State v. Cyty

It is error for prosecutor to state in his argument anything as fact which is not in evidence. State v. Scott, 37 Nev. 432; L.R.A. 1918D, 7; State v. Givens, 152 P. 1054.

It is error for prosecutor to ask defendant on cross-examination if he ever committed some other crime, when such question is without foundation or connection with crime charged, or without offer to show its materiality, even though prosecutor is rebuked and jury instructed to disregard. People v. Wells, 34 P. 1078; Leahy v. State, 48 N.W. 390.

It is error to instruct on self-defense, leaving out clause that if defendant acting as reasonable man believes it necessary to commit act to protect himself, he is justified. Rev. Laws, 6402; State v. Scott, 142 P. 1053; State v. Vaughn, 22 Nev. 285.

It was error to give instruction on carrying concealed weapon when crime charged is assault with intent to kill, as first is not necessarily included in second offense. People v. Bond,1 Nev. 33; State v. McGinnis, 5 Nev. 337; 16 C.J. 1042. Verdict will not be disturbed if there is substantial evidence to support it. State v. Buralli, 27 Nev. 41.

Alleged prejudicial statement referred to evidence. Court said, "That's his conclusion from what testimony was." Statement of fair deduction from evidence is not error. L.R.A. 1918D, 6. If statement proved not prejudicial reversal will not be granted. District attorney is authorized to base argument on evidence implying admission of facts charged. People v. Swaile,107 P. 134.

Other offenses can now be shown to show motive, intent, or manner of perpetration. Morse v. Commonwealth, 111 S.W. 714; Underhill, Crim. Ev. 200, 208. Prosecutor knew of defendant's former use of gun; the cross-examination was to show black spots in career painted so white on direct. There was no malice; question was asked in good faith, 8 Cal. Jur. 257; 16 C.J. 2229; People v. Allen, 137 Pa. 1148. If error was committed, instruction No. 50 instructed jury to disregard all evidence stricken, and all questions to which objections had been sustained.

Instruction on self-defense is statutory. Rev. Laws, 6402.

Instruction on concealed weapons is also statutory. Rev. Laws, 6558. Defendant was carrying gun illegally. He killed another while so committing illegal act and was therefore guilty of manslaughter. Carrying concealed weapon was not presented as offense charged, but as element of it.

OPINION Defendant was charged with an assault with intent to kill, and convicted of the offense of assault with a deadly weapon with intent to inflict bodily injury. He has appealed from both the judgment and the order denying his motion for a new trial.

1. It is contended that the district attorney was guilty of misconduct prejudicial to the defendant by the use of the following language in his closing argument:

"As he told me to-day in talking to me, he gloried in the fact that he would use a gun. He indicated that he would use a gun at the slightest provocation."

At the time of the statement counsel for the defendant took appropriate steps to protect the rights of his client, and now assigns the remarks as prejudicial error. The court, in response to counsel's attack upon the remarks quoted, said:

"That is his conclusion from what the testimony was. The jury are to determine what the facts are."

What is the reasonable inference to be drawn from the language of the district attorney? Will it justify the statement of the trial court?

The district attorney did not say that the purported statement was made to him on cross-examination in the presence of the court and jury, but "as he told me in talking to me." To our minds this language clearly implies only one situation, namely, that the statement was made to the district attorney privately, and not while he was being cross-examined in open court. Furthermore, a careful reading of the evidence of the defendant on cross-examination by the district attorney fails to disclose the slightest testimony to support the statement which is complained of. There was no such testimony given which would warrant any such conclusion by counsel, court, or jury. The statement was grossly improper and highly prejudicial in character. Courts have uniformly condemned as improper statements made by a prosecuting attorney, which are not based upon, or which may not fairly be inferred from, the evidence. State v. Rodriguez, 31 Nev. 342, 102 P. 863; State v. Irwin, 9 Idaho, 35, 71 P. 609, 60 L.R.A. 716; L.R.A. 1918D, page 8, note.

We might cite a great array of authorities to the effect that it is an abuse of the high prerogative of a prosecuting attorney in his argument to make statements of facts outside of the evidence or not fairly inferable therefrom, and that to do so constitutes error. In fact, there is no dissent from this view. The only matter which troubles the court when such an error is urged is whether or not it was prejudicial to the defendant.

2. Such misconduct is due to a variety of causes — sometimes to inexperience of the district attorney, sometimes to his vaulting ambition, sometimes to the fact that he is innocently carried away by the exuberance of his own misguided zeal, and sometimes to the bias or prejudice of special counsel — but whatever contributes to such an abuse of a great power, it is the duty of the court, unsolicited, to reprimand instantly such misconduct, and it is the part of a fair-minded prosecutor, when reminded of his indiscretion, to do all in his power to right the wrong done, remembering that he is the representative of the sovereign people of the state, who seek only the administration of justice.

There is no excuse for such misconduct in any kind of a case. If the state has a strong case it is not necessary, and if it has a close case such misconduct is gross injustice to the defendant. Furthermore, prosecutors should remember that such misconduct often leads to the expense of burdensome retrials, which can but be a serious reflection upon their regard for the welfare of the taxpayer.

3. During the cross-examination of the defendant the district attorney asked the following question: "Did you ever use a gun on a man before?" Counsel for the defendant objected to the question and requested the court to admonish the district attorney not to ask defendant such questions. The court did sustain the objection, but ignored the request to admonish the district attorney. The question is manifestly improper and unfair. Suppose the defendant had used a gun upon some man when he was fairly justified in so doing, should he have been compelled to answer the question and then present his defense? We might present many illustrations to show the gross impropriety of such a line of inquiry and the many difficulties which might arise therefrom. Counsel should have been admonished, to say the least.

In People v. Wells, 100 Cal. 459, 34 P. 1078, an almost identical situation was presented. The district attorney asked the defendant if he had not admitted in a letter the commission of a crime at a previous time. The court went into the question at length, quoting from many decisions to show the viciousness of the action of the district attorney. It said:

"It would be an impeachment of the legal learning of the counsel for the people to intimate that he did not know the question to be improper and wholly unjustifiable. Its only purpose, therefore, was to get before the jury a statement, in the guise of a question, that would prejudice them against appellant. If counsel had no reason to believe the truth of the matter insinuated by the question, then the artifice was most flagrant; but if he had any reason to believe in its truth, still he knew that it was a matter which the jury had no right to consider. The prosecuting attorney may well be assumed to be a man of fair standing before the jury, and they may well have thought that he would not have asked the question unless he could have proved what it intimated if he had been allowed to do so. He said plainly to the jury what Hamlet did not want his friends to say: `As, "well we know"; or, "we could, an if we would"; or, "if we list to speak"; or, "there be, an if there might."' This was an entirely unfair way to try the case; and the mischief was not averted because the court properly sustained the objection — though we think it should have warned counsel against the course which he was taking — and instructed the jury specially on the subject. The wrong and the harm was in the asking of the question. Of course, in trials of criminal cases questions as to the admissibility of evidence will frequently arise about which lawyers and judges may fairly differ in opinion; and in such cases defendants must be satisfied when courts sustain their objections. But where the prosecuting attorney asks a defendant questions which he knows, and every judge and lawyer knows, to be wholly inadmissible and wrong, and where the questions are asked without the expectation of answers, and where the clear purpose is to prejudice the jury against the defendant in a vital matter by the mere asking of the questions, then a judgment against the defendant will be reversed, although objections to the questions were sustained, unless it appears that the questions could not have influenced the verdict."

Other cases supporting this view are Leahy v. State,31 Neb. 566, 48 N.W. 390; Holder v. State, 58 Ark. 473, 25 S.W. 279; State v. Trott, 36 Mo. App. 29; People v. Cahoon, 88 Mich. 456,50 NW. 384. Many other cases might be cited to the same effect.

4. The trial court gave the following instruction:

"If a person kill another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given."

It is contended that the court committed error in giving this instruction. Since the judgment and order appealed from must be reversed for the reasons given, it is not necessary that we consider the correctness of this instruction, but in view of another trial we believe it advisable that we do so.

5. The attorney for the defendant objected to this instruction in the trial court upon the ground that it is applicable only in a case wherein the crime of murder is charged, and not in a case wherein an assault with intent to kill is charged. It is error to give an instruction which is not applicable to the crime alleged in the information. 16 C.J. 1041.

However, we do not say that the giving of this instruction constituted reversible error. It is not necessary to determine that question, in view of the situation. We think the court could have given an instruction relative to the plea of self-defense which would have been applicable to the case charged and proven, and which would have been free from error. Upon a retrial of the case that will be done, no doubt.

6. Counsel also complains of the giving of instruction I, which reads,

"It shall be unlawful for any person in this state, except peace officers, or persons while employed upon or traveling upon trains, stages, or other public conveyances, to wear, carry or have concealed upon his person, in any town, city or village, any dirk-knife, pistol, sword in case, slung-shot, sandclub, metal knuckles, or other dangerous weapon, without first obtaining permission from the board of county commissioners, attested by its clerk, of the county in which such concealed weapon shall be carried."

The defendant was not on trial upon a charge of carrying a concealed weapon, and the instruction should not have been given.

It is ordered that the judgment and order appealed from be reversed, and that a new trial be granted.