Rains v. State

Citation422 P.2d 541,83 Nev. 58
Decision Date18 January 1967
Docket NumberNo. 5133,5133
PartiesRobert D. RAINS, Appellant, v. The STATE of Nevada, Respondent.
CourtSupreme Court of Nevada

Batjer & Sheerin, Carson City, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, Joseph O. McDaniel, Dist. Atty., Elko, for respondent.

OPINION

ZENOFF, Justice:

On July 20, 1965 Mr. and Mrs. Larry Crouch owned a certain 1965 Harley-Davidson motorcycle which was parked in their backyard in Elko. On that evening at about 10:00 P.M. Mrs. Crouch covered the vehicle, went to pick up her husband who was at church, and upon their return 15 minutes later, the bike was gone.

At approximately 10:35 P.M. a Nevada Highway Patrolman learned of the stolen motorcycle which he had seen pass him a few minutes earlier. He set off in pursuit and identified the person on the motorcyle as the defendant. The defendant attempted to outrun the officer at 90 miles per hour through Carlin Canyon on U.S. Highway 40 until the motorcycle ran out of gas. Defendant was hiding in the brush when he was discovered and handcuffed by the officer.

At the trial there was eye witness testimony, in addition to the above, that a person of the size and description of the defendant was seen pushing a motorcycle in the vicinity of the Crouch residence the evening in question. Rains testified that he and a friend had met two strangers at a hotel in Elko, that they bet him that he could not ride their motorcycle, that it was parked outside the hotel at about 10:30 P.M. on that evening when he accepted their dare, and that he thought that the strangers owned it. There was no other testimony to support his explanation, only that of his companion who said he overheard Rains and two young men talking about motorcycles.

Rains was charged with violation of NRS 205.272, taking vehicle without consent of owner. At the commencement of trial, his attorney and the district attorney waived a jury. The court found defendant guilty and he was sentenced to prison from one to ten years. Appealing from that conviction, he contends that although a trial by jury was waived by both parties the court had no right to accept the waiver for the reason that a proper construction of Nev. Const. art. 1, § 3, provides: 'The right of trial by Jury shall be secured to all and remain inviolate forever; but a Jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law; * * *.' NRS 174.480 states as follows: 'Issues of fact; How tried.

'1. Issues of fact must be tried by jury, unless a trial by jury be waived by consent of both parties expressed in open court and entered in its minutes.

'2. In cases of misdemeanor the jury may consist of 12, or any number less than 12 upon which the parties may agree in open court.'

The latter statute was amended in 1961 to its present form. Prior to the amendment, Section 1 read: 'Issues of fact must be tried by jury, unless a trial by jury be waived in cases not amounting to felony, by consent of both parties expressed in open court and entered in its minutes.'

Rains assets that since the Nevada Constitution mentions only the right of waiver of a jury trial in civil cases, ergo, no waiver is permitted in criminal cases. He suggests that the public policy of this state supports this position and requires a trial by jury in a criminal case and the jury cannot be waived.

He further contends that application of NRS 174.480 (which conditions a defendant's right to waive a jury upon the consent of the other party, the State) to criminal cases would be in derogation of the state constitutional provision mentioned above and not consistent with NRS 169.190. If this be so, the waiver stated in open court by defendant's counsel and the prosecutor was invalid and the court had no jurisdiction to proceed absent the jury.

1. The right to a jury trial in a criminal case can be waived, but the ability to waive the constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right, i.e., although a defendant can under some circumstances waive his constitutional right to a public trial he has no absolute right to compel a private trial. The defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930). The right to a jury trial is a personal privilege, but yet still subject to constitutional or statutory mandate. Schick v. United States, 195 U.S. 65, 72, 24 S.Ct. 826, 49 L.Ed. 99 (1904). Just as the federal government has recognized that the waiver of a jury trial has a proper place in its system of criminal justice the states have done likewise for their systems. (This state with NRS 174.480.)

Requiring the consent of the prosecutor or court, or both, before a waiver becomes effective is a reasonable protective condition. The premise is that society has a legitimate interest in seeing that cases in which it believes a...

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3 cases
  • Spillers v. State
    • United States
    • Nevada Supreme Court
    • January 4, 1968
    ...and with the State's consent and court approval waived a jury trial, been tried before the court and found guilty. (Rains v. State, 83 Nev. ---, 422 P.2d 541 (1967).) This lopsided penalty scheme is not constitutionally permissible. The Sixth Amendment to the federal constitution and art. 1......
  • Riley v. State
    • United States
    • Nevada Supreme Court
    • March 28, 1991
    ...the constitutional right to a trial by an impartial jury, but he does not have the right to compel a bench trial. Rains v. State, 83 Nev. 58, 60, 422 P.2d 541, 542 (1967). See also Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). The State was within its rights whe......
  • Goldstein v. Pavlikowski
    • United States
    • Nevada Supreme Court
    • October 26, 1971
    ...was answered negatively in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), and in our case of Rains v. State, 83 Nev. 58, 422 P.2d 541 (1967). In Nevada, N.R.S. 175.011 specifically provides that an accused who pleads not guilty to the charge of a capital offense ......

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