State v. Luhano

• Decision Date: 18 June 1909
• Docket Number: 1,802.
• Citation: 102 P. 260,31 Nev. 278
• Parties: STATE v. LUHANO et al.
• Court: Nevada Supreme Court

102 P. 260

31 Nev. 278

STATE v. LUHANO et al.

No. 1,802.

Supreme Court of Nevada

June 18, 1909

Appeal from District Court, Washoe County.

Savatore Luhano and another were convicted of robbery, and they appeal. Affirmed.

G. W Shutter-Cottrell, for appellants. R. C. Stoddard, for the State.

NORCROSS C.J.

Appellants were convicted in the Second judicial district court of the state of Nevada, in and for the county of Washoe, of the crime of robbery. From the judgment, and from an order denying their motion for a new trial, they appeal.

The first contention made by appellants is that the indictment is insufficient to charge the offense of robbery. The indictment, after entitlement, reads: "The defendants Savatore Luhano and Servanti Davis, above named, are accused by the grand jury of the county of Washoe, state of Nevada of a felony, to wit, committed as follows, to wit: That said defendants, on the 13th day of April, A. D. 1908, or thereabouts, and before the finding of this indictment, at the said county of Washoe, state of Nevada, did willfully unlawfully, feloniously, violently, and by force and intimidation, take from the person of Chervia Lazaro, the sum of $1,000, of the value of $1,000, lawful money of the United States of America, which said money was then and there the property of the said Chervia Lazaro." Robbery is defined by statute as follows: "Robbery is the felonious and violent taking of money, goods or other valuable thing from the person of another by force or intimidation." Comp. Laws, § 4714. We think the foregoing indictment sufficient under the provisions of our statute. Comp. Laws, §§ 4200, 4201, 4208, 4209.

The principal contention made by the counsel for appellants is that the evidence does not justify the verdict, in that it fails to show that the money was taken from the complaining witness, Chervia Lazaro, by force or intimidation. Prior to the case going to the jury counsel for defendants, appellants herein, requested the court to advise the jury to return a verdict of not guilty. Judge Pike, who tried the case, being then of the opinion that the evidence was insufficient to constitute the crime of robbery, advised the jury to acquit the defendants in accordance with the provisions of section 376 of the criminal practice act, which reads: "If, at any time after the evidence on either side is closed, the court deem the same insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury shall not be bound by such advice nor shall the court for any cause prevent the jury from giving a verdict except as provided in sections three hundred and sixty-one, three hundred and sixty-two, three hundred and sixty-six, and three hundred and sixty-eight." Comp. Laws, § 4341. The jury disregarded the advice of the trial judge, and returned a verdict of guilty as charged in the indictment. Upon the same question being presented to the trial judge on the motion for a new trial, he changed his opinion as to the sufficiency of the evidence, and denied the motion. It must be conceded that the evidence in this case presents a state of facts which approaches very closely the border line of what is, or what is not, robbery. Upon mature reflection the trial judge reached what we think was a correct conclusion.

All the parties to the crime are Italians, and the complaining witness was unacquainted with the English language, and gave his testimony through an interpreter. It is very clear, from the testimony given, that the two defendants undertook to obtain from the said Lazaro the sum of $1,000 by what may be called a confidence game. After promising him that, if he would procure the sum of $1,000, they would double it for him, and after working upon his credulity, and after supplying him with food and liquor, he was induced to go to their room in a lodging house in the city of Reno. The sufficiency of the evidence to constitute robbery must be determined upon what transpired within this room. The witness Lazaro testified through his interpreter concerning this portion of the affair as follows: "He (Lazaro) got the $1,000, stopped at Moana Springs, and they got a drink. He came to Reno again and they got him something to eat and drink again. About 2 o'clock they brought him up to a room, and he sat in a chair in the room, and they sat there, too. He said the small gentleman there told him to show him a thousand dollars, and he would double it for him. He said he put his hand up and took it from him, and the other fellow came over at him with a knife in front of him, and he lost his sense. He said he gave him something. *** Q. Which one do you say came over after him with a knife? A. The heaviest one. Q. One of the defendants in this action? A. Yes, sir. Q. Now, are those the two men that took him up to the room? A. Yes, sir. Q. And all of your testimony about the two men, you mean the two defendants, do you? A. Yes, sir; them two men there. *** Q. At the time they took this money away from you, what did the money consist of? A. Gold. Q. How much? A. A thousand dollars. Q. What kind of money? A. Twenty dollar gold pieces. Mr. Ayers: Q. When they came after you with that knife, were you frightened, or were you not frightened? A. He was frightened. Mr. Ayers: Q. Did they say anything else to you at the time of taking the money away from you? A. They told me to keep still. Q. Did they say anything else? A. He says they went out the door. *** Mr. Ayers: Q. Where was the money at the time they took it? A. He said he had it in his pocket. Q. What pocket? The Court: Get up and show the jury his pocket. A. This pocket--the inside coat pocket [shows jury]. Mr. Ayers: Q. Which one, if either, took that out of there, that money out of that pocket? A. He said the little fellow. Q. Did they, or did they not, go immediately out of the door after taking the money? A. He said they stayed there a little while or a minute, and then they left. ***"

Cross-Examination *** "Q. Did they show him anything? A. They did not show him anything in the room; showed him some money at Moana Springs, he said. *** Q. You were pretty well drunk, were you not, at the time you went up to the hotel? A. No, sir; he said he was not drunk, but he lost a little sense. *** Q. When he gave these men this $1,000, ask him if these men--these defendants--gave him anything in return for it. A. He said they took the money from him. He did not give it to them. Q. He did not give it to them? A. No, sir. *** Q. Where was he sitting, or how was he sitting, and upon what was he sitting, when they took this $1,000 from him? A. He said he sat on a chair. *** Q. Were the defendants in one, too? A. He said one of them sat down a little. Q. Which one of them sat down? A. The little fellow. *** Q. Now, which one went to him to get the $1,000? A. He said the little fellow came and got the $1,000. Q. When the little fellow went to...