State v. Carey, 1,996.

Docket Nº1,996.
Citation122 P. 868, 34 Nev. 309
Case DateApril 06, 1912
CourtSupreme Court of Nevada

122 P. 868

34 Nev. 309


No. 1,996.

Supreme Court of Nevada

April 6, 1912

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

John Carey was convicted of an assault to commit the crime against nature, and he appeals. Reversed, and new trial granted.

Mayers, Lunsford & Fowler, for appellant. Cleveland H. Baker, Atty. Gen., for the State. William Woodburn, Jr., amicus curiæ.


Defendant was indicted for the crime of assault to commit the infamous crime against nature, convicted, and sentenced to a term of five years in the state prison. From the judgment defendant has appealed.

During the progress of the cross-examination of the complaining witness, following a statement of counsel for defendant, relative to certain testimony of the witness on direct examination, to which objection was made that the same was not in accordance with the testimony of the witness, the trial judge interposed the following remark: "I don't believe that the court, counsel, or jury has that impression of the evidenced." It is urged that those remarks constituted an invasion of the province of the jury, and was prejudicial error. The dispute between counsel as to the evidence was as to whether the witness had testified to more than one attempt upon the part of the defendant to commit the act. What the witness actually testified to was read by the reporter in the presence of the jury, and any misunderstanding was cleared up. The remarks of the court, conceding them to have constituted error, cannot, we think, be said to have prejudiced the defendant's case, for, if they had any force at all, it was an intimation that the witness had not testified to three attempts upon the part of the defendant but [122 P. 869.] only one, a situation favorable to the defendant rather than otherwise.

Under the circumstances, we think there was error in the refusal of the court to give the following instruction: "I instruct you, gentlemen of the jury, that, if you believe from the evidence that the witness Etchegon was willing that the infamous crime against nature be committed upon him, then, in the absence of other evidence than the testimony and acts of Etchegon to connect the defendant with the offense charged in the indictment, you must acquit him." If the jury from a consideration of the character of the complaining witness was of the opinion that he might readily be a party to such a crime, they might under certain...

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7 cases
  • Basurto v. State, 6118
    • United States
    • Nevada Supreme Court of Nevada
    • July 7, 1970
    ...Bias, 170 Cal.App.2d 502, 339 P.2d 204 (1959). Whether one is an accomplice is normally a question of fact for the jury. State v. Carey, 34 Nev. 309, 122 P. 868 (1912); People v. Bias, supra. The complaining witness, Robichaud, placed an abundance of evidence before the jury to allow that b......
  • Nester v. State, 4083
    • United States
    • Nevada Supreme Court of Nevada
    • January 20, 1959
    ...and reject that which points to his guilt.' This is a [75 Nev. 57] modification of the instruction given in the case of State v. Carey, 34 Nev. 309, 122 P. 868, and which was also given here as instruction 4. In the present case we are not concerned with motives but with an alibi. Instructi......
  • State v. Pray, 3461.
    • United States
    • Nevada Supreme Court of Nevada
    • April 9, 1947
    ...circumstances thereof.' Nevada cases dealing with the subject, generally, are: State v. Williams, 35 Nev. 276, 129 P. 317; State v. Carey, 34 Nev. 309, 122 P. 868; State v. Douglas, 26 Nev. 196, 65 P. 802, 99 Am.St.Rep. 688. The doctrine, which we believe to be supported by the weight of au......
  • State v. Economy, 3374.
    • United States
    • Nevada Supreme Court of Nevada
    • October 20, 1942
    ...not the criminal motive." Consequently it was properly refused. A different situation as to the evidence was present in State v. Carey, 34 Nev. 309, 122 P. 868, cited by defendant. The fact that the court instructed the jury "that if you believe from the evidence, beyond a reasonable doubt,......
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