State v. Williams

• Decision Date: 05 December 1923
• Docket Number: 2599.
• Citation: 220 P. 555,47 Nev. 279
• Parties: STATE v. WILLIAMS.
• Court: Nevada Supreme Court

220 P. 555

47 Nev. 279

STATE v. WILLIAMS.

No. 2599.

Supreme Court of Nevada

December 5, 1923

Appeal from District Court, White Pine County; C.J. McFadden, Judge.

Dawn Margaret Williams was convicted of manslaughter, and she appeals. Affirmed.

Sanders J., dissenting.

V. H Vargas, of Ely, for appellant.

H. W Edwards, Dist. Atty., of Ely, for the State.

COLEMAN J.

Dawn Margaret Williams, referred to herein as the defendant, was charged in an information filed by the district attorney with the murder of one Jess Coverley on the 12th day of January 1923. She was convicted of the crime of manslaughter, and has appealed from the order denying her motion for a new trial and from the judgment.

Three questions are presented for our determination, the first going to an alleged error of the court in ruling upon an objection which was made after a witness called as an expert had answered a question. The question and the answer thereto read:

"Q. From your inspection and your examination, what would be your opinion as to the wound being self-inflicted? A. It could not have been.

Mr. Vargas (attorney for defendant): I object to that, if the court please."

Without considering the timeliness of the objection, we are not able to say that the court erred in overruling the objection. It is a general objection, and whether it went to the competency of the witness to give the testimony or to the impropriety of that line of evidence we are unable to tell. Certainly such testimony might be competent and proper under some conditions. This court has held that a general objection to the admission of testimony, unless it is wholly incompetent, is not sufficient. State v. Smith, 33 Nev. 438, 117 P. 19. In State v. Jones, 7 Nev. 415, the court said:

"In criminal as well as in civil cases, the objection should be so pointed that the attention of the court below may be directed to the exact point, so that the objection may be then obviated, if it be one of that character."

In view of the record we do not think the court committed error in its ruling.

Error is assigned to the admission in evidence of a photograph of the room in which the shooting was done, showing the bed and bedclothes, and a discoloring upon a pillow. All that is said in the brief in support of the alleged error is,

"The only purpose of introducing the photograph was to appeal to the passion or prejudice of the jury."

In view of the fact that only a general objection was made to the introduction of the photograph, it not appearing to be wholly incompetent, we cannot say that the court erred. Furthermore, nothing appears in the photograph itself to incite passion or prejudice.

We come now to the contention that the court committed prejudicial error in the giving of instruction No. 18, which reads:

"Gentlemen of the jury, the defendant has offered herself as a witness in her own behalf in the trial, and, in considering the weight and effect to be given her evidence, in addition to noticing her manner and the probability of her statements taken in connection with the evidence in the cause, you should consider her relation and situation under which she gives her testimony, the consequences to her relating from the result of this trial, and the inducements and temptations which would ordinarily influence a person in her situation. You should carefully determine the amount of credibility to which her evidence is entitled; if convincing, and carrying with it a belief in its truth, act upon it; if not, you have a right to reject it."

It is clear that the court erred in giving the instruction. Such an instruction received judicial favor in this jurisdiction for many years (State v. Johnny, 29 Nev. 203, 87 P. 3), but our Legislature in 1915 (Stats. 1915, p. 191) amended section 7160 of our Revised Laws so as to provide that--

"No special instruction shall be given relating exclusively to the testimony of the defendant, or particularly directing the attention of the jury to the defendant's testimony."

But, notwithstanding the error committed, it does not necessarily follow that the judgment should be reversed, for it is expressly provided in section 7469, Revised Laws,

"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 to which application is made, 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."

See State v. Willberg, 45 Nev. 183, 200 P. 475.

We cannot presume that the Legislature by enacting the statute relied upon by appellant as a ground for a reversal of the judgment meant to do more than change the long-existing rule in this state to the effect that an instruction similar to the one in question is proper. It would indeed be remarkable for the Legislature to have intended, in the face of the general statute providing that no judgment should be reversed for the misdirection of the jury which resulted in no miscarriage of justice or actual prejudice to the defendant, that the giving of an erroneous instruction in the particular in question should necessarily result in a reversal of the judgment, regardless of whether the defendant was prejudiced or there was a miscarriage of justice. Why should we presume that the Legislature intended to place such an instruction in a class all to itself? Why must we presume that the Legislature intended to overthrow in one particular the general policy of the law and the tendency of the age to ignore all error which results in no actual prejudice? Must we not conclude that, if the Legislature intended such a result, it would have expressly provided for the reversal of a judgment where such an instruction is given? Let us see what an absurd result might follow if we take the contrary view:

Suppose John Smith, a man in the possession of all his members and faculties, goes into a hardware store and purchases a Colt's automatic and cartridges to fit, and as he goes out says to a half dozen reputable men that he is going down the street to shoot on sight John Doe, an armless and legless man, and immediately walks out of the store, and within a half block he sees Doe crawling from him along the sidewalk, and as he comes within 10 steps of him, in view of a dozen other reputable men, he begins to shoot Doe in the back, and, continuing to advance, according to the testimony of the 12 men, empties every bullet into the wriggling body of the cripple. He then coolly walks to the sheriff's office, surrenders himself and his gun, and boasts in the presence of several persons of having shot Doe in the back while he was crawling helplessly upon the sidewalk. While in jail he writes a dozen letters to as many different people over a period of months complaining of an ancient grudge against Doe, and in each letter boasts of his fiendish act. He is placed upon trial for his crime, and for the first time sets up the plea of self-defense, offering himself alone as a witness in support thereof in opposition to the letters he had written, the testimony of the men in the store, and those who saw the shooting, as well as that of the sheriff and others who were present when he surrendered himself, as to his boastful statements made at the time he surrendered, and the evidence of the doctors that the deceased was shot in the back only. In such circumstances should this court reverse a judgment for the sole reason that an instruction was given similar to the one in the instant case? We think not.

The supposititious case which we have suggested borders, we know, upon the absurd, for no man in his right senses is likely to plead in self-defense an attack by an armless and legless man (though we have known some defenses about as ridiculous to be urged); but, while this is true, it is the extreme illustration which convinces the minds of some.

There is nothing in the case of State v. Blaha, 39 Nev. 115, 154 P. 78, justifying any other view. It appears from the opinion in that case that the trial court refused to give at the request of defendant an instruction violative of the 1915 amendment; hence there was no occasion to consider the application of section 7160, Rev. Laws, as amended. In the recent case of State v. Cudney, 47 Nev. 224, 218 P. 736, the trial court gave an instruction similar to the one given in the instant case. We decline to consider it upon the ground that the defendant did not claim to have been prejudiced thereby, though the Attorney General directed our attention to the error committed. Our position in this case is consistent with the one we took in that one. Section 7160, Rev. Laws, is a general statute meant to apply to every case in which the trial court misdirects the jury; hence the inquiry in the instant case is: Does it appear that the error complained of resulted in a miscarriage of justice, or actually prejudiced the defendant in respect to a substantial right? From a reading of this statute it must not only appear that the trial court erred, but it must appear affirmatively that the error resulted in a miscarriage of justice, or actually prejudiced the defendant. In other words, we can indulge in no presumption favorable to the defendant. Such is the clear, unequivocal, unambiguous provision of the statute.

Let us examine the evidence. It appears from the undisputed testimony that the deceased and the defendant arrived in Ely Nev., on November 7, 1922, and continued to reside there as Mr. and Mrs. Coverley up to the date of the tragedy; that the deceased was addicted to the use of narcotics and intoxicating liquor, and was a worthless character. On...