Polito v. State, 3828

• 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

Page 801

282 P.2d 801

71 Nev. 135

Charles Dominic POLITO, Appellant, v. The STATE of Nevada, Respondent.

No. 3828.

Supreme Court of Nevada.

April 22, 1955.

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.

EATHER, Justice.

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: 'The rule applicable where there is evidence, circumstantial or otherwise, that a crime has been committed and that the defendant was the perpetrator thereof, has been many times reiterated by the reviewing courts of this state as follows: The court on appeal 'will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground' of insufficiency of the evidence, 'it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. The determination of a charge in a criminal case involves proof of two distinct propositions: First, that the offense charged was committed; and, second, that it was perpetrated by the person or persons accused thereof. * * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.' 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: 'Such conclusion, however, does not necessarily follow. It is, of course, fundamental that the credibility of a witness is for the determination of the trier of fact. Hence conflict and inconsistencies in the testimony of an individual witness are to be resolved by the fact finding authority. * * * Thus the trial judge was entitled to accept as true the testimony of the complaining witness on direct examination rather than the conflicting testimony which she later gave. * * * People v. Holman, 72 Cal.App.2d 75, 89, 164 P.2d 297. * * *'

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...