State v. Wyatt
| Decision Date | 31 December 1968 |
| Docket Number | No. 5509,5509 |
| Citation | 448 P.2d 827,84 Nev. 731 |
| Parties | The STATE of Nevada, Appellant, v. Thomas D. WYATT, Respondent. |
| Court | Nevada Supreme Court |
Wyatt was charged with producing an abortion in violation of NRS 201.120. The abortee testified at the preliminary hearing, but her testimony was not corroborated. For this reason the district court subsequently granted Wyatt's petition for habeas corpus. The State has appealed from that ruling.
The issue presented to us centers upon the meaning to be given NRS 175.250 (now 175.301) which precludes conviction following a trial unless the testimony of the woman is corroborated by other evidence. 1 It is the State's contention that such corroborative evidence is required only at trial, and need not be offered at a preliminary hearing in order to establish probable cause to hold the accused for trial. The accused counters his contention by noting that this court has thrice ruled that the testimony of an accomplice must be corroborated at a preliminary hearing even though the statute requiring such corroboration (NRS 175.265, now 175.291) precludes only a 'conviction' upon the uncorroborated testimony of an accomplice. Ex parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960); Ex parte Sullivan, 71 Nev. 90, 280 P.2d 965 (1955); In re Oxley and Mulvaney, 38 Nev. 379, 149 P. 992 (1915). Thus, by a parity of reasoning he suggests that we should construe NRS 175.250 in similar fashion. We think that the analogy is sound.
The underlying purpose of a statute requiring corroborative evidence is to prevent false accusations as well as false convictions. 2 With this in mind, one accused of producing an abortion should be accorded as much protection at a preliminary hearing as one accused of some other crime on the uncorroborated testimony of an accomplice.
Affirmed.
The opinion of the majority is a prime example of judicial legislation. The language of NRS 175.250 (now 175.301) 1 is clear and unambiguous and is not susceptible to any judicial interpretation. That statute is a creature of the legislature and if its scope should be extended to include testimony at a preliminary hearing it is the prerogative of the legislature, not this court, to make the change.
The respondent was charged with the crime of abortion in violation of NRS 201.120. At the preliminary hearing the abortee testified for the prosecution, but her testimony was not corroborated. For that reason the district court granted the respondent's petition for habeas corpus. The state has appealed from that ruling. It is here conceded that the other testimony produced by the prosecution, at the preliminary hearing, did not corroborate the testimony of the abortee. The majority opinion in this case perpetuates the error of the district court.
In this state it has been clearly established that a preliminary hearing is not a trial. In the case of State v. Holt, 47 Nev. 233, 219 P. 557 (1923), this court said: In Overton v. State, 78 Nev. 198 at 201, 370 P.2d 677 at 679 (1962), referring to preliminary hearings, it was stated:
In holding that an abortee's testimony, at a preliminary hearing, must be corroborated, the district court relied on NRS 175.250 (now 175.301). The statute provides that upon a trial the defendant shall not be convicted on the testimony of the woman upon whom the offense shall have been committed unless she is corroborated by other evidence.
The intent of the legislature is clearly expressed in NRS 175.250 (now 175.301), when it used the words: 'Upon a trial * * *' It could only refer to a trial and not to a preliminary hearing. The mention of one thing implies the exclusion of another is a general principal of statutory construction; expressio unis est exclusio alterius. State v. Baker, 8 Nev. 141 (1872); In Re Bailey's Estate, 31 Nev. 377, 103 P. 232 (1909); Ex Parte Arascada, 44 Nev. 30, 189 P. 619 (1920).
In support of their position the lower court and the majority of this court draw an analogy between an abortee and an accomplice and rely on Ex Parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960); Ex Parte Sullivan, 71 Nev. 90, 280 P.2d 965 (1955); and In Re Oxley and Mulvaney, 38 Nev. 379, 149 P. 922 (1915).
Those cases in construing NRS 175.265 (now 175.291) specifically refer to the testimony of an accomplice. They are not controlling, because here we are concerned with the uncorroborated testimony of an abortee.
Almost without exception the courts in this country have held that a woman upon whom an abortion has been produced is not an accomplice of the person performing the abortion. People v. Buffum, 40 Cal.2d 709, 256 P.2d 317 (1953); State v. Tennyson, 212 Minn. 158, 2 N.W.2d 833, 139 A.L.R. 987 (1942); People v. Blank, 283 N.Y. 526, 29 N.E.2d 73 (1940).
This court is probably obligated under the rule of statutory construction and the doctrine of stare decisis to follow Oxley and require that the testimony of an accomplice be corroborated it a preliminary hearing, Snyder v. Garretti, 61 Nev. 85, 115 P.2d 769 (1941); Ex parte Sullivan, supra; Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947). However, neither the rule of statutory construction nor the doctrine of stare decisis compels us to extend the questionable holding of Oxley to include the uncorroborated testimony of an abortee at a preliminary hearing.
At common law the uncorroborated testimony of an accomplice, if it satisfied the trier of facts of the guilt of the defendant beyond a reasonable doubt, was sufficient to support a conviction. Without the statutory limitations the uncorroborated testimony of an abortee would support a convicted for the crime of abortion. Fitch v. Commonwealth, 291 Ky. 748, 165 S.W.2d 558 (1942); State v. Miller, 364 Mo. 320, 261 S.W.2d 103 (1953); Smartt v. State, 112 Tenn. 539, 80 S.W. 586 (1904).
When this court, in Oxley, adopted the holding in State v. Smith, 138 Ala. 111, 35 So. 42 (1903), it committed two errors. It indulged in judicial legislation and it adopted a legal principal which had been erroneously applied.
Now the majority of this court compounds and extends those errors into a new field by requiring that the testimony of an abortee must be corroborated at a preliminary hearing.
In State v. Smith, supra, the Alabama court ruled that the testimony to hold the prisoner must be sufficient to sustain a finding of guilt, stating: 'The whole theory of holding accused persons to the grand jury is that the evidence before the examining magistrate or the judge on habeas corpus is sufficient to sustain a finding of guilt by a petit jury when he shall be indicted and brought to the bar of the court.'
NRS 171.455 (now 171.206) 2 requires that the evidence show only probable cause to believe that the defendant committed the crime. The difference between proof of the defendant's guilt beyond a reasonable doubt and proof that there is sufficient cause to believe the defendant guilty of having committed the offense is obvious.
The holding in State v. Smith, supra, on its face, appears to be a case of judicial legislation, but whether the rule was correct or not under the statutes of Alabama it should not have been followed in Oxley because our statute required proof only of probable cause to believe the defendants had committed the offense, not proof of guilt beyond a reasonable doubt.
The effect of Oxley and its progeny, in applying an erroneous principle of law, is to require a higher degree of proof for holding a defendant upon a preliminary hearing than was ever intended by the legislature.
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