State v. Preston

• Decision Date: 30 September 1908
• Docket Number: 1,733.
• Citation: 97 P. 388,30 Nev. 301
• Parties: STATE v. PRESTON et al.
• Court: Nevada Supreme Court

97 P. 388

30 Nev. 301

STATE v. PRESTON et al.

No. 1,733.

Supreme Court of Nevada

September 30, 1908

On petition for rehearing. Denied.

For former opinion, see 95 P. 918.

PER CURIAM.

Counsel for appellants have filed a petition for a rehearing, and pray that the same may be granted "to the end that the judgment to dismiss be so modified as to authorize the docketing of the within case as upon error." The correctness of the ruling of this court that the appeal was not properly perfected, so as to confer jurisdiction to consider and determine the ease upon its merits by the statutory method of appeal (30 Nev. ___, 95 P. 918), is not questioned. Indeed, counsel in their petition now seriously question the appropriateness of an appeal in this case at all. They say: "To our mind, if the Attorney General had contended that the defendants had no right to a review in this case upon its merits by appeal, for the reason that the Constitution of the state of Nevada limited the appellate jurisdiction of the Supreme Court in criminal cases amounting to a felony to only questions of law, his contention would have been sound, and the appeal should have been dismissed as there is no statutory provision for a review of final judgments in cases of felony on their merits in the Supreme Court of the state, and the only remedy which a defendant could avail himself of would be the common-law writ of error."

This is a position entirely new, and is not a little startling, in view of the practice that has prevailed in this state from its organization to the present time. Our Constitution provides that the Supreme Court shall have "appellate jurisdiction on questions of law alone in criminal cases," that the "right of trial by jury shall be secured to all and remain inviolate forever," and that "judges shall not charge juries in respect to matters of fact"; and this court has uniformly held that it will not determine regarding conflicting evidence and questions of fact on which a verdict is based. The statutory appeal from a judgment and from an order denying a motion for a new trial has, so far as we are aware, been considered ample to clothe this court with power to review every question affecting a defendant's rights, providing substantial compliance be had with the plain provisions of the statute. What more, if anything, could be accomplished by the common-law writ of error is not manifestly apparent.

There is neither a constitutional nor statutory provision specifically authorizing writs of error in this state although the rules of this court contemplate that the writ may issue in appropriate cases. See Rules 18-22, inclusive (73 Pac. xiv, xv). The appellate courts of many states, where common-law practice largely prevails, review proceedings in the lower courts mainly by writs of error. In other jurisdictions, by constitutional or statutory provision, or both, it has been held, as in Colorado, that "the appeal is merely cumulative to the common-law process of writ of error. The statute which gives the former does not take away the latter. The party may in the first instance, as will be confessed, adopt either, at his pleasure." Freas v Engelbrecht, 3 Colo. 381; 7 Encyc. Pl. & Pr. 852, and note 2. In other jurisdictions it has been held "that a writ of error does not lie where a party is entitled to an appeal, and that, too, although the statute giving the right of appeal does not expressly provide that such remedy shall be exclusive. In such case the right to a writ of error is considered abolished by implication. The reasons on which the rule is founded are that the...