Fairman v. State, 5183

• Decision Date: 15 June 1967
• Docket Number: No. 5183,5183
• Citation: 429 P.2d 63,83 Nev. 287
• Parties: Earl FAIRMAN, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 63

429 P.2d 63

83 Nev. 287

Earl FAIRMAN, Jr., Appellant, v. The STATE of Nevada, Respondent.

No. 5183.

Supreme Court of Nevada.

June 15, 1967.

Babcock & Sutton, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., and James D. Santini, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

ZENOFF, Justice.

Earl Fairman, Jr., was indicted on March 16, 1966 for the sale of narcotics (Count I) and for possession of narcotics (Count II), both arising out of the same transaction. He was convicted for the sale and acquitted on the count of possession. He appeals from the denial of his motion for new trial on the grounds that the prosecution committed reversible error by questioning him about a prior conviction; and on the further ground that the jury's verdict, finding him guilty of sale but not guilty of possession, was inconsistent and invalid.

1. The first ground of alleged error relates to a prior trial upon the same charges. The trial occurred a week before in another department of the same court, and arose from a different transaction than the one involved here. The jury trial returned a verdict of guilty which was later reversed in Fairman v. State, 83 Nev. ---, 425 P.2d 342 (1967).

During the cross-examination of Fairman in the present trial, he was asked if he had ever been convicted of a felony. When Fairman answered in the negative, the prosecution in rebuttal called the court clerk, who had been in attendance at the previous trial. She testified to the fact of the jury verdict of guilty. The essence of the objection to this assignment of error is that the final judgment had not yet been entered in the previous case.

When an accused offers himself as a witness, he may be examined on whether he has been previously convicted of a felony. NRS 48.130. Proper evidence of the prior conviction, in the event he denies such past history, is the record of a judgment of conviction. 3 Wigmore, Evidence (3rd Ed. 1940), § 980.

A verdict of the jury is not a judgment of the court, nor is it the final determination. Allgood v. State, 78 Nev. 326, 328, 372 P.2d 466 (1962); People v. Marendi, 213 N.Y. 600, 107 N.E. 1058, 1063 (1915). It follows that Fairman's answer of 'No' to the question was the truth, because the entry of judgment on the verdict and sentencing had been postponed past this present trial. He contends now that the prosecution was unable, at the time the question was propounded, to show by competent evidence that his answer was untrue, that no further question on the subject should have been permitted, and, in fact, that the question should not have been asked at all. People v. Marendi, supra.

It is true that without a properly authenticated copy of Fairman's conviction of the week before, no proof could otherwise be made of it. It was error for the prosecution to ask the question because it was unprepared to prove its existence in the event of Fairman's denial. The error was compounded by attempting to introduce the verdict through the testimony of the court clerk who was present when the verdict was returned. When the trial court realized the incompetency of the testimony, it granted defense counsel's motion to strike the testimony and instructed the jury to disregard it--and properly so.

Appellant cites State v. Stago, 82 Ariz. 285, 312 P.2d 160, 161 (1957), as authority that, under these circumstances, the error of allowing Fairman's past history before the jury was inherently prejudicial, thus compelling reversal. In our view, however, State v. Polan, 78 Ariz. 253, 278 P.2d 432, 437 (1954), softens that conclusion considerably and belies the use of that holding as support for so far-reaching a statement.

A close review of the record reflects that even had the error not been committed, the verdict would have been the same. We are satisfied beyond a reasonable doubt that the error committed was harmless. NRS 169.110; Chapman v. State of California; 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Cf. Walker v. Fogliani, 83 Nev. ---, 425 P.2d 794 (1967). Moreover, where counsel has grounds for asking a question, and timely objection is made and sustained, any error in the question is not prejudicial. State v. Swiger, 5 Ohio St.2d 151, 214 N.E.2d 417, 427 (1966).

2. We now direct our attention to the assertion that the verdicts of the jury, not guilty as to possession but guilty as to sale, were inconsistent and therefore invalid. The verdicts were consistent and consonant with our holding in Fairman v. State, supra. In the first Fairman case we held that if the possession was incident to the sale there could be only one conviction--either for sale or possession, but not both. The court so instructed the jury in the present case. The jury followed that instruction when it found the defendant guilty of one crime and not guilty of the other. We perceive no error.

The judgment is affirmed.

COLLINS, J., concurs.

THOMPSON, Chief Justice, (dissenting).

I agree that the prosecutor erred when he asked the defendant whether he had been convicted of a felony. However, I do not share the majority's view that the mistake was harmless. The improper suggestion that the defendant is an ex-felon is per se damaging. Prejudice inheres in that suggestion, and the defendant's right to a fair trial is not adequately protected by the court's admonition to the jury to ignore the suggestion and forget it.

My view was first expressed on this subject in a dissenting opinion in Walker v. State, 78 Nev. 463, 376 P.2d 137 (1962). There, the suggestion was placed before the jury by the prosecutor in his opening statement. Five years later the Walker case came before us once more. Walker v. Fogliani, 83 Nev. ---, 425 P.2d 794 (1967). On that occasion, Mr. Justice Zenoff, the writer of the majority opinion in today's case, shared my view, stating: 'Reference to past criminal history is reversible error.' The...