State v. Teeter

• Decision Date: 01 December 1948
• Docket Number: 3501.
• Citation: 200 P.2d 657,65 Nev. 584
• Parties: STATE v. TEETER.
• Court: Nevada Supreme Court

200 P.2d 657

65 Nev. 584

STATE v. TEETER.

No. 3501.

Supreme Court of Nevada

December 1, 1948

Appeal from District Court, Eighth Judicial District, Clark County A. S. Henderson, Judge.

Fredrick William Teeter was convicted for second degree murder. From the judgment of conviction and the order denying his motion for a new trial, he appeals.

Judgment and order reversed and new trial granted.such verdict and judgment.

Thruston, Salter & Bonner, of Las Vegas, for appellant.

Alan Bible, Atty. Gen., Geo. P. Annand and Homer Mooney, Deputy Attys. Gen., Robert E. Jones, Dist. Atty., and Harry E Claiborne, Deputy Dist. Atty., both of Las Vegas, for respondent.

HORSEY Justice.

On the 28th day of February, 1947, the defendant Fredrick William Teeter, was, by the verdict of the jury duly sworn and impaneled upon his trial in Department 2 of the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, to try the issue of his guilt or innocence, convicted of the crime of murder of the second degree. On March 3, 1947, the time set for pronouncing judgment, the court, after hearing and denying a motion in arrest of judgment and a motion for a new trial, presented and argued by John W. Bonner, Esq., attorney for the defendant, pronounced judgment adjudging the defendant Fredrick William Teeter, guilty of murder in the second degree, and that he be punished by imprisonment in the State Prison of the State of Nevada for the term of not less than ten (10) years and which may extend to lief. From such judgment of conviction and the order denying his motion for a new trial the defendant has appealed to this court. In this opinion the parties will be usually designated as plaintiff and defendant, as they were in the court below.

The defendant, upon this appeal, has presented eleven assignments of error, which have been fully argued and briefed by the respective counsel. We will consider them in the order in which they appear in appellant's opening brief.

The first of such assignments is: 'The Court erred in denying defendant's motion for bail'. In considering the case, it has been a matter of serious concern whether at this stage of the case we have the right, upon the appeal from the judgment, to consider this question of the denial of bail. It is most unusual to wait until a determination of the right to bail would be unavailing, insofar as bail before conviction is concerned, and then to raise the question upon the appeal, upon the theory that the alleged wrongful denial of bail goes to the validity of the judgment. When bail has been wrongfully denied by a court or magistrate, and the defendant is in custody, the usual procedure is by an original application to another court or magistrate, including the Supreme Court or any Justice thereof, for a writ of habeas corpus. This is usually done very soon after the first denial.

In Nevada there is no appeal to this court from the denial of bail by a lower court or magistrate in a habeas corpus proceeding, but in many states allowing such appeals they are numerous. But in this state an original application for a writ of habeas corpus may be made to another court or magistrate, even to this court or a Justice thereof, notwithstanding the denial, by another court or magistrate, of a former original application.

In some states a defendant, in custody, claiming he is unlawfully restrained of his liberty, may appeal directly to the Supreme Court from an order denying a motion for bail, but we have no provision for such an appeal in this state.

The question as to the right of the Supreme Court, upon appeal from the judgment, to consider such an assignment as that in the instant case, that bail has been erroneously denied, depends upon the construction of Section 11087, Vol. 5, N.C.L.1929, which is as follows:

'§ 11087. Intermediate Order Or Proceeding May Be Reviewed On Appeal. § 439. Upon the appeal, any decision of the court in an intermediate order or proceeding, forming part of the record, may be reviewed.'

This provision, at the time of its adoption, was taken from a like provision (in all essentials, identical) of the California Penal Code, Sec. 1259.

The California provision has been amended, making it very clear that in a criminal case every kind of intermediate order which affected the substantial rights of the defendant may be reviewed upon the appeal. Said Sec. 1259 as amended reads as follows:

'§ 1259. (Questions reviewable upon appeal by defendant: Necessity for exception or objection.) Upon an appeal taken by the defendant, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby. (Enacted 1872; Am.Stats.1909, p. 1088; Stats.1939, p. 2801.)'

It appears clear that the amendment in California merely clarified the inherent meaning of said provision, and that our Nevada Sec. 11087, taken from it in its original form, means substantially the same as the California provision thus clarified--that such all-embracive character is inherent in its provisions.

In California almost every conceivable kind of an order made in a criminal action or proceeding after the filing of an indictment or information has been held subject to be reviewed upon appeal from the judgment. Among such orders held reviewable, upon the appeal proper, are: Order refusing to grant continuance, order denying motion to set aside indictment, and order denying right to file application for probation.

As to the latter, the California District Court of Appeal for the Second District, Division 1, in People v. Jones, 87 Cal.App. 482, 262 P. 361, 367, in the opinion by Mr. Justice pro tem. Shaw, analyzed the above quoted Sec. 1259 of the Penal Code, and, after quoting same, stated its conditions or requirements, in order that the appellate court may review a ruling of the trial court, as follows:

'Under this provision, five conditions must be complied with in order that the appellate court may review a ruling of the trial court: (1) An appeal taken in open court; (2) a question of law involved in the ruling; (3) a ruling at the trial or prior to or after judgment (not including orders which are directly appealable); (4) objection made in and considered by the lower court before the ruling (except in case of an instruction); (5) a ruling or order which affected the substantial rights of the defendant.'

Applying this test to the proceedings had in the lower court before Judge Henderson, upon the motion by defendant for bail, in order to determine whether the defendant has the right of review by this court upon the pending appeal under our Sec. 11087, Vol. 5, N.C.L.1929, adopted originally from said Sec. 1259 of the California Penal Code, we find that all the requirements and conditions thus stated in People v. Jones, supra, existed in the instant case.

In the case of State v. Waterman, 36 Idaho 259, 210 P. 208, the defendant, in appealing from the judgment of conviction, assigned as error the refusal of the trial court to admit him to bail pending the appeal. The court did not pass upon the question of whether the lower court abused its discretion in denying the application for bail, for the reason that in the record as presented there was no showing as to the reason upon which bail was denied by the lower court. The Supreme Court of Idaho, however, considered or reviewed the matter upon the appeal proper, and Mr. Justice Dunn, in the opinion (on page 272 of 36 Idaho, page 212 of 210 P.), stated:

'Appellant complains of the refusal of the trial court to admit him to bail pending this appeal. In cases of this character the admission of defendant to bail after conviction is a matter of discretion with the trial court. C.S. § 9096; In re Schriber, 19 Idaho, 531, 114 P. 29, 37 L.R.A.,N.S., 693. Unless there is good reason for refusing bail, a defendant sentenced to imprisonment ought not to be compelled to submit to imprisonment while he is prosecuting an appeal in good faith. In this case the record does not show for what reason the court refused to admit appellant to bail, and on the record as it is presented here we are unable to hold that such refusal was an abuse of discretion.'

Gillis v. Commonwealth, 202 Ky. 821, 261 S.W. 591, is a case in which the defendant had been convicted of murder, and appealed from the judgment. The lower court had refused, upon an application before trial, to hear defendant's motion for bail. The Court of Appeals, upon the appeal from the judgment considered such refusal, and under the circumstances of the case, determined the refusal to hear the application was error, and such error was one of the errors for which the judgment of conviction was reversed. In view of the reasoning of the Kentucky appellate court, it is believed that if a hearing had been had and bail denied in the lower court, the Court of Appeals, under the facts and circumstances of that case, would have deemed such denial an abuse of discretion, and as clearly a ground for reversal as was the denial of the hearing. In that court's view, the gist of the injury to defendant was the lack of opportunity, because of his incarceration, for the proper preparation of his defense. As reported on page 593 of said 261 S.W., Hobson, C., in his opinion,...