Mathis v. State
| Decision Date | 04 November 1966 |
| Docket Number | No. 5085,5085 |
| Citation | 82 Nev. 402,419 P.2d 775 |
| Parties | Dale Arden MATHIS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Albert Matteucci, Las Vegas, for appellant.
Harvey Dickerson, Atty. Gen., Carson City, Edward G. Marshall, Dist. Atty., James D. Santini, Deputy Dist. Atty., Las Vegas, for respondent.
Appellant was convicted by a jury of attempted grand larceny, a felony. He appeals from the conviction and the trial court's refusal to grant to new trial. He urges as error the lack of evidence to prove intent; failure to prove an extraneous or hindering cause which impeded the ultimate commission of the crime; failure of the state to endorse on the indictment names of witnesses to be called; and prejudice resulting from evidence admitted of a separate and distinct offense. The errors urged are without merit and we sustain the conviction.
The record discloses that appellant and Sanford Wara inquired at the Conditioned Air Company office, Las Vegas, Nevada, about air conditioning equipment. Shortly after leaving, they were observed by Conditioned Air Company employees looking into the adjoining equipment yard of Air Conditioning, Inc., victim in this case. Later that afternoon both returned to the office of Conditioned Air Company and inquired about the time in the morning it opened for business. A secretary's suspicions were aroused and she called the Las Vegas police who assigned two officers as a stakeout for both equipment yards. About 6:25 a.m. the next morning the two officers observed appellant and Wara drive up to the gate of Air Conditioning, Inc., yard in a rented truck and both got out. After looking around, Wara cut the lock on the gate with boltcutters, while appellant looked on. Neither entered the yard but returned to the truck. The officers lost sight of them for about five minutes, but then observed them inside the yard of an adjoining air conditioning company, loading equipment in the truck. They were later arrested nearby with stolen air conditioning equipment in their possession on the truck. Further examination by the officers revealed that a chain locking the gate of the yard where the equipment was taken had also been cut with a boltcutter.
At the trial witnesses, whose names were not endorsed on the indictment, were called by the state and allowed by the court to testify. The indictment had subscribed on it only the names of witnesses who testified before the grand jury.
During the trial the prosecution offered evidence of a separate and distinct crime, grand larceny of the adjoining air conditioning company from which the equipment was taken. Objection was made to this evidence by appellant who cited Nester v. State of Nevada, 75 Nev. 41, 334 P.2d 524 (1959). The trial judge sustained the objection after a hearing out of the jury's presence. During this hearing the prosecution sought to have clarified what, if anything, the witness could testify to regarding the separate offense. Appellant's counsel made a suggestion as to the evidence but the trial judge stated,
Thereafter evidence of the separate and distinct offense crept in through testimony of several state's witnesses; but no further objection was made by defense counsel, who argues his objection was a continuing one as to all such evidence. Nevertheless he cross-examined the state's witnesses on the separate and distinct offense and during the trial stipulated with the prosecuting attorney that appellant would be tried on the grand larceny charge at a later date. Appellant offered no evidence or witnesses on his own behalf but argued that the state had failed to prove its case. The jury convicted appellant of the crime charged. No instruction was requested or given on the law of separate and distinct offenses, nor was objection made on further instructions requested by appellant.
The early Nevada case, State v. Thompson, 31 Nev. 209, at page 216, 101 P. 557 at page 559 (1909), clearly sets forth the elements of attempt to commit a crime. They are: At page 217, 101 P. at page 560 of that case it is further stated, 'As in any other case where the intent is material, the intent need not be proved by positive or direct evidence, but may be inferred from the conduct of the parties and the other facts and circumstances disclosed by the evidence.' It has not been urged by appellant that he was anything but a principal in the commission of the crime. NRS 195.020 1 defines principals. Appellant clearly fits within that definition. Appellant argues there was no overt act on his part shown from the evidence and that as a matter of law there was insufficient evidence of an extraneous or hindering cause which impeded or hindered the ultimate commission of the crime of larceny.
The overt act is clear. Wara cut the lock with boltcutters. Our law does not require evidence of an extraneous or intervening cause preventing commission of the completed crime. All that must be shown is failure to consummate its commission. State v. Thompson, supra. For a reason known only to appellant and his accomplice, after cutting the lock, they returned to the truck and drove off. A case greatly in point is People v. Walker, 33 Cal.2d 250, 201 P.2d 6 (1948). There a defendant was found guilty of murder in the first degree for killing a police officer in the attempted perpetration of a burglary. The California court said, 201 P.2d at page 10, 'At the time of the murder defendant had already snipped the bolt on the door of the meat market and replaced the lock, and he was scouting the neighborhood to see that the coast was clear; in other words, he was in the process of completing his attempted burglary after commission of a definite overt act.'
Appellant complains it was prejudicial error for the trial court to allow witnesses to testify whose names were not endorsed on the indictment. He cites NRS 173.080 2 and NRS 173.110 3 and contends they are interchangeable. We have not ruled upon this point before but feel it has no merit. The statutes require an information to conform 'as near as may be' to the indictment, but the converse is not required nor are they made expressly interchangeable. We perceive no error.
The last issue, namely admission of evidence of a separate and distinct offense,...
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