Polito v. State
Decision Date | 22 April 1955 |
Docket Number | No. 3828,3828 |
Citation | 71 Nev. 135,282 P.2d 801 |
Parties | Charles Dominic POLITO, Appellant, v. The STATE of Nevada, Respondent. |
Court | Nevada Supreme Court |
Gladys Towles Root, Los Angeles, Cal., Ralli, Rudiak & Horsey, Las Vegas, for appellant.
W. T. Mathews, Atty. Gen., Roger D. Foley, Dist. Atty., Gordon L. Hawkins, Deputy Dist. Atty., Las Vegas, for respondent.
This is an appeal from judgment of conviction of the appellant upon a charge of committing a lewd and lascivious act upon the body of a child of the age of ten years.
The record presents a state of facts which would subserve no worthy or useful purpose to reproduce in its sordid details.
Appellant's first specification of error is that the evidence is insufficient to support the judgment of conviction. Appellant contends that there has been insufficient proof of his identity; that all of the evidence in the case is so unsatisfactory with respect to the perpetrator of the alleged crime that in legal effect it constitutes no evidence at all. This contention is not borne out by a conscientious scrutiny of the record.
Contrary to appellant's contentions, the complaining witness identified appellant as the perpetrator of the crime against her in a line-up on December 11, 1953; at the preliminary hearing even though appellant had since grown a mustache; and at the time of the trial. The record shows that the complaining witness had ample opportunity to observe appellant and identified him three separate times, with a considerable lapse of time between instances. The complaining witness's testimony regarding the identification of the appellant as the perpetrator of the crime against her in a line-up on December 11, 1953, was also corroborated by Clark Arthur Davidson, Chief of Police, North Las Vegas, Nevada, who was present in the sheriff's office, in the court house, Las Vegas, Nevada, together with other officers, and the mother of the complaining witness.
In the case of People v. Newland, 15 Cal.2d 678, 104 P.2d 778, 779, the court stated: Citing cases.
Appellant contends that the complaining witness gave contradictory statements at the preliminary hearing and at the time of the trial and that therefore the evidence is insufficient to support the judgment of conviction.
In the case of People v. Haywood, Cal.App., 280 P.2d 180, 181, the court stated: * * *'
Appellant next contends that the court erred in refusing proper impeachment of witness Albert Levinson. Levinson admitted having suffered a prior conviction of felony. At this point the witness Levinson was asked this question: 'And the district attorney has you under an information right now, is that correct?'
This question was objected to by the district attorney and the objection was sustained. The attorney for the appellant wanted to 'argue that point.' He was foreclosed by the court from further argument with the statement that counsel only have the right to inquire as to whether or not the witness had been convicted of a felony; 'that is the limit'. It is the contention of the appellant that this was a prejudicially erroneous ruling insofar as the appellant is concerned; that appellant had the right to bring to the jury any possible motives for falsifying his testimony that were present; that if it were a fact that an 'information' was pending against the witness Levinson this would be an element which the trier of facts should know in evaluating the credence which they were to give this testimony.
Appellant relies on People v. Pantages, 212 Cal. 237, 297 P. 890, as primary authority for his contention that the court did so err. In the Pantages case, supra, a question was propounded to the witness similar to the question in the case before this court, and there, as in the case at bar, the trial court sustained an objection to the question. The Pantages case was reversed but that court did not base its reversal solely on that assignment of error. Others included the failure of the court to allow evidence of previous unchastity on the part of the complaining witness in a rape case where force and violence were alleged and proved; refusal to allow physician's testimony to disprove penetration; the giving of erroneous instructions on sympathy toward defendant and on consent of the complaining witness; and the failure to give an instruction as to what the jury could consider in recommending punishment.
The trial court in the Pantages case, supra, relied a great deal on People v. Dillwood, 4 Cal. Unrep. 973, 39 P. 438, 439, wherein the court stated in part as follows: 'These charges should, however, be proved by the record if objection is made to oral evidence of them.'
In the case at bar there was no offer of proof, either orally or by way of attempted introduction of a record, to show that witness Levinson was under information by the District Attorney of Clark County at the time he testified. Futhermore, in addition to his testimony that he had been convicted of a felony, the record of the examination of appellant is abounding with statements attacking the credibility of witness Levinson and showing his possible bias and prejudice against, his possible hostility to,...
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Zessman v. State
...request for additional time violates due process. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); Polito v. State, 71 Nev. 135, 282 P.2d 801 (1955). Each case must turn on its own circumstances, with emphasis upon the reasons presented to the trial judge at the time th......
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Washington v. State
...prejudiced in respect to a substantial right. See Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 235 (1986); Polito v. State, 71 Nev. 135, 140, 282 P.2d 801, 803 (1955). Judicial Washington argues that the district judge was biased against him because he refused to accept the State's ple......
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...Harp, 31 Idaho 597, 173 P. 1148 (1918); People v. Wrigley, 69 Cal.2d 149, 70 Cal.Rptr. 116, 443 P.2d 580, 586 (1968); Polito v. State, 71 Nev. 135, 282 P.2d 801 (1955). We note, moreover, that the district court specifically instructed the jury that the testimony in question was corroborati......
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