George v. State, 6898

• Decision Date: 06 February 1973
• Docket Number: No. 6898,6898
• Citation: 505 P.2d 1217,89 Nev. 47
• Parties: Everette Leonard GEORGE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1217

505 P.2d 1217

89 Nev. 47

Everette Leonard GEORGE, Appellant, v. The STATE of Nevada, Respondent.

No. 6898.

Supreme Court of Nevada.

Feb. 6, 1973.

[89 Nev. 48] Gary A. Sheerin, State Public Defender, and Richard Bennett, Deputy Public Defender, Carson City, for appellant.

Robert List, Atty. Gen., Carson City, Merlyn H. Hoyt, Dist. Atty., Ely, for respondent.

OPINION

MOWBRAY, Justice:

Everette L. George was tried to a jury and convicted of attempted murder and of being an ex-felon in possession of a firearm capable of being concealed upon his person.

He seeks reversal of his judgment of conviction upon the sole ground that the trial judge committed reversible error in granting the State's motion for a one-week continuance of his trial date. The case was scheduled for trial on February 1, 1972. On that date the jury was empaneled, and all witnesses were present except one out-of-state witness from Oklahoma, who was unable to appear. The prosecutor so advised the trial judge and moved for a continuance. In his oral motion for the continuance, the prosecutor stated that he had learned one hour before the trial that the witness, who had planned to travel by air from Oklahoma to Nevada, was unable to do so because inclement weather had closed down the airport in Oklahoma. The trial judge continued the trial until February 7, 1972, one week later. On that date, and just prior to trial, George, through his trial counsel, ¹ filed a petition for habeas, seeking his release on the ground that the prosecutor had failed to comply with District Court Rule 21 in presenting his motion for continuance. ² The trial judge denied the habeas petition, and the case went to trial. George was found guilty as charged.

The prosecutor claims that he did not have sufficient time to comply with the affidavit requirements of Rule 21. However, as counsel for appellant urges on appeal, the prosecutor needed only to be sworn and orally testify to the factual matters that would have been stated in affidavit form were time available to prepare an affidavit as required by the rule. Bustos v. Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971). This the prosecutor did not do, and he erred in failing to do so. However, George may not be heard to complain, inasmuch as he did not appeal from the order below denying habeas. ³ Rather, George was willing to go to trial, and he did so, on February 7, 1972, and he thus waived any procedural defects in the motion and order extending the trial date. Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966); Stockton v. Sheriff, 87 Nev. 94, 482 P.2d 285 (1971). Appellant's judgment of conviction is affirmed.

THOMPSON, C.J., and BATJER, J., concur.

ZENOFF, Justice (concurring):

I concur. But further, I do not believe appellant has been deprived of his right to a speedy trial in the constitutional sense. Rather, absent a showing of prejudice caused by the one-week delay, this would be a case of no more than harmless error if that issue had been raised.

GUNDERSON, Justice (concurring):

Seemingly, absent waiver of the error, Justice Mowbray would void appellant's felony convictions because the prosecutor 'erred' in failing to be sworn when asking a continuance. Like Justice Zenoff, I cannot agree that without a 'waiver' appellant should go free because of the prosecutor's unintentional, nonprejudicial, technical 'error.' Also, Justice Mowbray suggests one hour is insufficient time to comply with the provisions of DCR 21. I hold a higher view of the prosecutor's capacity.

Obviously, the fundamental message of the instant case could be conveyed with greater clarity, reduced printing cost, and less confusing to the bench and Bar, by affirming appellant's convictions in a brief 'per curiam' opinion predicated on Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966). ¹ In such a case, so far as I can perceive, a protracted 'authored' opinion serves no public purpose.

1 Counsel for appellant was not his counsel in the lower court.

2 District Court Rule 21. Motions for continuance; contents, service of affidavits; counter-affidavits; argument.

'1. All motions for the continuance of causes shall be made on affidavit.

'2. When a motion for the continuance of a cause is made on the ground of absence of witnesses, the affidavit shall state:

'(a) The names of the absent witnesses and their present residences, if known.

'(b) What diligence has been used to procure their attendance or their depositions, and the causes of a failure to procure the same.

'(c) What the affiant has been informed and believes will be the testimony of each of such absent witnesses, and whether or not the same facts can be proven by other witnesses than parties to the suit whose attendance or depositions might have been...