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State v. Petty

December 31, 1910


Appeal from the District Court of the Second Judicial District of the State of Nevada, Washoe County; John S. Orr, Judge.

F. B. Mayers, for Appellant.

R. C. Stoddard, Attorney-General, L. B. Fowler, Deputy Attorney-General, W. Woodburn, Jr., District Attorney, M. B. Moore, Assistant District Attorney, for Respondent.

By the Court, Norcross, C. J.:

On the 9th day of March, 1909, upon a public street in the Town of Sparks, Washoe County, defendant killed his wife, May Petty, by shooting her five times with a pistol. He was indicted for this uxoricide, and upon trial a verdict was returned of murder in the first degree, with punishment fixed at death. Judgment was entered in accordance with the verdict. From the judgment and from an order denying defendant's motion for a new trial, defendant has appealed.

Upon the trial defendant relied upon the defense of sadistic insanity. In support of this defense, the defendant went upon the stand and testified in his own behalf. He also called as a witness Dr. A. H. Hepner, who qualified as an expert, and testified, among other things, to having made a physical examination of the defendant prior to the trial, and detailed certain physical conditions existing in the defendant, which, in part, formed a basis for his opinion that at the time of the killing the defendant was insane.

For the purposes of rebuttal, counsel for the state requested the court to appoint three physicians and to order that the defendant be submitted to an examination by them relative

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to the physical conditions detailed in the testimony of Dr. Hepner. Over the objection of counsel for defendant, the order as requested was made, and the following-named physicians were appointed by the court for the purpose of making the examination: Dr. B. F. Cunningham, Dr. W. H. Hood, and Dr. L. T. Ritchie. The examination was made in a suitable room in the county jail in the presence of counsel for the state and for the defendant. Each of the said physicians so appointed by the court subsequently, upon rebuttal and over the objection of defendant, testified to the facts disclosed by their examination of the person of defendant within the limits specified in the order of the court. Exceptions to the order directing the examination, and to the testimony of the appointed physicians, were based upon the contention that the constitutional guaranty that no person shall be compelled, “in any criminal case, to be a witness against himself,” was violated. (Const. Nev. art. 1, sec. 8.) We think the court did not err in the order or in the admission of the testimony.

Considering this constitutional provision, this court by Hawley, J., in State v. Ah Chuey, 14 Nev. 83, 33 Am. Rep. 530, said: “The constitution means just what a fair and reasonable interpretation of its language imports. No person shall be compelled to be a witness—that is, to testify—against himself. To use the common phrase, it ‘closes the mouth' of the prisoner. A defendant in a criminal case cannot be compelled to give evidence under oath or affirmation or make any statement for the purpose of proving or disproving any question at issue before any tribunal, court, judge, or magistrate. This is the shield under which he is protected by the strong arm of the law, and this protection was given, not for the purpose of evading the truth, but, as before stated, for the reason that in the sound judgment of the men who framed the constitution it was thought that, owing to the weakness of human nature and the various motives that actuate mankind, a defendant accused of crime might be tempted to give testimony against himself that was not true. * * * From whatever standpoint this question can be considered, the truth forces itself upon my mind that no evidence of physical facts can be upon any established principle of law, or upon any

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substantial reason, be held to come within the letter or spirit of the constitution. The question of whether or not the court erred in compelling the defendant, Ah Chuey, to exhibit his arm must, in my opinion, be determined upon other grounds. Was the defendant compelled to exhibit himself in such a manner as to unjustly or improperly prejudice his case before the jury? Did the act in question have a tendency to degrade, humiliate, insult, or disgrace the defendant? Did the judge, by the act in question, convey to the jury the idea that he believed the defendant to be guilty of the offense charged against him? If either of these questions ought to be answered in the affirmative, then I think the defendant should be granted a new trial. A defendant in a criminal case is entitled to a fair and impartial trial, free from insult or obloquy, and courts cannot be too particular in guarding his personal rights and privileges. He should never be compelled to make any indecent or offensive exhibition of his person for any purpose whatever. The judge presiding at the trial should not express any opinion upon the facts (State v. Tickel, 13 Nev. 502, and the authorities there cited), or compel the defendant to do any act which would clearly convey to the jury an intimation that the defendant was guilty of the offense charged, or to exhibit himself in such a manner as to prejudice his case before the jury.”

While this opinion was rendered more than thirty years ago, it is recognized as a leading case construing this provision which exists in most of the state constitutions and in the federal constitution. Not all of the authorities are in harmony with the Ah Chuey case, but the weight of authority is. The reasons supporting the conclusions reached in that case are convincing, and need not be repeated here. In this case the defendant had interposed the defense of insanity, had offered himself as a witness solely in support of this defense, had been physically examined by a physician for the purpose of enabling such physician to testify concerning his physical condition as bearing on his alleged insanity, and such physician had testified in regard thereto. He could not therefore interpose any legal objection to the state having the benefit of the same character of expert examination which he had

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through the testimony of his physician submitted to the jury. The recent case of People v. Furlong, 187 N. Y. 198, 79 N. E. 978, presents a situation somewhat similar to that here involved. We quote from the opinion the following: “The only exceptions taken by the defendant that are urged before us relate to the examination of the defendant by Dr. Flint during one of the adjournments of the court, while the defendant was on trial, and also to the subsequent testimony of Dr. Flint, in which he related to the jury the conversation which he had with the defendant, and described what he found upon a physical examination. It is claimed in behalf of the defendant that such examination was obtained by entrapping the defendant, and that it was generally unfair and prejudicial to him, and that he was thereby compelled to give testimony against himself in violation of his constitutional rights. * * * The defendant was distinctly told that he might decline to answer any questions that were put to him, and that anything that he said in answer to questions might be used against him. * * * The record does not disclose any justification for the claim that Dr. Flint was used to entrap the defendant into making a statement for use against him on the trial. There is no denial of the testimony that Dr. Flint examined the defendant after being told that it was requested by the court, and that the examination was made without the knowledge or presence of either counsel. We are not to pass upon the question whether due courtesy was shown to the counsel engaged in the trial in holding the examination without notifying them. * * * The statement made to Dr. Flint was not within the constitutional prohibition against compelling a defendant to give testimony against himself. (People v. Truck, 170 N. Y. 203, 63 N. E. 281; People v. Gardner, 144 N. Y. 119, 38 ...

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