State v. Bardmess
| Decision Date | 03 February 1932 |
| Docket Number | 2945. |
| Citation | 7 P.2d 817,54 Nev. 84 |
| Parties | STATE v. BARDMESS. |
| Court | Nevada Supreme Court |
Appeal from District Court, Nye County; Frank T. Dunn, Judge.
A. J (Jack) Bardmess was convicted of assault with intent to inflict violent injury, and adjudged to be an habitual criminal, and he appeals.
Conviction of assault with intent to inflict violent injury affirmed judgment and sentence upon charge of being an habitual criminal annulled.
Frame & Raffetto, of Reno, for appellant.
Gray Mashburn, Atty. Gen., W. Howard Gray, Sp. Deputy Atty. Gen and Lowell Daniels, Dist. Atty., of Tonopah, for the State.
A. J (Jack) Bardmess was informed against by the district attorney of Nye county, omitting formal portions, in words and figures following:
"Walter Rowson, District Attorney, within and for the County of Nye, State of Nevada, in the name and by the authority of the State of Nevada, informs the Court that A. J. (Jack) Bardmess of Ione, Nye County, State of Nevada, on or about the 8th day of September, 1930, and before the filing of this Information, near the town of Ione, in the said County of Nye, State of Nevada, did then and there commit the crime of assault with intent to kill, in the manner as follows, to-wit:
That he, the said A. J. (Jack) Bardmess, on or about the said 8th day of September, 1930, near the said town of Ione, in the said County of Nye, State of Nevada, did unlawfully, feloniously, willfully, knowingly and with the intent to kill one Pete Cazan, a human being, beat and strike the said Pete Cazan on the face and head with a pistol, and did inflict wounds upon the said Pete Cazan with the said pistol, with the intent then and there to kill the said Pete Cazan.
That the said A. J. (Jack) Bardmess has previously been twice convicted, in this State and elsewhere, of a crime which under the laws of this State amounts to a felony, as follows, to-wit:
1. That the said A. J. (Jack) Bardmess, on or about the year 1891, in the County of Logan, State of Idaho, committed the crime of Grand Larceny, and was thereafter duly tried and convicted of said offense in the Superior Court of said County of Logan, State of Idaho, and was thereupon sentenced to serve a term of three (3) years in the Idaho State Penitentiary at Boise, Idaho; that in execution of said sentence said defendant, A. J. (Jack) Bardmess was received at said Idaho State Penitentiary, at Boise, Idaho, on November 22nd, 1892, and was discharged therefrom for expiration of sentence on August 21st, 1895.
2. That the said A. J. (Jack) Bardmess, on or about the 23rd day of December, 1914, in the County of Nye, State of Nevada, committed the crime of Grand Larceny, and was thereafter tried and convicted of said offense in the District Court of the Fifth Judicial District of the State of Nevada, in and for the County of Nye, on the 25th day of March, 1915, and was thereupon, on March 29th, 1915, sentenced to serve an indeterminate term of from four (4) to seven (7) years in the Nevada State Penitentiary, at Carson City, Nevada; that in execution of said sentence said defendant, A. J. (Jack) Bardmess was committed to said Nevada State Penitentiary on March 29th, 1915, and was discharged therefrom for expiration of sentence on May 9th, 1919.
All of which is contrary to the form, force and effect of the statutes in such cases made and provided and against the peace and dignity of the State of Nevada."
The defendant entered a plea of not guilty.
Upon the trial the jury brought in a verdict finding the defendant guilty of assault with intent to inflict a violent injury, the circumstances showing an abandoned and malignant heart.
A motion for a new trial having been denied, the court sentenced the defendant to serve a term of not more than two nor less than one year for the crime of assault, and adjudged him to be an habitual criminal and sentenced him to serve a term of not less than twenty years therefor.
Defendant assigns several alleged errors, and among them is the contention that the court erred in permitting the district attorney, over the objection of counsel, to ask one Griffin, a witness in behalf of the defendant, on cross-examination, if he had not told the sheriff that the affair was the most brutal and horrible thing he had ever seen happen. The witness testified on direct examination that he did not see the defendant making the assault--that they were out of his line of vision. The court permitted the question for the purpose of impeachment. The witness admitted making the statement to the sheriff.
The objection made to that question is as follows: "I object, to that, as irrelevant, incompetent and immaterial, and upon the further ground that the Defendant was not present, and it is not binding on the Defendant; and upon the further ground that it is a mere expression of general opinions; that it is not competent for any purpose in this case, either as evidence or impeachment, or admission, or anything else."
We do not think the court committed error in overruling the objection. It has been often held that such a general objection presents nothing for the court to act upon. In State v. Jones, 7 Nev. 408, it was said: "In criminal as well as in civil cases, the objection should be so pointed that the attention of the court below may be directed to the exact point, so that the objection may be then obviated, if it be one of that character." See, also, State v. Mangana, 33 Nev. 511, 112 P. 698.
Furthermore, the point now made that the cross-examination was as to a collateral matter was not suggested at the trial, hence it comes too late. State v. Chapman, 6 Nev. 320; State v. O'Flaherty, 7 Nev. 153.
It is asserted that the information filed against the defendant does not state facts sufficient to constitute an offense under the Habitual Criminal Act (section 9976, N. C. L.).
It is said that the information is insufficient in that "there are no statements of fact contained in the information from which the court could determine as a matter of law, that the former conviction of the defendant was in fact for a felony or that under the law, the offenses for which the defendant had formerly been convicted were in fact felonies."
We can see no merit in the contention. In one paragraph it is averred that defendant had been twice theretofore convicted of crimes which constitute felonies in Nevada, and in the two succeeding paragraphs it details the time and place of conviction, and follows that up by averring the passing of sentence by the court and the receipt of the defendant at the penitentiary and his discharge therefrom.
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Lisby v. State
...act is not to charge a separate substantive crime but it is only the averment of a fact that may affect the punishment. State v. Bardmess, 54 Nev. 84, 7 P.2d 817 (1932); People v. Dunlop, 102 Cal.App.2d 314, 227 P.2d 281 (1951); Williams v. Smith, 25 Wash.2d 273, 171 P.2d 197 (1946); Ex par......
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Hollander v. State
...act is not to charge a separate substantive crime but it is only the averment of a fact that may affect the punishment. State v. Bardmess, 54 Nev. 84, 7 P.2d 817 (1932). (Emphasis added.) * * 'While this Court in State v. Bardmess, supra, did not reach the question of the validity of two co......
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Atteberry v. State
...Habitual Criminal Act does not charge a separate substantive crime, but is an averment of fact which affects punishment. State v. Bardmess, 54 Nev. 84, 7 P.2d 817 (1932); Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); Howard v. State,......
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McGarry v. Fogliani
...9 Cir., 1962, 310 F.2d 230; Hughes v. Heinze, 9 Cir., 1959, 268 F.2d 864; Wolfe v. Nash, 8 Cir., 1963, 313 F.2d 393. 3 State v. Bardmess, 1932, 54 Nev. 84, 7 P.2d 817; cf. Dotson v. State, 1964, 80 Nev. 42, 389 P.2d 77; Oyler v. Bowles, 1962, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed. 2d 446; Sher......