State v. Rodriquez

• Decision Date: 03 July 1909
• Docket Number: 1,791.
• Citation: 102 P. 863,31 Nev. 342
• Parties: STATE v. RODRIQUEZ.
• Court: Nevada Supreme Court

102 P. 863

31 Nev. 342

STATE v. RODRIQUEZ.

No. 1,791.

Supreme Court of Nevada

July 3, 1909

Appeal from District Court, Esmeralda County.

Emile Rodriquez was convicted of assault with intent to kill, and he appeals. Reversed and remanded.

Clarence C. Ward, for appellant. R. C. Stoddard, Atty. Gen., and L. B Fowler, Deputy Atty. Gen., for the State.

SWEENEY J.

The appellant was indicted by the grand jury of Esmeralda county Nev., for the crime of assault with intent to kill one Louise Alno, on the 10th day of April, 1908, in the town of Goldfield, Nev.; was regularly tried before a jury; convicted and sentenced to eight years' imprisonment in the Nevada State Penitentiary by the district judge of the First judicial district court of the state of Nevada, in and for the county of Esmeralda.

From the judgment and order of the lower court, overruling appellant's motion for a new trial, appellant appeals assigning as error the refusal of the district court to grant a motion of appellant at the conclusion of the direct evidence of the prosecution after it had rested, instructing the jury to acquit the defendant because of the insufficiency of the evidence produced by the state to establish the commission of crime charged in the indictment; secondly, that the court erred in permitting the district attorney, in his closing argument to the jury, to make statements of fact unsupported by the evidence, and not justified by the testimony, of such a prejudicial nature as to seriously prejudice the jury against the rights of the defendant; and thirdly, that the verdict is unsupported by the evidence and contrary to law.

Section 4656, Comp. Laws, in our Criminal Practice Act, provides as follows: "Section 1. In every crime or public offense there must be a union or joint operation of act and intention, or criminal negligence."

The crime of assault with intent to kill consists of two essential elements: The act of the assaulter, and the intent with which said act was done. Bishop's New Criminal Law (8th Ed.) § 729; People v. Devine, 59 Cal. 630; Russ on Crimes, §§ 438-453; Robinson's Elementary Law, § 472; State v. Wilson, 30 Conn. 500; Washington v. State, 53 Ala. 29; Cunningham v. State, 49 Miss. 685 at 701. Where, in an indictment, such as for the crime of assault with intent to kill, where intent is one of the essential ingredients of the crime, and, to constitute the crime, specific intent enters into the nature of the act itself, to convict one indicted of this crime it is necessary that the intent to kill must be alleged and proved beyond a reasonable doubt. State v. Zichfeld, 23 Nev. 316, 46 P. 802, 34 L. R. A. 784, 62 Am. St. Rep. 800; State v. Lung, 21 Nev. 209, 28 P. 235, 37 Am. St. Rep. 505; State v. Newton, 4 Nev. 410; Ogletree v. State, 28 Ala. 693; Walls v. State, 90 Ala. 618, 8 So. 680; Felker v. State, 54 Ark. 489, 16 S.W. 663; People v. Mize, 80 Cal. 41, 22 P. 80; Patterson v. State, 85 Ga. 131, 11 S.E. 620, 21 Am. St. Rep. 152; Lanier v. State, 106 Ga. 368, 32 S.E. 335; Kimball v. State, 112 Ga. 541, 37 S.E. 886; Crosby v. People, 137 Ill. 325, 27 N.E. 49; Thompson v. People, 96 Ill. 158; Flint v. Com., 81 Ky. 186, 23 S.W. 346; State v. Evans, 39 La. Ann. 912, 3 So. 63; Roberts v. People, 19 Mich. 401; State v. Stewart, 29 Mo. 419; Ward v. State, 58 Neb. 719, 79 N.W. 725; Botsch v. State, 43 Neb. 501, 61 N.W. 730; State v. Colvin, 90 N.C. 717; Sharp v. State, 19 Ohio, 379; Com. v. Clark, 6 Grat. (Va.) 675; State v. Taylor, 70 Vt. 1, 30 A. 447, 42 L. R. A. 673, 67 Am. St. Rep. 648; People v. Stites, 75 Cal. 570, 17 P. 693; State v. Wells, 31 Conn. 210; Com. v. Willard, 22 Pick. (Mass.) 476; People v. Sweeney, 55 Mich. 586, 22 N.W. 50; State v. Butman, 42 N.H. 490.

A review of the witnesses on behalf of the state and evidence adduced discloses that Louise Alno, the party on whom, it is alleged in the indictment, the assault with the intent to kill was perpetrated by the appellant, called as a witness on behalf of the state, testified that on the occasion of the assault in question, when she was shot, believing that appellant was about to commit suicide, when he drew the gun to shoot himself she grabbed the gun, and in so doing caused the shots to go downward into her leg and heel. There is not a scintilla of evidence in her testimony wherein she testifies that she believed the appellant intended to kill her, or, what is more, to do her any bodily harm whatever. Dr. Turner, on behalf of the state, simply testified to the nature of the wounds when he dressed the same; Vernon Bee testified to the hearing of the shots, and noticed the defendant walking away from the scene of the trouble, and the screaming and running away of the woman; Bart Knight testified to arresting the defendant and taking the gun away from him; and one Charles Webb, who is the only witness to connect the defendant in any way with attempting to shoot at the woman, and that only in an inferential answer, which would not be admissible as evidence if objected to, stated in answer to the following query: "Q. Could you determine from the flash at what the man was shooting? A. No; he was so-- Naturally think he was shooting at the lady though. When she ran, he threw the gun down this way [showing]."

It will be observed from his answer to the query of the prosecution that he does not state positively that the defendant shot at the woman, but that he thought defendant did. Without passing upon the very questionable sufficiency of the evidence thus produced by the state on which this verdict was rendered, and which is here cursorily reviewed to emphasize the possible prejudicial effect on the jury of certain remarks of the district attorney hereinafter set forth, we will pass to the assignment of error of the appellant alleging as prejudicial to defendant's rights, certain statements made by the district attorney in his closing argument to the jury, which we think are of such a prejudicial nature that the judgment herein must be reversed and a new trial granted.

Appellant assigns as error the following language of the district attorney in his closing argument to the jury: "Mr. Swallow: Would you suppose these dear little women would testify to the truth? Gentlemen, we know they will not, even if she is a state's witness. We know these dear little French women, who lie in the arms of their macques for many long months, in a case of this kind are always forgiving, and only too willing to say, 'Don't punish him.' *** There is nothing so damnable, nothing more criminal in the world, than the treatment of a woman by her macque, and especially is this true among that class of people in their particular locality. *** She said she did not remember. I ask you, gentlemen, to wipe her testimony out for all purposes except one and that is to show that the other French macques in that neighborhood have intimidated her so that she dare not go on this stand and tell the jury-- Mr. Ward: We object to any such remarks by counsel for the state, and move that they be stricken from the consideration of the jury. The Court: I instruct you, gentlemen, not to consider the remarks of the district attorney just spoken. It is hardly proper, Mr. Swallow."

The evidence...