Fritz v. State

• Decision Date: 08 September 1970
• Docket Number: No. 6125,6125
• Citation: 86 Nev. 655,474 P.2d 377
• Parties: James Arthur FRITZ, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 377

474 P.2d 377

86 Nev. 655

James Arthur FRITZ, Appellant, v. The STATE of Nevada, Respondent.

No. 6125.

Supreme Court of Nevada.

Sept. 8, 1970.

Rehearing Denied Oct. 26, 1970.

Seymour H. Patt, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., and Kathleen M. Wall, Deputy Dist. Atty., Reno, for respondent.

OPINION

BATJER, Justice.

A jury found the appellant guilty of burglary and he was sentenced to a term of six years in prison.

At approximately 5:25 a.m. on the morning of January 16, 1969, a police officer observed an automobile parked on the east side of the Kentucky Fried Chicken building at 880 West Fifth Street in Reno, Nevada. The automobile had its motor running. The officer proceeded to investigate, and saw the appellant inside the building where he appeared to be crawling across the counter towards the cash register. The officer tried the rear door of the building and found it locked. When he had previously checked the doors of the building at approximately 1:00 a.m. they were all locked and secure. At the time the appellant was observed within the building, the night lights were burning and there was no other activity in the area.

Lewis James Brown, manager of the restaurant, testified that he had closed and locked the building the previous night; that the regular business hours for the restaurant were from 11:00 a.m. to 10:00 p.m.; that the appellant had no right or permission to enter the building after it was closed; that the sign light on the building had been turned off; that when he was summoned to the restaurant by the police officers he observed that the lock on the rear door had fresh scratches on it; that a large spoon was out of place on the desk and that the top drawer of the desk was open.

At the close of the State's case the appellant took the stand and admitted being inside the building at the time indicated, but that he was in there looking for employment. He stated that he was not crawling along the counter but was, after discovering that no one was in the building, looking around for job applications to fill out and bring back later. It was upon all of this evidence that the jury found the appellant to be guilty.

The appellant was originally charged by information with burglary, a felony. On January 30, 1969, he waived a preliminary examination and on February 3, 1969, he was brought before the district court for arraignment where he entered a plea of not guilty. On February 14, 1969, the appellant changed his plea to guilty and a presentence investigation was ordered with sentencing set for March 13, 1969. On March 18, 1969, with permission of the court, the appellant again changed his plea to not guilty. At that time the prosecutor received permission to amend the information and to charge the appellant with being an habitual criminal. Court appointed counsel were allowed to withdraw from the case and the appellant retained private counsel.

After the jury verdict was received, the appellant's motion for a new trial was denied, however, at a special hearing the district court judge, pursuant to N.R.S. 207.010(4) dismissed the habitual criminal charge.

The appellant contends that there is insufficient evidence in the record to support a verdict of guilty of the crime of burglary; that N.R.S. 205.065 ¹ is unconstitutional because it forced him to testify in violation of his Fifth Amendment rights under the United States Constitution; and that the district court erred in refusing to allow him to offer certain so-called rehabilitation testimony.

It is the function of the jury and not this court to weigh the evidence. McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970). Furthermore, in Boyle v. State, 86 Nev. 30, 464 P.2d 493 (1970), we said: '* * * (T)he jury is not compelled to accept solely his denial of intent to commit the larceny but rather can perform its duty to evaluate the facts surrounding the incident.'

Here the jury had the right to reject the appellant's explanation that he was inside the building 'looking for a job,' and to conclude that his entry into the establishment was with the intent to commit a felony. We will not disturb this determination by the jury. Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968).

In McNeeley v. State, 81 Nev. 663, 409 P.2d 135 (1965), this court specifically found N.R.S. 250.065 to be constitutional. We have approved the holding of that case in several recent cases. Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966); White v. State, 83 Nev. 292, 429 P.2d 55 (1967); Boyle v. State, supra; McGuire v. State, supra. Cf. United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). The language in White v. State, supra, aptly describes this appellant's position: 'The issue raised by appellant is nothing more than a plaintive request that the court reconsider its prior holdings. We find no satisfactory argument to warrant the same.'

After the appellant had taken the witness stand he was asked by his own counsel about his prior felony convictions. Prior to this questioning defense counsel had...