State v. Fouquette

Decision Date10 August 1950
Docket NumberNo. 3564,3564
CourtNevada Supreme Court

Lewis, Hawkins & Cannon and John Bonner, all of Las Vegas, and E. R. Miller, Jr., of Ely, for appellant.

Alan Bible, Atty. Gen.; Geop. P. Annand and Robert L. McDonald, Deputy Attys. Gen.; Robert E. Jones, Dist. Atty. of Clark County, Las Vegas; and J. K. Houssels, Jr., Deputy Dist. Atty., Las Vegas, for respondent.

McKNIGHT, District Judge.

Appellant was convicted of murder in the first degree and his punishment fixed at death by the jury. His appeal is from the judgment and from the order denying his motion for new trial.

The pertinent facts will be stated in discussing some of the many assignments of alleged error.

Appellant first contends that the court, in violation of and contrary to the provisions of the 5th, 6th and 14th Amendments to the Constitution of the United States, Article I, Section 8, of the Nevada Constitution, and Section, 10654, N.C.L.1929, erred in denying defendant's application to bring two witnesses from California to Nevada, at the expense of Clark County, to testify in his behalf.

The 5th and 6th Amendments, relied upon by appellant, as well as all of the remaining first eight Amendments to the Federal Constitution, have reference only to powers exercised by the government of the United States, whether by Congress or by the judiciary, and are in no wise a restriction upon the power of the states or in any respect applicable to state courts. Eilenbecker v. District Court, 134 U.S. 31, 10 S.Ct. 424, 35 L.Ed. 801, 803; State of Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445, 24 S.Ct. 703, 48 L.Ed. 1062, 1065; State v. Jones, 7 Nev. 408, 415; State v. Chin Gim, 47 Nev. 431, 442, 224 P. 798; State v. Squier, 56 Nev. 386, 399, 54 P.2d 227.

The portion of the 14th Amendment to the Constitution of the United States and the portion of Article I, Section 8, of the Nevada Constitution, relied upon by appellant, provide, in effect, that no person shall be deprived of life, liberty, or property, without due process of law.

The terms 'due process of law' and 'law of the land' are synonymous. Vol. 13, Words and Phrases, Perm.Ed., pages 535, 536; 16 C.J.S., Constitutional Law, page 1142, § 567, note 15.

The 'law of the land,' as applicable to criminal cases in state courts, necessarily means the law of the state where the offense is committed and where the trial takes place. Anderson v. State, 8 Okl.Cr. 90, 126 P. 840, Ann.Cas.1914C, 314, 321; Prescott v. State, 56 Okl.Cr. 259, 37 P.2d 830, 833; In re McKee, 19 Utah 231, 57 P. 23, 27; see, also, In re Krug, C.C., Wash., 79 F. 308, 311; Lamar v. Prosser, 121 Ga. 153, 48 S.E. 977; 16 C.J.S., Constitutional Law, page 1171, § 579, note 12.

'Due process of law' not only requires that a party shall be properly brought into court, but that he shall have the opportunity when in court to establish any fact which, according to the usages of the common law or the provisions of the Constitution, would be a protection to himself or property. Wright v. Cradlebaugh, 3 Nev. 341, 349; Persing v. Reno Stock Brokerage Co., 30 Nev. 342, 349, 96 P. 1054.

At common law, in cases of felony, a defendant could not demand, as a matter of right, compulsory process for his witnesses. Pittman v. State, 51 Fla. 94, 41 So. 385, 8 L.R.A.,N.S., 509, 515; Osborn v. People, 83 Colo. 4, 262 P. 892, 893; United States v. Reid, 12 How. 361, 53 U.S. 361, 13 L.Ed. 1023, 1024; Underhill's Criminal Evidence, 4th ed., page 916, sec. 441, note 6; 70 C.J., Witnesses, page 35, sec. 5, note 28; 14 Am.Jur., Criminal Law, page 881, sec. 163, note 19.

The portion of Section 10654, N.C.L., 1929, relied upon by appellant, provides that in a criminal action the defendant is entitled to produce witnesses on his behalf.

Certainly this statute does not entitle a defendant to have witnesses brought into court at public expense. Roberts v. State, 94 Ga. 66, 21 S.E. 132, 135; Whittle v. Saluda County, 59 S.C. 554, 38 S.E. 168, 169; Casebeer v. Hudspeth, Warden, 10 Cir., 121 F.2d 914, 916; State v. Waters, 39 Me. 54, 61; Henderson v. Evans, 51 S.C. 331, 29 S.E. 5, 40 L.R.A. 426; State v. Nathaniel, 52 La.Ann. 558, 26 So. 1008, 1010; Greene v. Ballard, 174 Ky. 808, 192 S.W. 841, 843; 14 Am.Jur., Criminal Law, page 882, sec. 166; Note, 8 L.R.A.,N.S., 509.

The 'Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases,' Sections 11359 to 11359.06, N.C.L., 1931-1941 Supplement, is not cited by appellant.

Although no case directly in point has been found, it is clear that this statute, providing, as it does, that specified sums for fees and mileage shall be paid or tendered to non-resident witnesses summoned to attend and testify in criminal prosecutions in this state, but not providing, either expressly or by implication, that such witnesses summoned on behalf of the defendant shall be brought in without expense to him, does not confer upon the courts of this state authority to procure the attendance and testimony of witnesses from without the state for the defendant in any case at the expense of the public. Greene v. Ballard, supra, 174 Ky. 808, 192 S.W. 841, 843. See, also, authorities supra.

But this matter need not be further discussed, because the trial court actually permitted the defendant to bring four witnesses from California at the expense of Clark County, and denied defendant's motion to bring the two additional witnesses from that state at public expense, only because the testimony of both, as shown by their affidavits upon which the motion was based, was incompetent and immaterial.

Appellant's novel contention, as expressed in his reply brief, that: 'To limit the question strictly to the matters set forth in the affidavits submitted in support of the motion was also improper as no doubt other pertinent evidence could have been elicited from such witnesses at the trial, had the accused been allowed to produce them,' is neither supported by authority nor based on reason.

Material witnesses from without the state may, under certain conditions, be commanded to attend and testify in criminal prosecutions in the state. Obviously this does not mean that all persons are material witnesses who are so designated by either party, or because they might possibly give pertinent evidence at the trial. Whether the witnesses are material can only be determined by the judge after hearing. At such hearing a showing that the testimony to be given by the witnesses is material must be made. Witnesses whose testimony is shown by their affidavits to be immaterial, as in this case, are not material witnesses, and should not be summoned to attend and testify. Secs. 11359-11359.06, N.C.L.1931-1941 Supplement. See, also, Palmer v. State, 165 Ala. 129, 51 So. 358, 359; State v. Pope, 78 S.C. 264, 58 S.E. 815, 816; 70 C.J., Witnesses, pages 37-38, sec. 8, note 69.

Appellant next contends that the court erred in denying his application for change of venue.

The statute under which the application was made reads: 'A criminal action prosecuted by indictment or information may be removed from the court in which it is pending, on application of the defendant or state, on the ground that a fair and impartial trial cannot be had in the county where the indictment or information is pending.' Sec. 10913, N.C.L.1929.

The existence of either of two circumstances should entitle a defendant to a change of venue: (1) The impossibility of obtaining an impartial jury; or (2) 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. State v. Millain, 3 Nev. 409, 432; State v. Casey, 34 Nev. 154, 164, 117 P. 5.

After considering affidavits and newspaper articles offered in support of the application and oral testimony offered in opposition thereto, the court properly held that the evidence was not sufficient to justify a change of venue because of the existence of any great public excitement against the defendant, and that the impossibility of obtaining a fair and impartial jury could best be determined when the jurors were examined. The application was thereupon denied, 'without prejudice on the part of the defendant to renew his motion at a later time.'

The method adopted by the court to determine whether or not a fair and impartial jury could be obtained has been approved by this court. State v. Gray, 19 Nev. 212, 215, 8 P. 456; State v. Teeter, 65 Nev. 584, 200 P.2d 657, 671, 690.

The jury, including one alternate juror, were empaneled and sworn after the examination of only thirty-four veniremen, the allowance of only eleven challenges for implied bias, four of which resulted from challenges by the State, and the retention by appellant of two unused peremptory challenges, and without any renewal by appellant of his motion for change of venue. The jurors selected apparently were satisfactory to the appellant, or doubtless he would have renewed the motion. State v. Teeter, supra, 65 Nev. 584, 200 P.2d 657, 671, 689-690.

A mere reading of the decision in State v. Dwyer, 29 Nev. 421, 91 P. 305, the only case relied upon by appellant, is sufficient to show that the facts in that case are so materially different from those in the case at bar that such case has no application whatever.

Moreover appellant cannot now claim that error was committed by the court in denying his application for change of venue, as all objections to such denial were clearly waived by appellant, by his failure to renew the application after express permission to do so. People v. Fredericks, 106 Cal. 554, 39 P. 944, 945; People v. Staples, 149 Cal. 405, 86 P. 886, 888; 22 C.J.S., Criminal Law, page 349, § 222, notes 79-80; 7 Cal.Jur., Criminal Law, page 918, sec. 64, note 2.

Appellant next contends that the court erred in disallowing challenges for...

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