in this in stance Lang, who took the fingerprint card be called to testify. There is no indication as to when the district attorney first learned the name of the prospective witness and the materiality of his prospective testimony.
The rule in Nevada is clear: 'Under statutes such as ours the indorsement of names of witnesses upon an information is largely a matter of discretion with the court; and, in the absence of a showing of abuse, some substantial injury has resulted to the accused, an order permitting such indorsement, even after the trial has commenced, does not constitute of itself reversible error.' State v. Monahan, 50 Nev. 27, 249 P. 566 (1926).
In this instance the court recessed the trial in the latter part of the afternoon and resumed trial the following morning. The name and address of the witness were furnished to defendant's counsel. An opportunity thus was afforded him to interview the witness during the recess. Finally, in the absence of evidence in the record to the contrary, there is a presumption that a witness called to testify whose name is not endorsed on the information is one who was not before known to the district attorney. State v. Ceja, 53 Nev. 272, 298 P. 658, 2 P.2d 124 (1931).
2. Appellant further contends that the trial court did not have jurisdiction to try this case since there was not filed with the information the original affidavit of some credible person verifying the information upon the personal knowledge of the affiant that the offense was committed.
If this is a defect in an information, it is not one which is jurisdictional. NRS 173.080(3) requires this affidavit to be filed when the defendant has not had or waived a preliminary examination. State v. Jernigan, 75 Nev. 389, 343 P.2d 1015 (1959), clarified this statute holding that when a preliminary examination has been waived no affidavit need be filed. NRS 173.080 must be read in connection with NRS 173.140(2) which provides the situation where the affidavit is called for. Since preliminary examination was waived in the instant case, and, since the situation called for by NRS 173.140(2) is not present, no affidavit is...
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Mitchell v. State
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Jones v. State
...(1926). However, in the instant case, the State never endorsed Wraxall, neither before, nor during the trial. In Dalby v. State, 81 Nev. 517, 519, 406 P.2d 916, 917 (1965), this court held that where the name and address of an unendorsed witness was known to the defendant and an opportunity......
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Gonzalas v. Bean
...v. State, 124 Nev.___, ___, 192 P.3d 721, 729 (2008) (citing Mulder v. State, 116 Nev. 1, 12-13, 992 P.2d 845, 852 (2000); Dalby v. State, 81 Nev. 517, 519, 406 P.2d 916, (1965)). “When addressing discovery violations, the district court must be cognizant that defendants have the constituti......
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Redmen v. State, 21729
...7 Absent evidence to the contrary, an unendorsed witness is presumed to have been unknown to the district attorney. Dalby v. State, 81 Nev. 517, 519, 406 P.2d 916, 917 (1965). In the present case, three unendorsed witnesses were called at the penalty hearing. One of these witnesses, Dr. Cla......