State v. Petty
Citation | 108 P. 934,32 Nev. 384 |
Decision Date | 19 May 1910 |
Docket Number | 1,859. |
Parties | STATE v. PETTY. |
Court | Supreme Court of Nevada |
Appeal from District Court, Washoe County.
C. C Petty was convicted of murder in the first degree, and appeals. Affirmed.
F. B Mayers, for appellant. R. C. Stoddard, Atty. Gen., L. B Fowler, Deputy Atty. Gen., W. Woodburn, Jr., Dist. Atty., and M. B. Moore, Asst. Dist. Atty., for the State.
On the 9th day of March, 1909, upon a public street in the town of Sparks, Washoe county, defendant killed his wife, May Petty, by shooting her five times with a pistol. He was indicted for this uxoricide, and upon trial a verdict was returned of murder in the first degree, with punishment fixed at death. Judgment was entered in accordance with the verdict. From the judgment and from an order denying defendant's motion for a new trial, defendant has appealed.
Upon the trial defendant relied upon the defense of sadistic insanity. In support of this defense, the defendant went upon the stand and testified in his own behalf. He also called as a witness Dr. A. H. Hepner, who qualified as an expert, and testified, among other things, to having made a physical examination of the defendant prior to the trial, and detailed certain physical conditions existing in the defendant, which, in part, formed a basis for his opinion that at the time of the killing the defendant was insane. For the purposes of rebuttal, counsel for the state requested the court to appoint three physicians and to order that the defendant be submitted to an examination by them relative to the physical conditions detailed in the testimony of Dr. Hepner. Over the objection of counsel for defendant, the order as requested was made, and the following named physicians were appointed by the court for the purpose of making the examination: Dr. B. F. Cunningham, Dr. W. H. Hood, and Dr. L. T. Ritchie. The examination was made in a suitable room in the county jail in the presence of counsel for the state and for the defendant. Each of the said physicians so appointed by the court subsequently, upon rebuttal and over the objection of defendant, testified to the facts disclosed by their examination of the person of defendant within the limits specified in the order of the court. Exceptions to the order directing the examination, and to the testimony of the appointed physicians, were based upon the contention that the constitutional guaranty that no person shall be compelled, "in any criminal case, to be a witness against himself," was violated. Const. Nev. art. 1, § 8. We think the court did not err in the order or in the admission of the testimony.
Considering this constitutional provision, this court by Hawley, J., in State v. Ah Chuey, 14 Nev. 83, 33 Am. Rep. 530, said: While this opinion was rendered more than 30 years ago, it is recognized as a leading case construing this provision which exists in most of the state Constitutions and in the federal Constitution. Not all of the authorities are in harmony with the Ah Chuey Case, but the weight of authority is. The reasons supporting the conclusions reached in that case are convincing, and need not be repeated here. In this case the defendant had interposed the defense of insanity, had offered himself as a witness solely in support of this defense, had been physically examined by a physician for the purpose of enabling such physician to testify concerning his physical condition as bearing on his alleged insanity, and such physician had testified in regard thereto. He could not therefore interpose any legal objection to the state having the benefit of the same character of expert examination which he had through the testimony of his physician submitted to the jury.
The recent case of People v. Furlong, 187 N.Y. 198, 79 N.E. 978, presents a situation somewhat similar to that here involved. We quote from the opinion the following: ...
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