State v. Clark
| Citation | 149 P. 185,38 Nev. 304 |
| Decision Date | 01 June 1915 |
| Docket Number | 1909. |
| Parties | STATE v. CLARK. |
| Court | Supreme Court of Nevada |
Appeal from District Court, Humboldt County; W. H. A. Pike, Judge.
On rehearing. Granted. Judgment and order reversed, and cause remanded for new trial.
For former opinion, see 36 Nev. 472, 135 P. 1083.
P. A McCarran, of Carson City, and W. D. Jones, of Reno, for appellant.
R. C Stoddard, Atty. Gen., for the State.
Judgment upon a conviction of murder in the second degree was affirmed in the former opinion and decision of this court, reported in 36 Nev. 472, 135 P. 1083. Rehearing was granted that further consideration might be given to the case which presented a number of close questions, particularly in reference to the action of the court in calling in the jury after it had retired to deliberate upon its verdict, and the proceedings thereafter following.
For convenience of consideration we will again recite that portion of the record as it appears in the former opinion:
Mr. Foreman: Yes, sir.
The Court: But I want to know how you stand numerically. Now, be careful. Is it--Does the balance stand 6 to 6, or 8 to 4, or 3 to 9, or something? What is the result of your last ballot, without stating what it was?
Mr. Foreman: I understand; 11 to 1.
The Court: Well, that looks easy. If it is in that condition, and there isn't anything you want of the court, is there, that you know of?
Mr. Foreman: No, I don't think there is.
The Court: I do not want any of you to understand, gentlemen, that I wish to suggest in the slightest degree as to what your verdict should be. That is furthest away from my mind. All I want to say to you--to remind you--that, if you can conscientiously do so, it is your duty to reach an agreement as to something or other. The trial has been on here now since the 28th day of April, consuming something over or about three weeks of the court's and attorneys' time, and has cost Humboldt county a vast sum of money. Now, if you can possibly conscientiously agree upon a verdict, it is your duty to do so. The sheriff will take you to dinner in about half an hour, and I want you to retire to the jury room and go to work.
Mr. McCarran: If the court please, let the record show that upon the part of the defense we save an exception now to the remarks of the court as trying to induce the jury to arrive at a verdict by offering them inducements along the lines of the expense, which is prejudicial to the defendant.
The Court: Well, the record will show that the attorney is out of order, and has no right to take an exception, and the exception will not be allowed.
Mr. McCarran: Well, we will try and have that exception allowed.
The Court: If the attorney is not very careful, he will be in contempt of court. Let the record show that. You may retire to the jury room, gentlemen. Defendant may be remanded."
We have been asked to reconsider this phase of the case, particularly in view of the evidence offered upon the part of the state to sustain a conviction. While the question of insufficiency of the evidence to justify the verdict is not raised upon the record, it is contended that the evidence is far from establishing guilt with any considerable degree of certainty, and is of such a character that any error upon the part of the court should be regarded as sufficient to have turned the balance against the defendant; that the conduct of the court in the particular mentioned, in view of the evidence, ought to be regarded as sufficiently prejudicial to warrant a reversal.
Without reviewing the evidence at length and recognizing the well-settled rule that the credibility of the witnesses and the weight to be given their testimony is entirely a matter for the jury, it is proper to say that the evidence against the defendant was largely, if not entirely, circumstantial. It was the theory of the state that a conspiracy had been formed between the appellant and three others, who were associated in the location of certain mining property, to kill Sol Hendra, who with his two brothers and some other parties, also claimed title to the property. The decedent, together with three other parties, had gone upon the ground to do the annual labor upon the claims. They were met by the appellant and two of his associates. The appellant protested against the work proceeding.
A. M. Williams, one of the principal witnesses for the state, gave the following testimony concerning the immediate circum stances of the shooting:
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Orr v. State
...supra; People v. Kindleberger, 100 Cal. 367, 34 P. 852; People v. Sheldon, 156 N.Y. 268, 50 N.E. 840, 41 L.R.A. 644; State v. Clark, 38 Nev. 304, 149 P. 185, 186 (jury out 'several hours'-- 'The trial * * * 'has cost Humboldt county a vast sum of money' * * *,' held remarks--coupled with ju......
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Redeford v. State
...he shall have the judgment of twelve men uninfluenced by matters foreign to the evidence admitted at the trial." State v. Clark, 38 Nev. 304, 310, 149 P. 185, 187 (1915). In Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), the Supreme Court held it prejudicial e......
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Ransey v. State
...did not remind the individual jurors not to surrender conscientiously held opinions for the sake of judicial economy. Cf. State v. Clark, 38 Nev. 304, 149 P. 185 (1915). Because of the numerical division inquiry, the trial judge in this case knew that there was only one dissenting juror. Ne......
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White v. State
...Nev. 649, 652-53, 572 P.2d 219, 220-21 (1977) (court erred in giving Allen charge without qualifying language); State v. Clark, 38 Nev. 304, 308-10, 149 P. 185, 187-88 (1915) (judicial coercion of jury included inquiry into numerical division). We opt to follow our precedent and reject the ......