State v. Depoister

• Decision Date: 17 February 1891
• Docket Number: 1,324.
• Citation: 25 P. 1000,21 Nev. 107
• Parties: STATE v. DEPOISTER.
• Court: Nevada Supreme Court

25 P. 1000

21 Nev. 107

STATE v. DEPOISTER.

No. 1,324.

Supreme Court of Nevada

February 17, 1891

Appeal from district court, Humboldt county; A. L. FITZGERALD Judge.

M. S Bonnifield, for appellant.

The Attorney General, for the State.

MURPHY J.

The defendant was indicted, tried, and convicted for the crime of rape upon the person of Bertha May Sadler, of the age of about seven years. The appellant contends that the judgment should be set aside, and a new trial granted, on the following grounds: That the court erred in permitting the prosecuting attorney to read to the jury the complaint upon which the warrant of arrest was issued, and the depositions of Bertha May Sadler, and Lou Alexander. Because no complaint was laid before the magistrate of the commission of a public offense; the magistrate did not examine, on oath, the complainant or prosecutor, nor any witness, and did not require the deposition of any witness to be reduced to writing and subscribed by the witness, or otherwise; it does not appear that any such examination was made or any such deposition taken; the alleged complaint is not signed by the complainant; his alleged mark is not witnessed as required by law, and is not witnessed at all. The complaint is sufficient in form and substance, --it states the title of the court the name of the party accused, and the nature of the offense charged in ordinary and concise language, and demands the issuing of a warrant for the arrest of the party named therein. The other objection to the complaint is that the party signing his name to the complaint, by making his mark leaving the name itself to be written by another hand, must have his signature attested by a subscribing witness. The complaint is made in the presence of and filed with the magistrate for his information, and if he is satisfied that a crime has been committed it is his duty to issue a warrant for the arrest of the party named therein, and to notify the accused of the nature of the charge, and the name of the party making the same. The complaint appears to have been made out by or in the presence of the magistrate, the complainant signing the same with his mark, some one else writing the full name of complainant. He then swore to the same, and the magistrate certifies that the same was subscribed and sworn to before him, etc. We think this is all that the law requires. The case of Com. v. Sullivan, 14 Gray, 98, is directly in point, wherein the court said: "But it by no means follows that the signature is not valid without such attesting witness, *** and in reference to complaints to a justice of the peace, presented by the complainant personally, and accompanied by taking the usual oath to the complaint before such justice, that the same is true, there can be no such necessity. The party virtually acknowledges the complaint as duly signed by him. This must clearly obviate all necessity of further proof of the signature." See, also, Com. v. Quin, 5 Gray, 478. The magistrate is not compelled to examine other witnesses than the complainant before issuing his warrant of arrest. All that the statute requires is that the magistrate should be satisfied that a crime had been committed within his jurisdiction.

The objections urged against the reading of the depositions of Bertha May Sadler and Lou Alexander to the jury are as follows: That they were irrelevant, immaterial, and incompetent, and that the proper foundation had not been laid for their introduction, and particularly in this: It does not appear that at the examination witness Bertha was examined in the presence of the defendant, or that he had the privilege of cross-examination; it does not appear that the testimony of said witness was read over to her, and corrected, or that she was given opportunity to correct the same as she might desire; it does not appear that said Bertha subscribed her alleged deposition, or that she refused to sign it. No reason is assigned for such refusal, if any. The alleged mark of said Bertha to said deposition is not witnessed as required by law, or at all. Said alleged deposition is not duly authenticated, is not authenticated at all. Neither of said papers have the slightest ear-mark of a preliminary examination, or of having any connection therewith. They are not certified to be, nor do they purport to be, any part or have any connection with a preliminary examination. The objections to the introduction of the deposition are without any real merit. Section 4036, Gen. St. reads: "The witnesses shall be examined in the presence of the defendant, and may be cross-examined in his behalf. If either party so desire, the examination shall be by interrogatories, direct and cross: provided, by consent of parties, the testimony may be reduced to writing in narrative form. The testimony so taken may be used by either party on the trial of the cause, and in all proceedings therein, when the witness is sick, out of the state, dead, or when his personal attendance cannot be had in court. When the testimony of each witness is all taken, the same shall be read over to the witness, and corrected, as may be desired, and then subscribed by the witness; or, if he refuses to sign it, the fact of such refusal, and any reason assigned therefor, must be stated, and the same shall be tested by the magistrate. And such testimony, so reduced to writing, and authenticated according to the provisions of this section, shall be filed by the examining magistrate with the clerk of the district court of his county. ***" The caption of said deposition is as follows: "In the justice court, Union township, Humboldt county, Nev. The State of Nevada, Plaintiff, vs. Samuel G. Depoister, Defendant. Bertha May Sadler, being duly sworn, deposes and says." Then follows the testimony given by question and answer, concluding with the signature and jurat, as follows: "BERTHA MAY SADLER, her X mark. Subscribed and sworn to before me this 6th day of Aug., 1889. E. S. ARCHER, J. P., and witness to the above signature." The court, over the objections of the defendant, permitted the prosecuting attorney to place on the stand E. S. Archer, the committing magistrate, and W. C. Owens, who wrote down the testimony at the preliminary examination, and they both testified to the fact that the complaint was read over to the defendant; that the depositions were taken and reduced to writing in the presence of the defendant; and that he was given an opportunity to cross-examine the witness Bertha May Sadler; that the testimony was read over to her, and she was given an opportunity to correct the same; and that she signed the same by making her mark in the presence of the witnesses, and the same is attested by the committing magistrate as a witness to her signature, and the mere fact that the magistrate wrote the word, "signature," instead of "mark," or that he has written the words "witness to the above signature" below the jurat, is a mere informality. Webb v. State, 21 Ind. 237. The same is true as to the deposition of Lou Alexander, with the addition that it does appear from the record that the defendant did cross-examine this witness while on the witness stand at the preliminary examination. At common law the certificate of a public officer was not receivable in evidence. The provision making the certificate of the justice admissible is founded upon the reason of statutes authorizing proof of public documents by copies certified by the officer having their custody. "The reason of admitting a copy to be evidence is the inconvenience to the public of removing records which may be wanted in two places at the same time." 1 Starkie, Ev. *251. And so it may be said, as one of the reasons for making the certificate of the justice admissible, that inconvenience to the public would result by compelling his attendance as a witness at a time when the duties of his office required his attention. The purpose of the statute is to afford a reasonable and convenient method of proof. The statute does not in terms exclude other evidence, and we see no reason why the common-law method of proof should not be admitted. Statutes containing provisions similar to those of section 4036 have existed for the last 300 years in England, and have been generally adopted by the states of this Union, and we are not aware that the established rules of decision of any court construe them as abolishing the common-law mode of proof. In the case of People v. Carty, 77 Cal. 214, 19 P. 491, upon the trial, the prosecution offered in evidence the short-hand reporter's transcript of his notes of the testimony taken before the committing magistrate. The certificate attached to this transcript was to the effect that it was a "full, true, and correct transcript of the short-hand notes taken by me herein." One of the objections on the trial was that the document was not properly certified. The reporter was then permitted to be examined as a witness, and he testified "that the document was a correct transcript of the notes taken by him of the testimony and proceedings at the examination before the magistrate." The supreme court held that the document was not admissible, not

because the reporter was sworn as a witness to correct his certificate, but because, after he was placed upon the stand he did not refresh his memory from the writing, and then testify as to what occurred at the examination, and that the notes as taken by him at such examination were correct. He having merely testified as to the correctness of the transcribing, this was not sufficient. In the case of People v. Dowdigan, 67 Mich. 96, 38 N.W. 920, where the reading of a deposition to the jury was objected to on the grounds that the same had not been read over to the subscribing witness, the...