State v. Corinblit

• Citation: 72 Nev. 202,298 P.2d 470
• Decision Date: 19 June 1956
• Docket Number: No. 3894,3894
• Parties: The STATE of Nevada, Appellant, v. Alexander CORINBLIT, Respondent.
• Court: Supreme Court of Nevada

Page 470

298 P.2d 470

72 Nev. 202

The STATE of Nevada, Appellant, v. Alexander CORINBLIT, Respondent.

No. 3894.

Supreme Court of Nevada.

June 19, 1956.

Harvey Dickerson, Atty. Gen., George M. Dickerson, Dist. Atty., Clark County, Gordon L. Hawkins, Deputy Dist. Atty., Clark County, Las Vegas, for appellant.

Harry E. Claiborne, Las Vegas, for respondent.

MERRILL, Chief Justice.

This is an appeal taken by the state from judgment of the trial court dismissing an action against the defendant for the crime of embezzlement.

The dismissal occurred during trial before a jury. After the prosecution had completed its case the court took the case from the jury upon motion of counsel for the defendant and ordered the case dismissed for failure of the state to prove a material element of the crime charged. Upon this appeal the state contends that this action was in violation of § 11001, N.C.L.1929, which provides: 'If, at any time after the evidence on either side is closed, the court deem the same insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury shall not be bound by such advice, nor must the court for any cause prevent the jury from giving a verdict, except as provided in sections 318, 319, and 320.'

Respondent opposes the appeal upon the merits and has also moved its dismissal, in each instance upon the ground that the matter is moot.

By § 11091, N.C.L.1929, it is provided that with certain specific exceptions which do not apply here 'an appeal taken by the state shall in no case stay or affect the operation of a judgment in favor of the defendant.' The state concedes that the defendant has already been placed in jeopardy by the proceedings below and that under § 11091 he may not be retried upon the charge involved.

The state contends, notwithstanding that the rights of the parties to this litigation cannot be affected by this appeal, that this court should, nevertheless, proceed to determine the issue of law which the appeal presents. It contends that since the state has expressly been given a right of appeal from final judgment in all criminal cases, § 11084, N.C.L.1929, the legislature in effect has expressed a desire that this court undertake to render a decision in all such cases in order that an expression upon the law, in the public interest, might be had.

We agree with that construction. State v. Dulaney, 87 Ark. 17, 112 S.W. 158, 15 Ann.Cas. 192; State v. Laughlin, 171 Ind. 66, 84 N.E. 756; See: City of Reno v. Second Judicial District Court, 58 Nev. 325, 328, 78 P.2d 101; Note, 48 Am.St.Rep. 213. Accord: State v. Van Valkenburg, 60 Ind. 302; State v. Ward, 75 Iowa 637, 36 N.W. 765; Com. v. Bruce, 79 Ky. 560, 3 Ky.Law Rep. 366; State v. Billups, 179 Miss. 352, 174 So. 50; State v. Granville, 45 Ohio St. 264, 12 N.E. 803; State v. Gray, 71 Okl.Cr. 309, 111 P.2d 514; State v. Hamilton, 80 Or. 562, 157 P. 796; State v. Hows, 31 Utah 168, 87 P. 163; Territory v. Nelson, 2 Wyo. 346. While § 11091, N.C.L., limits the effectiveness of an appeal by the state it does not limit or deny its right of appeal, but would seem expressly to recognize the right to exist. The first sentence of that section reads, 'An appeal taken by the state shall in no case stay or affect the operation of a judgment in favor of the defendant * * *.' We cannot but regard this as an expression of legislative intent that an appeal may be taken by the state notwithstanding its limited effectiveness. It is legislative intent and not wisdom with which we are here concerned.

The motion to dismiss is denied. Upon the issue presented for determination we hold that, under § 11001, N.C.L.1929, the trial court was in error in taking the case from the jury. People v. Roberts, 114 Cal. 67, 45 P. 1016.

The question of the constitutionality of legislation imposing upon this court advisory duties in moot criminal appeals has not been presented to this court. No implication of determination upon that question is to be drawn from this decision.

As notice of our action, it is ordered that remittitur issue to the court below setting forth our declaration of error.

EATHER, J., concurs.

BADT, Justice (dissenting).

The question raised by the motion to dismiss the state's appeal is whether or not this court should rule upon the asserted error of the trial court in dismissing an action against the defendant for the crime of embezzlement despite the fact that the question is moot; whether, despite the fact that it is moot, we should rule upon the point raised, in the public interest and for the guidance of future criminal trials in the district courts. I am of the opinion that the appeal should be dismissed.

The majority opinion relies upon the provisions of § 11084, N.C.L.1929, reading as follows: 'The party aggrieved in a criminal action, whether the party be the state or the defendant, may appeal as follows:

'* * * 2. To the supreme court from a final judgment of the district court in all criminal cases. Also, from an order of the district court allowing a demurrer or granting or refusing a new trial.' It further asserts that the generality of the language in that section is emphasized by the language contained in § 11091 to the effect that an appeal by the state shall not affect the operation of a judgment in favor of the defendant except on appeals from orders sustaining a demurrer to the indictment or granting a motion in arrest of judgment or granting a motion for new trial. It asserts that the meaning of this language is that appeals may be taken from the judgment, questioning intermediate rulings of the court, in which the judgment is in nowise affected.

In rejecting this view I call attention to the following: Sections 11084, to and including § 11105, are the sections comprising chapter 38, which governs appeals in criminal actions. This chapter forms a part of the criminal practice act, which in itself contains 678 sections as passed by the legislature in 1911, written into the Revised Laws of 1912, and subsequently into the Compiled Laws of 1929, subject to sundry amendments. Section 11084 must of course be construed in connection with other sections of the criminal practice act and particularly chapter 38 governing appeals.

It will first be noted that the state may appeal only if it is an aggrieved party. One may seriously question whether the state has been aggrieved when all it seeks is a clarification of the law. An aggrieved person is one whose rights are in any respect concluded by the judgment. Afriat v. Afriat, 61 Nev. 321, 117 P.2d 83, 119 P.2d 883. The state does not assert that an essential element of the crime of embezzlement was not lacking in the case. It is not aggrieved by the lack of a conviction of defendant, but complains of an erroneous dismissal instead of the court's advising the jury to acquit.

Nor does § 11087 help the construction given by the majority opinion. It reads: 'Upon the appeal, any decision of the court in an intermediate order or proceeding, forming a part of the record, may be reviewed.' This simply follows our general theory of practice in both civil and criminal appeals. Intermediate orders and proceedings not specifically made appealable by statute may be reviewed only on appeal from the judgment.

Section 11096 gives appeals in criminal cases priority. This unquestionably is for the purpose of avoiding delay in the final determination of criminal cases. It has no reasonable application to any necessity for haste in determining abstract questions of criminal law.

Section 11097 forbids a reversal without argument, whether orally or upon written brief, though the respondent fail to appear. It is quite patent that the respondent would never have appeared in this appeal had it not been for the contention in the state's opening brief that the state was entitled to a reversal and to a remand for a new trial. It was not until the oral argument that the state conceded that in no event could respondent be subjected to another trial.

Sections 11100 and 11101 in particular, however, limit the generality of the words of § 11084. They read as follows: 'After hearing the appeal, the court shall give judgment without regard to technical error or defect which does not affect the substantial rights of the parties.' This refers of course to the parties to the litigation. No substantial right of either of the parties can be affected by a decision or opinion whose sole purpose is to declare a matter of abstract law for future guidance.

Section 11101 is entitled 'Power of appellate court' and reads as follows: 'The appellate court may reverse, affirm, or modify the judgment appealed from, and may, if necessary or proper, order a new trial.'

The state contends, and the majority of the court agree, that the power of the appellate court is thus defined with relation only to appeals aimed at affecting the judgment itself, and has no reference to the general right of the state to appeal 'from a final judgment of the district court in all criminal cases' as granted by § 11084. I cannot agree with that view. If § 11084 must be read in connection with § 11101, as I think must be conceded, then the latter section limits the power of the appellate court on appeal to reversal, affirmance or modification of the judgment, with remand for new trial if necessary. We may not add to § 11101, without judicial legislation, the additional power of rendering opinions and decisions on moot questions of law, affecting neither the judgment nor any substantial rights of the parties, for the purpose of clarifying the law for guidance of the district courts in future cases. Whether such practice would be advisable, or whether, if deemed advisable, and so enacted by the legislature, such administrative function would be constitutional, is not for us to consider.

In State v. Pray, 30 Nev. 206, 94 P. 218, 220, Pray was convicted of receiving stolen goods, fined $1,000 and...