State v. Dwyer

• Decision Date: 12 August 1907
• Docket Number: 1,712.
• Citation: 91 P. 305,29 Nev. 421
• Parties: STATE v. DWYER.
• Court: Nevada Supreme Court

91 P. 305

29 Nev. 421

STATE v. DWYER.

No. 1,712.

Supreme Court of Nevada

August 12, 1907

Appeal from District Court, Lander County.

Patrick Dwyer was convicted of murder, and appeals. Reversed, and change of venue and new trial ordered.

Jas. F Dennis, P. A. McCarran, and Wm. Woodburn, Sr., for appellant.

R. C Stoddard, Atty. Gen., and A. J. Maestretti, Dist. Atty., for the State.

NORCROSS J.

Appellant was convicted in the Third judicial district court in and for Lander county of the crime of murder in the first degree and sentenced to be hanged. From such judgment he appeals.

The principal question presented upon this appeal is whether or not the court erred in denying the defendant's various motions for a change of venue. Section 306 of the criminal practice act (Laws 1861, p. 467, c. 104) provides: "A criminal action, prosecuted by indictment, may be removed from the court in which it is pending, on the application of the defendant or state, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending." In the case of State v Millain, 3 Nev. 432, this court said: "There are few cases that present themselves to appellate courts where it is more difficult to determine upon any settled principles or rule of action than in these cases relating to a change of venue. By all it is admitted that there is a broad discretionary power allowed the court of original jurisdiction. But, whilst that court has such discretion, it is still a judicial and not an arbitrary, discretion. If that discretion is used in an arbitrary and oppressive manner, an appellate court is bound to correct the error. But to distinguish between what is and what is not an abuse of that discretion is often a very nice and difficult question There are two circumstances, the existence of either of which should entitle the defendant to a change of venue. The one is the impossibility of obtaining an impartial jury. The other is such a state of public excitement against the defendant that even an impartial jury would be likely to be intimidated and overawed by public demonstrations against the accused." Commenting upon a similar motion in the case of State v. McLane, 15 Nev. 372, this court said "On the whole, we think the application in this case for a change of venue was not materially stronger than that in the case of Millain, 3 Nev. 433, where the order overruling the motion was affirmed by this court. It is not shown in this case, any more than in that, that the parties threatening violence to the defendant were either numerous or influential; and we do not understand that the mere prevalence of a belief in the guilt of a prisoner, however widely diffused, is a circumstance from which it must be inferred that a jury would be intimidated or overawed." Again, in the case of State v. Gray, 19 Nev. 215, 8 P. 457, this court had the following to say in reference to a motion for change of venue: "Defendant applied for a change of venue on the ground of prejudice existing against him in the county where the indictment was pending which would prevent him from having a fair and impartial trial. The application was based upon affidavits tending to establish the fact alleged, and resisted by counter affidavits. It is unnecessary to consider the contents of the affidavits. The district court overruled the motion for the time being, until it could be shown by an examination of a sufficient number of jurors that a fair and impartial jury could not be obtained. After examining 81 persons a jury was impaneled. The statute authorizing a change of venue in criminal cases provides that, before granting the order, the court shall be satisfied that the representations of the moving party are true. The question whether a fair and impartial jury could be obtained depended largely upon the opinions of witnesses. Opinions differed widely, and the court adopted a very satisfactory test to ascertain the fact. The practice pursued was approved in State v. Millain, 3 Nev. 433, and by the Supreme Court of California in People v. Plummer, 9 Cal. 299, and in People v. Mahoney, 18 Cal. 181." The foregoing furnishes about all the light we may gather from the decisions of this court upon a question like that here presented. Outside of the fact that every case where a change of venue is sought must come within certain broad principles, each case must be determined upon its own particular facts.

The defendant's motion for a change of venue under the provisions of the statute was first made on September 26, 1906, after two days had been spent in examining jurymen, and after 81 jurymen had been examined upon their voir dire, with the result that only 11 had been passed, 3 of whom were passed over defendant's challenge for cause. At this time none of the 8 peremptory challenges allowed to each side had been exercised. The motion was based upon a lengthy affidavit of the defendant, affidavits of defendant's three attorneys, and the testimony of witnesses taken before the court. Affidavits and the testimony of witnesses in opposition to the motion were also offered by the state. After considering the evidence in support of the motion at length the court said: "I think I shall overrule the motion, with permission to the defense to renew it at the close of the examination of the jurors in attendance to-morrow." Pursuant to the ruling of the court, on September 29th, and after 103 jurymen had been examined and the jury list exhausted without securing a jury, the motion for a change of venue was renewed, and based upon the additional showing of the jurymen examined since the motion was first made. The court examined the sheriff as to the number of electors who in his opinion were left in the county who would be subject to jury duty, and the sheriff gave it as his opinion that there were 150, approximately. The court denied the motion, and a recess was taken until 10 o'clock a. m. on October 1st, at which time the court notified counsel that he had submitted to the county commissioners the selection of 150 more names for jurymen. At the session of court held on the 1st day of October the motion for change of venue was again renewed, and denied by the court. The court announced that he would issue a venire for 100 names, stating at the same time: "I do not know whether you [the sheriff] can find 150 in the county or not." A recess was then taken until October 10th. On the day last mentioned court convened, and all the new veniremen responded to their names, excepting 26, who were returned as sick, out of the county, or not served. Immediately after the convening of court counsel for defendant presented a motion, supported by the affidavit of the defendant, for leave to examine the 8 jurors who had been passed and who were in the box at the time the recess was taken on the 1st of October, because of a certain alleged threatened assault upon the jail to secure the person of the defendant by violent means, which alleged threatened assault it was alleged might have come to the knowledge of the jurymen in the box, and, further, because of certain remarks of the county clerk made in the hearing of certain of the talesmen. The hearing upon this motion was in the absence of the jury. T. A. Oliver, the deputy sheriff and jailer, testified that during the recess of the court he had been informed by George Watt, an ex-sheriff of the county, "that there was going to be an effort made, or very likely to be an effort made, to take the man from the jail and lynch him, and I had better be very cautious and get help if I could. He (Watt) said he could not find out the parties, but he was told that the man would not be allowed to leave town; that it was either lynch him or break the county. I asked him if he could do nothing in the matter, and he said he did not know whether he could or not. If it was possible he would do so. He came to me the next evening, and told me there would be nothing done at present." The witness further testified to the effect that Watt informed him "that he did not know where the parties were coming from, but that he was satisfied that they were from out of town; that he (Watt) had been asked to take part." Mr. Watt was out of town at the time the motion was presented, and, although a subpoena had been issued for him, the sheriff had been unable to serve it, and consequently the testimony of Mr. Watt was not at the time obtainable.

With reference to the matter of the statements of Mr. Dron, the county clerk, it had previously been shown by affidavit and the testimony of witnesses that Dron had remarked to one of defendant's counsel, within the hearing of the talesman "I'll tell you one thing, if I had been in Austin when this occurred, you would not have been put to the trouble of trying the case." Because of this remark by the clerk, the court ordered him to provide a deputy and refrain from attendance upon the court. With regard to the remark in question the court, in considering the motion now under discussion, said: "You have already made a showing that the eight jurors in all probability heard the statement made by Mr. Dron, and, as it was not contradicted, it must be accepted as a fact." Upon the showing thus made the motion for leave to re-examine the jurors then in the box was denied, and the examination of the talesmen on the new venire was proceeded with, and a jury finally obtained; the defendant in the meantime having exhausted all his peremptory challenges. Upon finally securing the jury counsel for defendant asked for and were granted until the following day to prepare affidavits in support of a renewal of the motion for a change of venue. The final motion for change of venue was as follows: "The plaintiff will please take notice...