State v. Cyty
Decision Date | 14 June 1927 |
Docket Number | 2764. |
Citation | 256 P. 793,50 Nev. 256 |
Parties | STATE v. CYTY. |
Court | Nevada Supreme Court |
Appeal from District Court, Nye County; Frank T. Dunn, Judge.
John Cyty was convicted of assault with a deadly weapon with intent to inflict bodily injury, and he appeals. Reversed and new trial granted.
Ryland G. Taylor, of Tonopah, for appellant.
M. A Diskin, Atty. Gen., and Joseph T. Murphy, Dist. Atty., of Tonopah, for the State.
Defendant was charged with an assault with intent to kill, and convicted of the offense of assault with a deadly weapon with intent to inflict bodily injury. He has appealed from both the judgment and the order denying his motion for a new trial.
It is contended that the district attorney was guilty of misconduct prejudicial to the defendant by the use of the following language in his closing argument:
At the time of the statement counsel for the defendant took appropriate steps to protect the rights of his client, and now assigns the remarks as prejudicial error. The court, in response to counsel's attack upon the remarks quoted said:
That is his conclusion from what the testimony was. The jury are to determine what the facts are."
What is the reasonable inference to be drawn from the language of the district attorney? Will it justify the statement of the trial court?
The district attorney did not say that the purported statement was made to him on cross-examination in the presence of the court and jury, but "as he told me in talking to me." To our minds this language clearly implies only one situation, namely, that the statement was made to the district attorney privately, and not while he was being cross-examined in open court. Furthermore, a careful reading of the evidence of the defendant on cross-examination by the district attorney fails to disclose the slightest testimony to support the statement which is complained of. There was no such testimony given which would warrant any such conclusion by counsel, court, or jury. The statement was grossly improper and highly prejudicial in character. Courts have uniformly condemned as improper statements made by a prosecuting attorney, which are not based upon, or which may not fairly be inferred from, the evidence. State v. Rodriguez, 31 Nev. 342, 102 P. 863; State v. Irwin, 9 Idaho, 35, 71 P. 609, 60 L. R. A. 716; L. R. A. 1918D, page 8, note.
We might cite a great array of authorities to the effect that it is an abuse of the high prerogative of a prosecuting attorney in his argument to make statements of facts outside of the evidence or not fairly inferable therefrom, and that to do so constitutes error. In fact, there is no dissent from this view. The only matter which troubles the court when such an error is urged is whether or not it was prejudicial to the defendant.
Such misconduct is due to a variety of causes-sometimes to inexperience of the district attorney, sometimes to his vaulting ambition, sometimes to the fact that he is innocently carried away by the exuberance of his own misguided zeal, and sometimes to the bias or prejudice of special counsel-but whatever contributes to such an abuse of a great power, it is the duty of the court, unsolicited, to reprimand instantly such misconduct, and it is the part of a fair-minded prosecutor, when reminded of his indiscretion, to do all in his power to right the wrong done, remembering that he is the representative of the sovereign people of the state, who seek only the administration of justice.
There is no excuse for such misconduct in any kind of a case. If the state has a strong case it is not necessary, and if it has a close case such misconduct is gross injustice to the defendant. Furthermore, prosecutors should remember that such misconduct often leads to the expense of burdensome retrials, which can but be a serious reflection upon their regard for the welfare of the taxpayer.
During the cross-examination of the defendant the district attorney asked the following question: "Did you ever use a gun on a man before?" Counsel for the defendant objected to the question and requested the court to admonish the district attorney not to ask defendant such question. The court did sustain the objection, but ignored the request to admonish the district attorney. The question is manifestly improper and unfair. Suppose the defendant had used a gun upon some man when he was fairly justified in so doing, should he have been compelled to answer the question and then present his defense? We might present many illustrations to show the gross impropriety of such a line of inquiry and the many difficulties which might arise therefrom. Counsel should have been admonished, to say the least.
In People v. Wells, 100 Cal. 459, 34 P. 1078, an almost identical situation was presented. The district attorney asked the defendant if he had not admitted in a letter the commission of a crime at a previous time. The court went into the question at length, quoting from many decisions to show the viciousness of the action of the district attorney. It said:
Other cases supporting this view are Leahy v. State, 31 Neb. 566, 48 N.W. 390; Holder v. State, 58 Ark. 473, 25 S.W. 279; State v. Trott, 36 Mo.App. 29; People v. Cahoon, 88 Mich. 456, 50 N.W. 384.
Many other cases might be cited to the same effect.
The trial court gave the following instruction:
"If a person kill another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given."
It is contended that the court committed error in giving this instruction. Since the judgment and order appealed from must be reversed for the reasons given, it is not necessary that we consider the correctness of this instruction, but in view of another trial we believe it advisable that we do so.
The attorney for the defendant objected to this instruction in the trial court upon the ground that it is applicable only in a case wherein the crime of murder is charged, and not in a case wherein an assault with intent to kill is charged. It is error to give an instruction which is not applicable to the crime alleged in the information. 16 C.J. 1041.
However, we do not say that the giving of this instruction constituted reversible error. It is not necessary to determine that question, in view of the situation. We think the court could have given an instruction relative to the plea of self-defense which would have been applicable to the case charged and proven, and which would have been free from error. Upon a retrial of the case that will be done, no doubt.
The defendant was not on trial upon a charge of...
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State v. Teeter
...discussion of this assignment of error No. 9, to quote the following from the excellent opinion by the late Mr. Justice Coleman, in State v. Cyty, supra, on page 259 of Nev. page 794 of 256 P.: 'Such misconduct is due to a variety of causes--sometimes to inexperience of the district attorne......
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...requires that trial courts exercise their discretionary power to control obvious prosecutorial misconduct sua sponte. State v. Cyty, 50 Nev. 256, 259, 256 P. 793 (1927); accord Viereck v. United States, 318 U.S. 236, 237, 63 S.Ct. 561, 562, 87 L.Ed. 734 (1943); Greenberg v. United States, 2......
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