State v. Loveless

• Decision Date: 16 August 1944
• Docket Number: 3410.
• Citation: 150 P.2d 1015,62 Nev. 312
• Parties: STATE v. LOVELESS.
• Court: Nevada Supreme Court

150 P.2d 1015

62 Nev. 312

STATE v. LOVELESS.

No. 3410.

Supreme Court of Nevada

August 16, 1944

Appeal from District Court, Fourth District, Elko County; James Dysart, Judge.

Floyd Loveless was convicted of murder, and he appeals.

Affirmed.

Taylor H. Wines, of Elko, and Oliver C. Custer, of Reno, for appellant.

Alan Bible, Atty. Gen., W. T. Mathews and Geo. P Annand, Deputy Atty. Gen., and George F. Wright, Dist. Atty of Elko, for respondent.

DUCKER Justice.

The defendant was convicted in the district court of the fourth judicial district of Elko County, of murder of the first degree, for the killing of one, A. H. Berning. The jury did not exercise their discretion to fix the penalty in their verdict, and the court, after denying a motion in arrest of judgment and a motion for a new trial, pronounced judgment of death against the defendant. He has appealed from the judgment and order denying his motion for a new trial.

This is the second appeal in the case. Upon the first appeal the judgment of death against the defendant was reversed and the cause remanded for a new trial. State of Nevada v. Floyd Loveless, 62 Nev. 17, 136 P.2d 236. On the first appeal a number of errors were assigned which were discussed in the respective briefs. These errors were all discussed also in the oral argument on appeal. As to these, the court, in its decision, found as follows: "In defendant's assignment of errors we find none that is well taken. At least there is none that tended to his prejudice in respect to a substantial right." But the court, on its own motion raised the question of the validity of the judgment and reversed it on the ground that it was void, and set the verdict aside.

A motion bye the state to strike from the records, files, bill of exceptions and defendant's brief, certain assignments of error, was argued and submitted for decision at the time of the oral argument on this appeal. The motion is leveled at assignments numbered 1, 3, 4, 5, 6, 8, 12, 13, and 14, and upon the ground that each was submitted to this court on the first appeal and decided adversely to defendant, and cannot again be considered. It is the contention of the state that the second conviction of defendant on the identical charge was tried upon the same set of facts, circumstances, evidence and testimony, and that the decision of this court on the first appeal is the law of the case as to the errors complained of in said assignments and are therefore not reviewable on this appeal.

If the facts in this regard are as claimed, the contention is well taken, for it is a firmly established general rule that "an adjudication on the first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same." 5 C.J.S., Appeal and Error, p. 1267, § 1821a; 3 Am.Juris. 541-544, § 985; Wright v. Carson Water Co., 22 Nev. 304, 39 P. 872; Crosman v. Southern Pac. Co., 44 Nev. 286, 194 P. 839; Bottini v. Mongolo, 45 Nev. 252, 200 P. 451; Barrett v. Franke, 48 Nev. 175, 228 P. 306. The rule is the same in criminal cases. 24 C.J.S., Criminal Law, p. 690, § 1840; 8 Cal. Jur. 568, Sec. 567; People v. Marshall, 209 Cal. 540, 289 P. 629; People v. Hatch, 163 Cal. 368, 125 P. 907; Johnson v. Common-wealth, 225 Ky. 413, 9 S.W.2d 53.

The first assignment of error made in defendant's opening brief herein, is to the order of the court in the juvenile department dismissing the juvenile court proceeding against the defendant, and permitting him to be proceeded against in accordance with the law of this state governing the commission of crime. We may resort to the record in the first appeal to ascertain if this point was determined. 3 Am.Juris. 544, Sec. 985; Barrett v. Franke, 48 Nev. 175, 177, 228 P. 306. The examination reveals that the same assignment was made therein as Exception No. 1, in appellant's opening brief, and discussed in his brief as well as in the state's answering brief.

Assignments 5 and 6 deal with the alleged error in admitting the testimony of witnesses S. O. Guidici and Frank Giocoechea concerning statements made by defendant in their presence at the time of his apprehension after the killing of Berning. Both witnesses being dead, their testimony was read from the transcript thereof at the first trial. It was therefore necessarily the same on both trials--and assignments 5 and 6 correspond with Exception Nos. 2 and 3 on the first appeal, the claims of error being that the statements amounted to a confession and that no proper foundation was laid for its admission. The exceptions were fully briefed in the opening and answering briefs on the first appeal.

Assignments 3 and 4 relate to the admission of testimony of witnesses H. B. Alexander and Dino Aiazzi. They were witnesses also at the first trial. These men were in company with witnesses Guidici and Giocoechea when defendant was apprehended, and their testimony was substantially the same as the testimony of the latter. The assignment and claim of error are that the statements made by defendant in their presence amounted to a confession and that a proper foundation for the admission thereof had not been laid. While Alexander and Aiazzi were also witnesses at the first trial, the admission of their testimony now complained of was not assigned as error on the first appeal. These assignments therefore cannot be urged now. To be availed of they should have been made on the first appeal, as the assignments concerning the testimony of Guidici and Goicoechea were made. They fall under the rule recognized in State v. Summers, 9 Nev. 399, of which the court said: "The error claimed in the present record, if existent, arose before the former appeal, and could and should have been therein considered, if so wished. It is too late to present it now; ***." 5 C.J.S., Appeal and Error, p. 1279, § 1825; 3 Am.Jur. 549, sec. 995. Moreover, if the admission of the testimony of Guidici and Goicoechea concerning defendant's statements was not error, it follows that the admission of substantially the same testimony by Alexander and Aiazzi, was not error under the rule of the former decision.

Assignment of error number 8 on this appeal, corresponds in all respects with Exception No. 5 of the first appeal. The error claimed in both instances goes to the admission of the testimony of witness Sheriff Harper as insufficient foundation for the introduction of the signed confession of the defendant. The testimony was the same on both trials, for the witness not being within the state at the time of the second trial, his testimony was read into the record from the transcript of the first trial. The assignment and exception were fully briefed on both appeals.

Assignments of error Nos. 12, 13, and 14 concern instructions number 18, 19 and 20 given on the second trial. They correspond to exceptions number 9, 10, and 12 of the first appeal, as to error in giving instructions number 15, 16, and 18, given on the first trial. A comparison of these instructions on both trials discloses that they are substantially the same. The assignments of error and exceptions were fully briefed on both appeals. We are of the opinion that the motion of the state to strike these assignments of error must, under the facts stated, and the rule applicable, be allowed. We do not understand defendant as questioning the general rule heretofore stated in this opinion, that after a case is remanded the court, on the second appeal will not consider those questions adjudicated on the first appeal. Consequently we will content ourselves with quoting from Wright v. Carson Water Co., supra, which states the rule and the reason thereof. The court said [22 Nev. 304, 39 P. 873]:

"The decision (on the first appeal) is the law of the case, not only binding on the parties and their privies, but on the court below and on this court itself. A ruling of an appellate court upon a point distinctly made upon a previous appeal is, in all subsequent proceedings in the same case upon substantially the same facts, a final adjudication, from the consequences of which the court cannot depart. The supreme court has no power to review its own judgments in the same case, except upon petition for rehearing, in accordance with the rules established for that purpose. Such are the decisions of more than two hundred cases, decided in more than thirty states of the Union, besides a great number of the federal courts, including the supreme court of the United States."

No rehearing is sought in the case at bar.

Defendant contends, however, that the finding of this court on the first appeal above set out and relied on by the state as decisive of the questions, is not so for the reason that it was unnecessary to the decision, and dictum.

There is no merit in this contention. The opinion expressed by this court on the former appeal as to the questions arising in the case, was not obiter dictum. It did not go beyond the case presented. The attention of the court was particularly called to them by defendant as points warranting a reversal "Dictum," said this court in an early case, "is defined to be an opinion expressed by a Judge on a point not necessarily arising in a case. *** The reason assigned for their not being entitled to weight is that usually they (dicta) are upon some point not discussed at bar--something to which the attention of the Court has not been particularly called--and something on which the Judge uttering them may not have reflected a moment before expressing his opinion." State of Nevada ex rel. Nourse v. Clarke, 3 Nev. 566. Such is not the case here. As we have pointed out, the questions were involved in the former appeal, briefs addressed to them by defendant and the state. They were orally argued and submitted to ...