Walker v. State

• Decision Date: 19 November 1962
• Docket Number: No. 4476,4476
• Citation: 78 Nev. 463,376 P.2d 137
• Court: Nevada Supreme Court
• Parties: Joseph Miles WALKER, Appellant, v. The STATE of Nevada, Respondent.

Page 137

376 P.2d 137

78 Nev. 463

Joseph Miles WALKER, Appellant, v. The STATE of Nevada, Respondent.

No. 4476.

Supreme Court of Nevada.

Nov. 19, 1962.

Rehearing Denied Dec. 11, 1962.

John Squire Drendel, Reno, for appellant.

Charles E. Springer, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., Washoe County, Reno, for respondent.

McNAMEE, Justice.

Appeal is from the judgment based upon a jury verdict finding the appellant guilty of murder in the first degree and fixing the penalty at death. Appellant also appeals from the order denying a new trial.

On September 19, 1960, while one Paul Allison was driving a pickup truck outfitted with a camper on the rear through Elko, Nevada, he picked up appellant who was hitchhiking. They stopped at Carlin, Nevada, and purchased some food and a fifth of gin. Thereafter, they stopped at Lovelock, Pershing County, for some gasoline. They then drove three or four miles west of Lovelock where they parked for a time and then drove back into Lovelock to purchase more liquor. Thereafter, they drove 'quite a way, eight or nine miles, maybe ten,' beyond where they had first parked. According to the testimony of appellant, when he and Allison stopped the second time they continued drinking, and a fight ensued during which Allison was stabbed. Allison was found dead in the pickup camper in a parking lot in Reno, Washoe County, Nevada, on September 24, 1960. Appellant was apprehended several months later in Oklahoma where he was in prison.

Appellant specifies nine errors:

1. In his opening remarks to the jury the district attorney, over the objection of appellant, was permitted to state that appellant was apprehended at the Oklahoma State Penitentiary in McAlester, Oklahoma.

This statement was improper because it connotes the commission of an offense by appellant other than the one for which he was being tried. The objection therefore should have been sustained. State v. Lindsay, 63 Nev. 40, 161 P.2d 351.

The appellant however was not prejudiced by this opening remark because the place of apprehension was contained in appellant's written confession and mentioned by him in his oral testimony.

2. During the direct examination of prosecution witness Gladden, the district attorney asked: 'Now, based on your experience as a deputy warden at the Oklahoma State Penitentiary, and your some eight years' experience altogether at the prison, and based on your close contact with the inmate personnel, can you state the incidence of homosexuality with the inmate population?'

Appellant's counsel objected to the question and moved that it be stricken from the record.

The district attorney maintained that the question was relevant to motive, saying: 'One of the theories of the State's case will be that, in addition to robbery, this was a homicide in the perpetration of a homosexual act.' However, when questioned by the court, he admitted that he did not intend to show that Gladden had any knowledge of the appellant in this respect.

The district attorney erred in asking the question, but no intentional misconduct appears as would justify a reversal on that ground. People v. Doetschman, 69 Cal.App.2d 486, 159 P.2d 418.

The court sustained the objection and stated to the jury: 'The Court instructs you that under all the facts and circumstances of this case, and the state of the evidence to date, this is an improper question. The Court has sustained an objection to it. I ask you to completely disregard it, wipe it out of your minds, and let it have no more effect upon you than if this question had never been asked.'

Appellant did not move for a mistrial. As heretofore stated, he objected to the question and moved that it be stricken. The court's action was in exact compliance with appellant's request and, consequently, he cannot complain of the court's ruling in this regard. In view of appellant's admissions that he committed the homicide in question, we are of the opinion that the mere asking of the question did not affect substantial right of the appellant or prevent him from having a fair and impartial trial.

3. The district attorney asked appellant on cross-examination: 'Is it a matter of fact that you were dishonorably discharged from the Army?'

On direct examination, appellant had testified that he had used another name when he re-enlisted in the Army and stated he did not know of any reason why he had done so.

Clearly, on cross-examination, this question was proper as being relevant to impeachment. The court, however, sustained appellant's objection to the question, and no prejudice to appellant therefore resulted.

4. Nevada Wise, a Reno police officer, who on September 24, 1960, spent two hours examining the pickup camper, its contents, and the body of the victim testified on cross-examination that he had made a written report of this investigation. Appellant thereupon made a motion to produce the written report so that he could further cross-examine the witness. This motion was denied. We are of the opinion that the trial judge should have granted the motion to produce. State v. Bachman, 41 Nev. 197, 168 P. 733; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881. Its refusal to do so is not reversible error if no substantial right of the appellant was prejudiced by the trial court's erroneous ruling. NRS 169.110.

Wise testified on direct examination that he had gone to the pickup camper to photograph the scene and to process it for latent fingerprints, and that he took photographs of the exterior and interior of the camper. Some of these photographs were received in evidence after Wise had testified that they correctly and accurately portrayed that which they purported to portray. Wise also identified certain articles received in evidence which appeared in the photographs. This testimony was corroborated by Officers Williams and Manin who were present while Wise was making the investigation and taking the photographs. The photographs depicted a stab wound in decedent's back, the tied hands, and blankets and other articles covering the body.

Appellant in his written confession admitted stabbing and tieing the hands of the victim and later covering the body. At the trial he testified that the confession as given was accurately transcribed except for certain discrepancies which he pointed out and described as being very minor.

Under these circumstances we cannot conceive how Wise's testimony could have been materially impeached by his written statement, or how the failure to furnish appellant the statement was in any way prejudicial.

5-7. The information alleges that the offense took place in Washoe County, Nevada. There was evidence from which the jury properly could have found that this allegation was true. The body, the fatal weapon, and the vehicle in which the homicide took place were all found in Reno, Washoe County. Also, appellant pawned deceased's jewelry therein. The only evidence to the contrary was appellant's written confession from which it could be inferred that the homicide took place near Lovelock in Pershing County. This was partially supported by the testimony of witness Bone that she rented a motel room on September 19, 1960, in Fernley, Lyon County, to a single man, and that the automobile license number on the guest registration card was that of the deceased's vehicle. ¹

At the conclusion of the state's evidence, appellant moved for an acquittal on the grounds that the court's jurisdiction had not been proven or, in the alternative, that the court cede jurisdiction to Pershing County. Appellant claims error in the denial of this motion and error in the giving of Instruction 25.

The prosecution's theory was that the homicide took place just outside Lovelock, Nevada, and Instruction 25 reads:

'When an offense is committed in this state in a car prosecuting its trip, the jurisdiction is in any county through which the car passes in the course of its trip, or in the county where the trip terminated. You are instructed that the vehicle described in this case * * * is a 'car' within the meaning of this instruction.'

NRS 171.040 provides in part as follows: 'When an offense is committed in this state: * * * 2. On a railroad train, car, stage or other public conveyance, prosecuting its trip, the jurisdiction is in any county through which the train, car, stage or other public conveyance passes in the course of its trip, or in the county where the trip terminates.'

In order to justify the giving of Instruction 25 we must construe the word 'car' appearing in the statute to include in its meaning a private motor vehicle.

It is respondent's contention that because of the punctuation in the statute, the words 'or other public conveyance' must be read in conjunction with the preceding word 'stage,' and that they do not refer back to a railroad train or car. It is clear to us, however, that the word 'car,' as used therein, was not intended to include a private motor vehicle.

NRS 171.040 was taken from Section 783 of the California Penal Code in 1911. Subsequent to 1911, the California Legislature amended their statute by making it applicable to a public offense committed in that state on a motor vehicle prosecuting its trip through the state. Cal.Pen.Code § 783. Nevada has enacted no such amendment.

We conclude, therefore, that the giving of Instruction 25 was error because subsection 2 of NRS 171.040 relates only to public conveyances, and that the word 'car,' as used therein, does not include a private motor vehicle. It becomes necessary, therefore, to determine whether this error was prejudicial.

It is apparent that before the filing of the information the district attorney did not have proof of such nature as to permit him to know where the homicide took place. The accused's statement, if accepted as true, could place the homicide in Pershing, Churchill, or Lyon County. On the other hand, from the evidence presented,...