State v. Willberg

• Decision Date: 06 September 1921
• Docket Number: 2490.
• Citation: 200 P. 475,45 Nev. 183
• Parties: STATE v. WILLBERG.
• Court: Nevada Supreme Court

200 P. 475

45 Nev. 183

STATE v. WILLBERG.

No. 2490.

Supreme Court of Nevada

September 6, 1921

Appeal from District Court, Nye County; Mark R. Averill, Judge.

Fred Willberg was convicted of murder, and from the judgment, and an order denying his motion for new trial, he appeals. Affirmed.

Forman & McKnight, of Tonopah, for appellant.

L. B Fowler, Atty. Gen., Robert Richards, Deputy Atty. Gen., and F. T. Dunn, Dist. Atty., of Tonopah, for the State.

SANDERS C.J.

The record discloses that Fred Willberg was informed against by the district attorney of Nye county for the murder of Dixie Miller, by shooting her with a revolver, in a resort known as Blake's Cabaret, in the town of Tonopah, Nye county Nev., on the 25th day of August, 1920. He was tried and convicted of murder in the first degree. The jury, as they are privileged to do in capital cases, by their verdict fixed the punishment at confinement in the state prison for life. A motion for a new trial was overruled. The court pronounced judgment and sentence in accordance with the verdict. The defendant appeals from the order denying him a new trial, and also from said judgment. The case has been submitted for decision on briefs.

Following the opening brief of counsel for defendant, it is first insisted that the motion for a new trial should have been granted, for the reason that the jury was misdirected on material points of law, in the following particulars:

(1) That the court, of its own motion, included in its charge to the jury an instruction covering "voluntary manslaughter," when there was absolutely no evidence in the case to support the instruction.

(2) That one instruction, given at the request of the state was designed to single out, and had that effect, a particular witness for the state, one W. D. Foster, whose testimony was quite damaging to defendant, giving his testimony verity and undue prominence over that of other witnesses.

(3) That the court, by one of its instructions, assumed a material and disputed fact in issue to be true.

(4) That the court erred in rejecting five instructions requested by the defendant, on the ground that their subject-matter had been in substance covered by other instructions.

It must be understood, and never overlooked, that it is the statute law of this state (Rev. Laws, § 7469) that no judgment shall be set aside or new trial granted in any case on the ground of misdirection of the jury, unless in the opinion of the court after an examination of the entire case, it shall appear that the error complained of has resulted in a miscarriage of justice, or has actually prejudiced the defendant, in respect to a substantial right. The reason for this provision is that, since the law gives no redress for a wrong not resulting in injury, a party who has suffered nothing from an omission of a charge, an incorrect one, or other error relating thereto, will not be afterward heard to complain whether he objected at the time or not. 2 Bishop's New Crim. Proc. (2d Ed.) § 980, subd. 7, p. 823. The law is designed to inhibit courts from setting aside judgments or granting new trials where, upon an examination of the entire case, the verdict is manifestly right, or where it appears that no other verdict could have been properly returned by the jury under instructions entirely correct. 14 R. C. L. § 74, p. 815.

Coming to a discussion of the first objection to the instructions, it must be conceded that, where there are different degrees of an offense, the law should be given of each degree which the evidence tends to prove; otherwise of any degree which it does not. 2 Bishop's New Crim. Proc. (2d Ed.) § 980, subd. 2, p. 820.

In this case the court instructed the jury that the defendant could be convicted of murder in the first degree or of manslaughter. It then by its charge defined manslaughter, both voluntary and involuntary, in the language of the statute. There is evidence in the case tending to reduce the charge from murder in the first degree to involuntary manslaughter. The court having charged that the defendant could be found guilty of murder in the first degree or manslaughter, the inclusion in the charge of the definition of voluntary manslaughter was merely explanatory of the offense of manslaughter, and was not harmful.

An alleged witness to the homicide was called by the state in rebuttal. His version of the killing varied but slightly from that of two other eyewitnesses who had testified in behalf of the state. His testimony was quite damaging to the defendant. It appears that upon cross-examination the witness stated that he had not testified at the preliminary examination of the defendant. The question and answer were not objected to by the state; but when the court came to charge the jury, it instructed as follows, at the request of the state, over the objection of the defendant:

"At a preliminary examination the state is not required to introduce any more evidence than is necessary to give the committing magistrate reasonable grounds to believe that a public offense has been committed, and that the person charged thereof committed it. Therefore, if any witness has testified at the trial of the case who did not testify at the preliminary examination of the defendant, it is an immaterial matter, which you are not to consider in your consideration of his testimony at the present trial."

This instruction is a correct statement of the law. Whether or not it was actually used for the illegal purpose of singling out and bolstering up the testimony of a particular witness is not properly before us.

It is...