State v. Rollings

• Decision Date: 04 June 1937
• Docket Number: 3180.
• Citation: 68 P.2d 907,58 Nev. 58
• Parties: STATE v. ROLLINGS.
• Court: Nevada Supreme Court

68 P.2d 907

58 Nev. 58

STATE v. ROLLINGS.

No. 3180.

Supreme Court of Nevada

June 4, 1937

Appeal from District Court, Clark County, Eighth District; Wm. E Orr, Judge.

Ralph Rollings was convicted of an assault with a deadly weapon with intent to inflict bodily injury, and he appeals.

Affirmed.

A. A Hinman, of Las Vegas, for appellant.

Roger Foley, Dist. Atty., and A. S. Henderson, Deputy Dist. Atty both of Las Vegas, Gray Mashburn, Atty., Gen., and W. T Mathews and W. Howard Gray, Deputy Attys. Gen., for the State.

DUCKER Justice.

Appellant was convicted of an assault with a deadly weapon with intent to inflict bodily injury. He will be hereinafter referred to as the defendant.

On his arraignment he presented what are designated "pleas in abatement." The state objected to the filing of these pleas, two in number, upon the grounds that they were not authorized by law and did not state sufficient facts to constitute pleas in abatement, and moved to strike the same. The court rendered a decision rejecting the pleas, stating therein that they were not countenanced within the laws of this state and were not within the provisions of our practice.

At the trial defendants was sworn as a witness and offered to proved the allegations in the pleas by his own testimony and the magistrates record of his preliminary examination. The offer was denied by the court. Defendant moved in arrest of judgment and for a new trial, and offered on each motion the record of the proceedings of the preliminary examination. These motions and offers were denied. The pleas, which are in writing, state in substance that defendant's preliminary examination upon a charge of assault with intent to kill, for which he was held to answer, was not heard within the time required by law, and that he was refused counsel of his own choice at such examination. In connection therewith it appears from these pleas that defendant was brought before the committing magistrate on said charge on the 18th days of August, 1936, as which time and place Louis Cohen, an attorney at law, appeared as his attorney, and the time for defendant's preliminary examination was set for the 21st day of August, 1936, at 10 a. m. On said 18th day of August, defendant and said attorney entered into an agreement for the latter to represent him and his attorney at the preliminary examination. On the 19th day of August, 1936, defendant discharged said Louis Cohen as his attorney. When the preliminary examination came on for hearing on the said 21st day of August, 1936, said Louis Cohen attempted to appear for defendant, whereupon the latter stated to the magistrate that he did not want Cohen for his attorney, but the magistrate continued to recognize Cohen as defendant's attorney, and upon motion of the attorney, but without the consent of defendant, the preliminary examination was continued to August, 24, 1936, at 2 o'clock p. m.

At the preliminary examination on the latter date, Cohen again attempted to appear for defendant, who again stated to the court that he did not want Cohen for his attorney, whereupon the court told defendant that he could not discharge the attorney without paying him, or without just cause or reason. The defendant then told the court that Cohen was trying to beat him out of what little money he had, but notwithstanding, the court continued to recognize Cohen as defendant's attorney, and upon the latter's motion but without the consent of defendant, continued the preliminary examination until the 27th day of August at 4 o'clock p. m. When the preliminary examination came on for hearing at that time, Cohen again attempted to appear as defendant's attorney, whereupon the defendant moved that A. A. Hinman, an attorney at law, be substituted of record as his attorney in the action. Thereupon, upon motion of Cohen, but without defendant's consent, the court continued the preliminary hearing and motion to substitute until the 28th day of August, 1936, at 2 o'clock p. m. On that date, said Cohen again attempted to appear as defendant's attorney. On motion of the state, but without defendant's consent, the preliminary examination and motion to substitute was continued by the court until the 31st day of August, 1936. When the preliminary examination came on for hearing on the latter date, the court denied defendant's motion and on its own motion granted the defendant leave to be represented by another attorney. Whereupon, upon requested of defendant said A. A. Hinman was entered as attorney of record for the defendant in the action, and the preliminary examination was continued to the 9th of September, 1936, at 3 o'clock p. m., at which time defendant was represented by said Hinman as his attorney, who moved for a dismissal of the complaint upon the ground that the preliminary examination was not completed in six days from the time of arrest or arraignment, and that the delay was not caused by the consent or on the motion of the defendant. The motion was denied by the court and exception allowed, and leave granted to cross examine witnesses without a waiver of his legal rights. The hearing was then continued to the 14th day of ...