State v. Boyle

Decision Date24 July 1926
Docket Number2727. [a1]
Citation248 P. 48,49 Nev. 386
PartiesSTATE v. BOYLE.
CourtNevada 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.

COLEMAN C.J.

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:

"Q. Now, was the 31st of March Saturday at all? Don't you know that the 31st of March was Wednesday?
Mr. Heward: Both of you are wrong. It was on Tuesday.
Mr. McCarran: Q. All right. On Tuesday, Tuesday. If the 31st of March was a Tuesday, you are all wrong on your calculations, aren't you, Mr. Lockridge? A. Only to the 31st of March.
Q. Only to the 31st of March. Well, if you do not know that it was a Tuesday, and you state positively it was a Saturday, how do you know it was the 31st of March at all? A. Because that was the day the bank was robbed. * * *
Mr. McCarran: Q. When this car that stood out there on this Saturday that you speak about was parked on Eleventh street, you were not closer to the car than across the street, were you?
Mr. Summerfield: Object to that as assuming a state of facts not in evidence. This has already been shown now not to have been on a Saturday, but on a Tuesday."

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:

"Mr. Heward: Q. Sheriff, I believe you testified that you had a conversation with the defendant down in the jail on the morning of July 3, 1925. Is that correct? A. Yes, sir.
Q. At that time did you hold out any inducements to
this defendant?
Mr. McCarran: One moment, if the court please. That is leading and suggestive, argumentative, calls for the conclusion of the witness.
Mr. Summerfield: It is a type of question where you can ask for conclusions, and have to.
The Court: Yes, in laying the foundation. The objection is overruled.
A. I did not.
Mr. Heward: Q. Did you make any threats to him?
Mr. McCarran: The same objection, if the court please.
The Court: The same ruling.
Mr. Heward: Q. Did you use any force or violence to or toward the defendant? A. I did not.
Q. Did you make any promises to him? A. No, sir.
Q. State what his appearance was as to being calm and composed or otherwise? A. He was calm.
Q. Would you read me next the last question that I asked just prior to recess?
The reporter read the question referred to as follows:
'Q. What did the defendant, Boyle, first say to you?'
Mr. McCarran: That is objected to, if the court please, on all the grounds stated.
The Court: Do you want that question in the form it is now?
Mr. Heward: Well, I will ask the question outright:
Q. Just state what the conversation was between yourself and the defendant, Dudley M. Boyle, at the time and place I have heretofore indicated?
Mr. McCarran: It is objected to as incompetent, immaterial, and irrelevant.
The Court: The objection is overruled.
Mr. McCarran: I save an exception.
A. Mr. Boyle asked me if he could see me a minute. I told him that he could. I stepped back in the jail, and Mr. Box went on out. Mr. Boyle says, 'Bill, I have learned a good lesson. I will stop drinking, and I will leave the country if you will assist me out of this trouble.'
Mr. Heward: My question was broad enough to cover the entire conversation, so just go ahead, sheriff. A. That is about all was said. There was a little hesitation, and I got up and walked out. I beg your pardon: There was-I told him that Sheriff Hillhouse had a good deal of evidence against him, and among the evidence he knew about the one dollar bills that he paid his room rent with. And he says, 'I can make an excuse for having those one dollar bills.' And I says, 'What do you expect me to tell Sheriff Hillhouse when he arrives this morning?' He says, 'Tell him that you made a mistake and got the wrong man.' He says, 'This may hurt you for a while, but it will wear off.' "

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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