State v. Soares

• Decision Date: 31 March 1931
• Docket Number: 2937.
• Parties: STATE v. SOARES.
• Court: Nevada Supreme Court

296 P. 1081

53 Nev. 235

STATE v. SOARES.

No. 2937.

Supreme Court of Nevada

March 31, 1931

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

George Soares was convicted of robbery, and he appeals.

Affirmed.

William S. Boyle, of Reno, for appellant.

Gray Mashburn, Atty. Gen., Wm. J. Forman, Deputy Atty. Gen., and Melvin E. Jepson, Dist. Atty., and A. P. Johnson, Deputy Dist. Atty., both of Reno, for the State.

COLEMAN C.J.

George Soares, alias George Miller, and Dan Brennan were jointly charged by information with the crime of robbery by means of putting the person robbed in fear, and upon the trial were both convicted. A motion for a new trial was filed in behalf of both, upon the hearing of which a new trial was denied Soares and granted as to Brennan.

From the order denying Soares a new trial, and the judgment, an appeal has been taken.

It is insisted that the court erred in denying the motion, for two reasons: (1) Because the verdict is contrary to the evidence and (2) upon the ground of newly discovered evidence.

The defendant drove up to a service station in Reno between 6:30 and 6:40 p. m. on September 27, 1930, and Brennan, the owner of the car, ordered three gallons of gasoline. Howard Foster who was in charge of the service station at the time testified, in substance, that Soares got out of the car and handed him in payment of the gasoline a $1 bill; that he went to the cash register, got the change, and handed it to Soares, who had his right hand in his coat pocket in a menacing position and said to Foster, "Open her up," referring to the cash register; that he opened up the cash register, and just at that moment the headlights of a car which was driving up flashed upon them; that Soares grabbed a $5 bill, got into Brennan's car, and they drove off hurriedly. The defendants admitted buying the gasoline, but gave an entirely different version of the money transaction.

Foster also testified that the occupant of the car which drove up merely inquired for a certain street, and drove off; that he made no statement to the occupant of the car of having been robbed, but immediately telephoned police headquarters of the robbery.

The defendants had been in Reno about a month and had no employment. They had known each other for a couple of years and had worked in several "clubs" in Salt Lake City for a time. After they left the service station they first visited a gambling resort in Reno, and later drove to Sparks, about three miles distant, where they were arrested and taken back to Reno, and were later formally charged with the crime.

It is very evident that the jury disbelieved the testimony of the defendants and accepted that of Foster. This they had a perfect right to do. No doubt the jury correctly estimated the type of men the defendants were and took into consideration the fact that their liberty was in jeopardy. We have read the testimony carefully. The testimony of Foster, who had held positions with responsible concerns in Reno from time to time, was straightforward and bears the earmarks which justified the jury in accepting it. We have often pointed out that in a criminal case where there is substantial evidence to support the verdict of the jury this court cannot weigh it. State v. Watts, 52 Nev. 453, 290 P. 732; State v. Ryan, 12 Nev. 403, 28 Am. Rep. 802; State v. McGinnis, 6 Nev. 109.

We are now brought to a consideration of the contention that the trial court erred in denying Soares a new trial since newly discovered...