State v. Ceja
| Decision Date | 27 April 1931 |
| Docket Number | 2924. |
| Citation | 298 P. 658,53 Nev. 272 |
| Parties | STATE v. CEJA. |
| Court | Nevada Supreme Court |
Appeal from District Court, Humboldt County; L. O. Hawkins, Judge.
L. Ceja was convicted of murder in the first degree, and he appeals.
Affirmed.
John W Burrows and Frame & Raffetto, all of Reno, for appellant.
Gray Mashburn, Atty. Gen., Wm. J. Forman, Deputy Atty. Gen., and Merwyn H. Brown, Dist. Atty., of Winnemucca, for the State.
The defendant was charged in the lower court by information with the crime of murdering one Charley Fong by stabbing him with a sharp instrument. Upon being brought into court for arraignment the court asked the defendant if he had an attorney to represent him. The defendant stated that he had no attorney, whereupon the court informed him that he was entitled to be represented by counsel and that it was the duty of the court to appoint an attorney to represent him. The defendant stated that he did not desire counsel, and consented to be arraigned without being represented by counsel. The formality of arraignment then took place, and after the information was read to the defendant and a copy thereof handed him, with the indorsements thereon, including the list of witnesses, he entered his plea of guilty to the charge. It being the duty of the court to fix the punishment and to examine witnesses, the court thereupon appointed Thomas A. Brandon, Esq., as counsel for the defendant. In due time the testimony of witnesses was taken and certain depositions were read into the record. Thereafter arguments of counsel were heard by the court. After due deliberation the court entered an order finding the defendant guilty of murder in the first degree, and there being no mitigating circumstances, fixed the penalty at death, and accordingly made its order.
The defendant has appealed. No bill of exceptions containing the evidence is before us, only the bare court record.
The first point made by the defendant is that the information does not state facts sufficient to constitute murder of the first degree. We cannot agree to the contention. The information is substantially in the language of section 10849, N. C. L., which provides what it shall contain. The point made was raised and disposed of by this court adversely to defendant's contention in the case of State v Mangana, 33 Nev. 511, 112 P. 693, wherein it was carefully considered.
There is nothing to the contention that the defendant was denied a constitutional right in that he was not afforded the right of trial by jury. There was no issue to try. The plea of guilty obviated that necessity.
It is asserted that a fundamental error was committed by the court in admitting the depositions of two witnesses, in that the defendant was entitled to be confronted by the witnesses. There is no showing that any objection was made to the admission of the depositions, hence we cannot consider the point. State v. Lawrence, 28 Nev. 440, 82 P. 614. Furthermore, the so-called depositions are nothing more than testimony of two witnesses given at the preliminary hearing which, pursuant to statute, when duly certified to, may be read in evidence under certain conditions. We must presume that the conditions existed. No right of the defendant was violated in this connection.
Considerable criticism is indulged in by counsel for the defendant because of the fact that no counsel was appointed to represent the defendant until after his plea, and of the further fact that the defendant was required to plead at the time of the arraignment, instead of on a subsequent day. Section 10886, N. C. L., provides that on arraignment a defendant must be allowed further time in which to plead, if he requires it, and section 10883 provides that upon arraignment a defendant must be informed by the court of his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel, and if he desires and is unable to employ counsel, the court must assign counsel to defend him.
Both of the provisions of the statute were complied with, hence the defendant was not deprived of any legal right. We think, however, that in a case so serious as one involving the death penalty, and even in others in which grave consequences are involved, it is the better practice to appoint counsel before the defendant is asked to enter his plea.
It is further urged in behalf of the defendant that the court committed prejudicial error in hearing testimony of a witness whose name was for the first time endorsed upon the information by permission of the court after the witness had testified. It does not appear that any objection was made to the procedure at the time, hence, according to strict rules governing such matters, the contention cannot now be urged however, we do not think the defendant was denied a right...
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