Rainsberger v. State
| Decision Date | 06 April 1960 |
| Docket Number | No. 4198,4198 |
| Citation | 76 Nev. 158,350 P.2d 995 |
| Parties | Jack RAINSBERGER, Appellant, v. STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Samuel S. Lionel, Las Vegas, for appellant.
Roger D. Foley, Atty. Gen., George Foley, Dist. Atty., Clark County, Las Vegas, for respondent.
On November 26, 1958 an information was filed in the court below charging appellant with murder. Appellant appeared for arraignment on November 28, 1958, and at his request that the court appoint an attorney to represent him, Samuel S. Lionel, Esquire, was appointed attorney for appellant.
On motion of appellant's counsel the arraignment was ordered continued until December 1, 1958, and at the time so appointed, appellant's counsel requested a further continuance until December 15, 1958. On the last-mentioned day, and again at the request of appellant's counsel, the matter was continued until January 9, 1959, at which time the arraignment took place, appellant pleaded guilty to the charge contained in the information, and the matter was continued until January 20, 1959 for the purpose of taking evidence to determine the degree of the crime charged and the punishment to be imposed. On January 15, 1959 appellant was present in court which his counsel when the state made a motion that the hearing to determine degree and punishment be continued from January 20, 1959 to a later date in order to obtain the attendance of certain witnesses for the state. Over the objection of appellant, the said hearing was continued until February 19, 1959. From the evidence presented at the hearing the court concluded that appellant was guilty of murder in the first degree and fixed the penalty at death.
Appellant has assigned several errors which are hereinafter considered separately:
(1) Error is claimed in the action of the court in granting a continuance so that witnesses for the state could be present to testify. Rule 21 (formerly Rule 12), Rules of District Court, requires motions for continuance to be made upon affidavit and further provides that no continuance will be granted unless the affidavit conforms to the rule. Although the affidavit was not in strict compliance with Rule 21, the trial court nevertheless had discretion to grant a continuance upon the showing that the application for continuance was made in good faith and not merely for delay. Giorgetti v. Peccole, 69 Nev. 76, 241 P.2d 199.
(2) Defendant contends that it was error for the court to permit witnesses to testify for the state whose names were endorsed on the information after the hearing had started. In State v. Monahan, 50 Nev. 27, 249 P. 566, 569, this court said: '* * * the indorsement of names of witnesses upon an information is largely a matter of discretion of the court; and, in the absence of a showing of abuse, or that some substantial injury has resulted to the accused, an order permitting such indorsement, even after the trial has commenced, does not constitute of itself reversible error.' The witnesses so permitted to testify were agents of the Federal Bureau of Investigation and their testimony related only to the presence of the defendant at the scene of the crime. Since this fact was admitted by the defendant through his plea of guilty to the homicide, no prejudice resulted to the defendant. It further appears that the court offered to grant defendant a continuance in order to meet the testimony of these witnesses but such offer was rejected.
(3) Error is claimed in the court's refusal to permit defendant's witness, one Padbury, to testify. The reason for the court's refusal was that said witness had sat in the courtroom for five minutes before being called. N.R.S. 48.250 provides: 'If either party require it, the judge may exclude from the courtroom any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of other witnesses.' Appellant's counsel asked that the rule be invoked as to the state's witnesses, but the court in its order invoked it as to all witnesses in the case.
It is to be noted that this section of the Nevada statutes is part of its civil practice sections and makes it mandatory upon trial courts in civil actions to exclude witnesses when the rule is invoked. While this state has no statutory requirement for the exclusion of witnesses in criminal actions, nevertheless it is within the discretion of the trial court to exclude witnesses from the courtroom during criminal proceedings. See 24 C.J.S. Criminal Law 1872, p. 770.
In 6 Wigmore, Evidence § 1837 (3d ed. 1940) the history of the expedient of separating witnesses 'in order to detect falsehood by exposing inconsistencies,' is traced from ancient times. 'The practice,' it is stated,
While a violation of the rule may subject a witness to punishment such as...
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Rainsberger v. State
...of first degree murder, and sentenced him to death. However, that judgment was vacated because of prejudicial error. Rainsberger v. State, 76 Nev. 158, 350 P.2d 995. On remand a new hearing was ordered before three district judges because, pending that appeal, the legislature had amended th......
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Creps v. State
...realm firmly, consistently, but realistically." In keeping with this policy of interpretation, we held in Rainsberger v. State, 76 Nev. 158, 160, 350 P.2d 995, 996 (1960), that it is within the discretion of the trial court to grant a motion for a continuance upon the support of an affidavi......
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Evans v. State
...of prohibiting the testimony. Salley was permitted to testify, prompting Evans to raise an assignment of error. In Rainsberger v. State, 76 Nev. 158, 350 P.2d 995 (1960), we had occasion to interpret a prior, similar witness-exclusion rule. The Rainsberger court held that it was prejudicial......
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Walker v. State
...This court is most reluctant to disregard error as harmless under NRS 169.110, particularly in a capital case. See Rainsberger v. State, 76 Nev. 158, 350 P.2d 995. However, in the present case, in view of the overwhelming proof of guilt, we are convinced that the jury would not have come to......