State v. Squier

• Decision Date: 05 February 1936
• Docket Number: 3116.
• Citation: 54 P.2d 227,56 Nev. 386
• Parties: STATE v. SQUIER ET AL.
• Court: Nevada Supreme Court

54 P.2d 227

56 Nev. 386

STATE v. SQUIER ET AL.

No. 3116.

Supreme Court of Nevada

February 5, 1936

Appeal from District Court, Clark County; L. O. Hawkins, Presiding Judge.

Roy Squier and another were convicted of an offense, and they appeal.

Judgment modified in part and affirmed in part.

Guy E Baker and Harold M. Morse, both of Las Vegas, for appellants.

Gray Mashburn, Atty. Gen., W. T. Mathews and Julian Thruston Deputy Attys. Gen., and Roger Foley, Dist. Atty., and William L. Scott, Deputy Dist. Atty., both of Las Vegas, for the State.

TABER Justice.

Roy Squier and Neil Anderson have appealed to this court from a judgment of the Eighth judicial district court, Clark county sentencing them to terms in the state prison--Squier to not less than 5 nor more than 10 years, and Anderson to not less than 5 nor more than 6 years. The appeal is also from an order denying them a new trial. There are fourteen assignments of error, on five of which appellants now contend that there should be a reversal: (1) Insufficiency of evidence; (2) limiting the number of peremptory challenges to 4; (3) denial of a speedy trial; (4) misconduct on the part of the prosecuting attorney; (5) sentence unauthorized by law.

It is the settled law of this state that a verdict of conviction will not be set aside upon the ground of insufficiency of evidence if it is supported by any substantial evidence. We have carefully read and considered the entire record in this case, and are of the opinion that there is not merely sufficient, but ample evidence to support the verdict. The court is so clearly satisfied that the verdict was warranted and sustained by the entire evidence in the case and that said verdict is not contrary to the evidence therein that we do not feel called upon to enter into any discussion of the testimony.

The information, after stating the time and place of the alleged offense, charges that the defendants "did, then and there, wilfully, unlawfully and feloniously, in and upon one" (we omit name), "a female, not then and there being the wife of either of said defendants, violently and feloniously make and assault and her, the said" (we omit name), "then and there, forcibly and against her will, did ravish and carnally know and accomplish with her an act of sexual intercourse."

After twelve jurors had been accepted for cause, but before any jurors were sworn to try the case and before any peremptory challenges were made, counsel for defendants, addressing the court, said: "We feel that we are entitled to eight peremptory challenges for both of these defendants." The court, after hearing respective counsel, ruled as follows: "It is the rule of the court that both defendants in this case have only four peremptory challenges." Defendants proceeded to exercise the 4 peremptory challenges to which they were limited by the court's ruling, but did not exercise, or attempt to exercise, a fifth or any further peremptory challenge. The record does not show, except as above stated, that the defendants, after they had exercised four peremptories, or at any other time, informed the court that they were not entirely satisfied with the jury, or that they desired or demanded that they be permitted to exercise any further peremptory challenges.

"The defendant and the state shall each be entitled to peremptory challenges as follows: 1. If the offense charged is punishable with death or by imprisonment for life, to the number of eight (8). 2. If the offense charged is other than those above mentioned, to the number of four (4)." Section 10942, N. C. L.

A person convicted of rape "shall be punished by imprisonment in the state prison for a term of not less than five years and which may extend to life; provided, that if such crime be accompanied with acts of extreme violence and great bodily injury inflicted, the person guilty thereof shall be punished by imprisonment in the state prison for a term not less than twenty years, or he shall suffer death, if the jury by their verdict affix the death penalty." Section 10124, N. C. L.

In our opinion, the information in this case does not charge an offense which is or may be punishable with death. Aderhold v. Pace (C.C.A.) 65 F. (2d) 790; 31 C.J. 734, § 281; 1 Bishop's Cr.Law, § 601. The question to be determined, therefore, is whether the offense charged in the information "is punishable" by imprisonment for life.

So far as we have been able to learn, neither the Nevada nor California statute prescribing the number of peremptory challenges in criminal cases has at any time used the words "may be punishable," "is or may be punishable," or "which may extend to life." Said statutes have always used the words "If the offense is punishable," or "If the offense be punishable." It is the contention of appellants that an offense is punishable for life, within the meaning of section 10942, N.C.L., if the sentence may extend to life. The state takes the position that where, as in this case, the offense charged in the information is punishable by imprisonment "for a term of not less than five years and which may extend to life," it is not an offense which "is punishable" by imprisonment for life.

In People v. Clough, 59 Cal. 438, 441, the court said: "It is claimed on this appeal, that robbery is punishable for life; that the defendant was entitled to twenty peremptory challenges, and that the Court erred in its ruling. The section in question has never received a judicial interpretation, and the point is a new one. We are called upon to decide it without precedent or authority to aid us. 'If the offense charged is punishable with death or with imprisonment in the State Prison for life, the defendant is entitled to twenty peremptory challenges.' * * * We have reached the conclusion that it is only in capital cases, or cases in which a life sentence is in terms affixed by the Legislature as the punishment of the crime, that the defendant is entitled to twenty peremptory challenges. Robbery is not such a crime. It is true that the maximum punishment is not designated by the statute, but the minimum is, and that need not be for a longer time than one year." When People v. Clough, supra, was decided, the California statute (Penal Code, § 1070) provided that, "if the offense charged be punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to twenty and the State to ten peremptory challenges. On a trial for any other offense, the defendant is entitled to ten and the State to five peremptory challenges." Defendant, in the Clough Case, was convicted of robbery, the penalty for which at that time was imprisonment in the state prison "not less than one year."

People v. Clough, supra, decided in 1881, was followed in the case of People v. Riley, 65 Cal. 107, 3 P. 413, 414, decided in 1884, wherein the court, after citing the Clough Case, said, "To the ruling in that case we adhere."

In People v. Fultz, 109 Cal. 258, 259, 41 P. 1040, decided in 1895, Supreme Court Commissioner Vanclief, who wrote the opinion, after citing People v. Clough and People v. Riley, supra, went on to say: "It is urged, however, that those cases should be overruled, but without assigning any reason therefor which could have been overlooked or not considered by the court in those cases; therefore I think the construction put upon section 1070 of the Penal Code in those cases should be adhered to until that section is changed by the legislature, although, were the question res integra, I would be inclined to concur with counsel for appellant."

In People v. Logan, 123 Cal. 414, 56 P. 56, decided in 1899, the court said: "It is next claimed that the defendant was entitled, under the law, to 20 peremptory challenges, and was only allowed 10. When we consider the fact that section 671 of the Penal Code gives to the court authority to sentence a defendant to imprisonment for life upon conviction of the crime of rape, there seems much force in appellant's position. And, if the question of the construction of the statute pertaining to the number of peremptory challenges to which a defendant convicted of rape is entitled were now before us for the first time, the court might probably agree with defendant's contention. But this is not a new question, and the authorities of this state are the other way. People v. Clough, 59 Cal. 438; People v. Riley, 65 Cal. 107, 3 P. 413; People v. Fultz, 109 Cal. [258] 259, 41 P. 1040. We feel that the law had best stand as it has been heretofore announced." In the Logan Case a petition for rehearing in bank was denied.

In People v. Sullivan, 132 Cal. 93, 64 P. 90, decided in 1901, the court followed the decisions above mentioned, saying: "The construction thus given to the section was made nearly 20 years ago, and, as the legislature has not seen fit to make a change in the statute, we do not feel authorized to recede from the construction then given."

In People v. Scott, 24 Cal.App. 440, 141 P. 945, in which the defendant was convicted of rape, the action of the trial court in allowing only 10 instead of 20 peremptory challenges was upheld by the Court of Appeal, which expressly adhered to the rule as laid down in the earlier cases.

The same rule was followed in the case of People v Purio, 49 Cal.App. 685, 194 P. 74, 75, decided in 1920, wherein the court said: "The action of the court in refusing to allow more than 10 peremptory challenges is claimed as error under section 1070 of the Penal Code. It is contended that, since the crime of robbery may be punished by imprisonment in the state prison for life, the defendants, by virtue of said section, were entitled to twenty of such challenges. The said provision, however, applies only to cases where no...