Graves v. State

• Citation: 413 P.2d 503,82 Nev. 137
• Decision Date: 19 April 1966
• Docket Number: No. 4951,4951
• Parties: Kenneth Ronald GRAVES, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 503

413 P.2d 503

82 Nev. 137

Kenneth Ronald GRAVES, Appellant, v. The STATE of Nevada, Respondent.

No. 4951.

Supreme Court of Nevada.

April 19, 1966.

Rehearing Denied May 17, 1966.

Harry E. Claiborne, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Washoe County Dist. Atty., Reno, for respondent.

THOMPSON, Justice:

A jury convicted Graves of attempted first degree murder. He was the sole witness in defense. His request for reversal and another trial rests mainly upon the jury instruction quoted below, ¹ commenting upon his testimony. The state acknowledges error and concedes that the instruction offends the prohibition of NRS 175.170 reading: 'In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes or offenses, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness, the credit to be given his testimony being left solely to the jury, under the instructions of the court; provided: 1. That no special instruction shall be given relating exclusively to the testimony of the defendant; and 2. That the giving of such instruction shall constitute reversible error.' We agree with the legislature that the giving of a special instruction relating exclusively to the testimony of a defendant in a criminal case is, per se, prejudicial error. However, our conclusion is reached entirely apart from the legislative expression that the giving of such an instruction 'shall constitute reversible error.' The power to decide that question is lodged with the judicial rather than with the legislative branch of our state government. Nev.Const. art. 3, § 1 ²; Cf. State ex rel. Watson v. Merialdo, 70 Nev. 322, 268 P.2d 922 (1954); McCarthy v. Mobile Cranes, Inc., 199 Cal.App.2d 500, 18 Cal.Rptr. 750 (1962); State ex rel. Kostas v. Johnson, 224 Ind. 540, 69 N.E.2d 592, 168 A.L.R. 1118 (1946). Accordingly, we consider the legislative language to be precatory in character. Cf. Ratliff v. Sadlier, 53 Nev. 292, 299 P. 674 (1931). We do not criticize the 1949 legislature for having so expressed itself, as its enactment was apparently invited by the decisions of this court in State v. Williams, 47 Nev. 279, 220 P. 555 (1923) and State v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948). In each case an instruction similar to the one here challenged (though not as prejudicially strong) was denounced as error, but labeled harmles. In Williams, supra, the court concluded its discussion of the statute as it then existed by stating: 'Must we not conclude that, if the legislature intended such a result (reversible error), it would have expressly provided for the reversal of a judgment where such an instruction is given?' Of course, when Williams (1923) and Fitch (1948) were written the statute did not direct reversal. The rule of harmless error was invoked to save the convictions. In 1949 the legislature responded to the question asked in the Williams opinion by amending the statute to provide for reversal. Since that amendment, this court has mentioned the statute only once. In Scott v. State, 72 Nev. 89, 295 P.2d 391 (1956), it was held not to be error to refuse a somewhat similar instruction because of the statutory prohibition. The implication of State v. Williams, supra, and State v. Fitch, supra, that the legislature is empowered to decree what shall constitute reversible error in a criminal case is now expressly repudiated. As before noted, the legislative expression in that regard is constitutionally impermissible. Further, we expressly overrule those cases insofar as they invoke the rule of harmless error (NRS 169.110) ³ to overcome a violation of NRS 175.170 as we believe that prejudice is built into the prohibited instruction.

The legislative prohibition found in NRS 175.170 rests, we think, upon the constitutional command that judges shall not charge juries 'in respect to matters of fact, but may state the testimony and declare the law.' Nev.Const. art. 6, § 12. The thrust of the constitutional mandate is to preclude comment on the evidence by the judge and includes within its scope the matter of the credibility of witnesses. People v. Boren, 130 Cal. 210, 72 P. 899 (1903). Matters of fact, including the credibility of witnesses, are for jury resolution. For this reason, it is permissible to instruct generally that the jury is the sole judge of the credibility of all witnesses, but impermissible to single out the testimony of one and comment upon its quality and character.

The challenged instruction we are here considering offends not only our Constitution, art. 6, § 12, and statute NRS 175.170, but our sense of justice as well. No one would suggest that a judge should be allowed to instruct the jury that a defendant in a criminal case, who has testified on his own behalf, is a liar and not to be believed. It seems to us that an instruction carrying similr disparaging implications is almost as offensive. Here the jury was charged, inter alia, to 'consider his relation and situation under which he gives his testimony, the consequence to him relating from the result of this trial, and all the inducements and temptations which would ordinarily influence a person in his situation,' in deciding the credit to be given the defendant's version of the incident in question. Such language comes close to an admonition that the defendant is not worthy of belief. It is, of course, permissible for the jury to reach that conclusion by itself. It is not permissible for the court to encourage that result by instruction. In this case, the prosecutor emphasized the instruction in his summation to the jury ⁴ thereby adding to the damage already accomplished. For the reasons expressed, we must reverse and remand for a new trial. The failure of defense counsel to object to the instruction is immaterial. NRS 175.515; Harvey v. State, 78 Nev. 417, 375 P.2d 225 (1962).

Another assigned error has merit. We turn to discuss it in order to preclude recurrence when this case is tried anew. The defendant was charged with having committed the crime of attempted first degree murder, which requires proof of a specific intent to kill. ⁵ People v. Snyder, 15 Cal.2d 706, 104 P.2d 639 (1940). The jury was instructed on general intent and specific intent. ⁶ The general intent instruction should not have been given. The intent to kill must be proved by evidence and the inferences reasonably deducible therefrom and it may not be based upon a presumption. People v. Snyder, supra; People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 98 A.L.R. 913 (1935); People v. Mize, 80 Cal. 41, 22 P. 80 (1889). A general intent instruction is permissible in a murder prosecution where malice and intent are presumed from the unlawful killing. The burden is shifted then to the defendant to establish mitigating circumstances or justification. That instruction is also appropriate when the offense charged does not require proof of specific intent. However, it may not be given when the defendant is charged with attempted murder. A homicide was not accomplished and a foundation does not, therefore, exist upon which to presume that...