State v. Feinzilber

Decision Date29 March 1960
Docket NumberNo. 4186,4186
PartiesSTATE of Nevada, Appellant, v. Henri FEINZILBER, Respondent.
CourtNevada Supreme Court

Roger D. Foley, Atty. Gen., George M. Dickerson, Las Vegas, for appellant.

John F. Mendoza, Las Vegas, for respondent.

PIKE, Justice.

Appeal by the state from an order of the trial court granting defendant's motion to dismiss an information charging defendant with assault with intent to kill, on the ground that defendant had been once in jeopardy. Defendant had previously been acquitted, after a jury trial, on the charge of robbery of one Dorothy Cimino.

Counsel for the state and respondent in the trial court stipulated that Feinzilber had been charged with robbery by force and violence, and found not guilty, and that the same evidence introduced in that case would be required at the trial of the defendant on the subsequent charge of assault with intent to kill charged in the second information.

The prosecution, on the robbery charge, alleged a violation of N.R.S. 200.380, and on the subsequent assault with intent to kill a violation of N.R.S. 200.400.

The charging portion of the information in the robbery case alleged that the defendant on December 13, 1957, '* * * did then and there willfully, unlawfully, and feloniously take personal property, to wit: A black purse containing approximately $100 lawful money of the United States, and personal effects, from the person of Dorothy Cimino by use of force and violence and against the will of the said Dorothy Cimino * * *.' The corresponding portion of the information in the instant case charges that on the same date the defendant '* * * did then and there willfully, unlawfully, and feloniously assault Dorothy Cimino with a deadly weapon, to wit, a .38 Calibre Smith and Wesson revolver, with the intent to kill the said Dorothy Cimino.'

The evidence at the robbery trial shows that at about 8 o'clock in the evening, December 13, 1957, Dorothy Cimino was walking along the edge of the highway near Las Vegas, Nevada, toward a bus stop. The highway was well traveled and lighted. She was accosted by a man who was the sole occupant of the automobile he was driving along the highway in the same direction that she was walking. He asked her if she wanted a ride. She accepted and entered the front seat of the car. In the ensuing conversation she told the driver that she wished to go to Las Vegas, a few miles distant in the direction they were traveling. However, after indicating to her that he was interested in feminine companionship, over her protests he made a U-turn and drove off in the opposite direction, away from Las Vegas. He ignored her protests and requests that he let her out of the car. She refused his suggestion that they stop at a hotel on the highway farther from Las Vegas. Over her protests, he then drove to an unlighted area off the highway. He asked the victim to sit closer to him and, upon her refusal, he stated that he had a gun, and proceeded to shoot her five times with the revolver. Later, four of the five bullets which struck her were recovered, two being removed from her body and two found within the car. After the shooting he demanded that she give him her purse, which she did. After receiving the purse containing the money, as referred to in the information filed in the robbery case, the man then beat her about the head with the 38-calibre revolver referred to in the assault with intent to kill information.

The victim testified that, after her assailant had shot her a number of times with the revolver she heard it 'click' and knew that it was empty. After that he demanded her purse and she gave it to him. Thereafter he beat her with the revolver, from which all the cartridges had been fired.

When defendant was arrested in Phoenix, Arizona, the car was found in his possession and blood of the same type as that of the victim and hair of the same color and characteristics as the victim's were found on clothing in his possession, the ownership of which he admitted. An expert witness in the field of ballistics testified that the two bullets removed by surgery from the victim's body were fired from the same firearm as the two bullets found in the car. Defendant testified in his own behalf to the effect that he had loaned the automobile to a man hitchhiker during a period of about three hours while defendant was gambling in a Las Vegas casino, and denied being in the car when the shooting and beating took place, although the victim identified him as her assailant.

The state contends that the offense of robbery committed upon Dorothy Cimino was completed when the robber demanded and received her purse containing the money, and that the assault and beating about the head with the unloaded firearm was the assault with the intent to kill Dorothy Cimino charged in the instant information. Appellant also contends that the trial and acquittal of respondent on the robbery charge was not such a placing of respondent into jeopardy as to sanction the trial court's order of dismissal. In granting respondent's motion to dismiss, the trial court stated as its basis for such order its finding that the essential ingredients or elements of the assault with intent to kill charge were identical or substantially the same as with the former charge of robbery upon which respondent had been acquitted. Art. 1, § 8 of the Constitution of the State of Nevada reads in part: 'No person shall be subject to be twice put in jeopardy for the same offense.' N.R.S. 169.170 provides, 'No person can be subject to a second prosecution for a public offense for which he has once been prosecuted and duly convicted or acquitted.'

Counsel for respondent, in arguing the motion for dismissal before the trial court, had referred to the following Nevada statutes:

N.R.S. 173.260, providing that different offenses may be charged in the same indictment as long as they are in separate counts and '* * * all relate to the same act, transaction or event * * *'; that the prosecution is not required to elect between such different offenses or counts in the information, but the defendant may be convicted of one of the offenses charged.

N.R.S. 174.390, which provides that when the defendant is convicted or acquitted or has once been placed in jeopardy upon an information, such conviction, acquittal or jeopardy is a bar to another information for the offense charged in the former, or '* * * for an offense necessarily included therein * * *.'

N.R.S....

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9 cases
  • United States v. Chandler
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 20, 2014
    ...the taking of the property of another from his person or presence through the application of force or fear.” State v. Feinzilber, 76 Nev. 142, 350 P.2d 399, 401 (1960) (discussing Nev.Rev.Stat. § 200.380(1)). By comparison, Nevada's conspiracy statute, Nev.Rev.Stat. § 199.480, simply states......
  • State v. Hall
    • United States
    • Idaho Supreme Court
    • June 25, 1963
    ...prosecution for the other on that ground. State v. McDonald (Or.) 365 P.2d 494; State v. LaPorte (Wash.) 365 P.2d 24; State v. Feinzilber (Nev.) 350 P.2d 399; People v. Candelaria, 153 Cal.App.2d 879, 315 P.2d 386; People v. Owens, 117 Cal.App.2d 121, 255 P.2d 114; Rodriguez v. Superior Cou......
  • State v. Robinson
    • United States
    • Minnesota Supreme Court
    • March 2, 1962
    ...610.21 and 631.01.2 State v. Orth, 106 Ohio App. 35, 153 N.E.2d 394, appeal dismissed, 167 Ohio St. 388, 148 N.E.2d 917; State v. Feinzilber, 76 Nev. 142, 350 P.2d 399; Adams v. United States (5 Cir.), 287 F.2d 399. See, People v. Rodgers, 184 App.Div. 461, 464 to 466, 171 N.Y.S. 451, 453 t......
  • Petition of DuBois, 5611
    • United States
    • Nevada Supreme Court
    • September 27, 1968
    ...elements and different purposes. Conviction under one would not necessarily lead to conviction under the other. See State v. Feinzilber, 76 Nev. 142, 350 P.2d 399 (1960). To constitute former jeopardy, the earlier offense must have been one necessarily included in the later. State v. Holm, ......
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