State v. Boyle
Decision Date | 24 July 1926 |
Docket Number | 2727. [a1] |
Citation | 248 P. 48,49 Nev. 386 |
Parties | STATE v. BOYLE. |
Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Geo. A. Bartlett, Judge.
D. M Boyle was convicted of bank robbery, and he appeals. Affirmed.
McCarran & Mashburn, of Reno, for appellant.
M. A Diskin, Atty. Gen., Wm. J. Forman, Deputy Atty. Gen., L. D Summerfield, Dist. Atty., and H. L. Heward, Deputy Dist. Atty., both of Reno, for the State.
The defendant was convicted of bank robbery, and has appealed from an order denying his motion for a new trial, and from the judgment. Such facts as may be necessary will be stated in disposing of each point urged.
The first error assigned goes to the ruling of the trial court upon an objection to certain questions asked G. K. Collins on cross-examination. The state called Mr. Collins, and asked him only two questions, viz. what his name was, and where he resided. After the witness had answered a few questions, on cross-examination he was asked if he had ever seen the clerk at the Golden Hotel in Reno prior to registering at the hotel, whether any one was with him when he registered, and some other questions in no way pertaining to the matter concerning which he was inquired of on direct examination. While this court has repeatedly held that the range of cross-examination should be limited to the subject-matter inquired into on direct examination (Buckley v. Buckley, 12 Nev. 423; Nash v. McNamara, 30 Nev. 144, 93 P. 405, 16 L. R. A. [N. S.] 168, 133 Am. St. Rep. 694), we think this statement of the law should be construed in the light of the facts of the particular cases in which the statement was made. The fundamental theory justifying cross-examination, as observed in the very able work on the law of evidence by Dean Wigmore, is that a witness on his direct examination discloses but a part of the facts necessary to be considered in reaching a proper evaluation of his testimony. As that learned author observes, the facts suppressed or undeveloped may be of two sorts: (a) The remaining and unqualified circumstances of the subject of testimony, as known by the witness; and (b) the facts which diminish and impeach the personal trustworthiness of the witness. 3 Wigmore on Evidence (2d Ed.) § 1368. As to the first classification, it is clear that the court did not abuse its discretion, since the questions asked did not relate to the subject-matter covered on direct examination. As to the second class, while the extent of the examination is largely in the discretion of the court, a wide range should ordinarily be allowed to test the witness' motives, interest, and animus, and generally to test the value of his evidence for accuracy. In the instant case, however, there was no prejudice done the defendant. The mere fact that the witness bore a particular name, and that he was a resident of Lida, Nev., could in no way, so far as it appears from the record, prejudice the defendant, no matter how hostile he might have been toward the defendant. But Collins was called as a witness for the defendant, and testified while so on the stand to the identical facts he testified to when called on behalf of the state. His testimony demonstrates not only that he was not hostile toward the defendant, but that he was chiefly relied upon to establish the innocence of the defendant, and was very friendly toward him. The defendant was in no way prejudiced.
It is contended that the court erred in sustaining an objection made by the district attorney to a question asked one Lockridge, a witness on behalf of the state, on cross-examination. This witness had testified on direct examination that he saw a certain automobile parked on Eleventh street, Sparks, Nev., on Saturday, March 31, 1925, and had described the car and the action of the man in it, whom he identified while on the witness stand as G. K. Collins. He had testified very positively that the day of the week was Saturday. We quote from the evidence:
In this connection it is also said that the court committed error in making the observation that he thought it would be better to avoid confusion by directing the attention of the witness to the date "instead of to the wrong day, which he says it was." We do not think the court committed prejudicial error. When Mr. Heward suggested that the 31st was on Tuesday, both counsel and the witness apparently accepted the statement as correct, and the witness then pinned the incident to the 31st, the day of the robbery. In either event, the main purpose of the question was to establish the fact that the witness was not closer to the car than across the street at the time he saw it. That phase of the question was open to such further inquiry as was deemed necessary-the day of the week on which the car was seen was a mere detail. Furthermore, the defendant gave testimony showing that the 31st of March was on Tuesday. The defendant suffered no prejudice.
It is next contended that the court erred in overruling an objection to a question asked W. B. Mercer, a witness on behalf of the state, on direct examination. Mr. Mercer was sheriff of Esmeralda county. The defendant had been arrested, and placed in the county jail on the day previous to the conversation of which the witness was testifying. At the time the defendant was placed in the jail, the witness told him that he had been arrested for the Sparks bank robbery, and the best thing for the defendant to do "would be to make a clean breast of it all." What further, if anything, was said at that time about the robbery does not appear. Concerning a conversation between the witness and the defendant on the morning of July 3d, the day after the arrest, we find the following testimony by Mercer:
As to the contention that the question called for the conclusion of the witness, we need only say that no exception was taken to the ruling of the court. Furthermore, it affirmatively appears that no inducement was held out to the defendant to make the statement which was made. He opened up the subject himself, and volunteered the statement. State v. Mircovich, 35 Nev. 485, 310 P. 765.
As to the statement on the previous day by the sheriff that the best thing for the defendant to do was to "make a clean breast of it all," it was not prejudicial to the defendant....
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