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State v. Mircovich

December 31, 1913

STATE OF NEVADA, RESPONDENT, V. ANDRIZA MIRCOVICH, APPELLANT.


Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.

J. E. McNamara, for Appellant.

Cleveland H. Baker, Attorney-General, for Respondent.

By the Court, Talbot, C. J.:

Defendant was convicted of the crime of murder in the first degree under an indictment charging him with the killing of John Gregovich by stabbing with a knife at Tonopah on the 14th day of May, 1912. Upon the trial the case was submitted to the jury upon the evidence introduced on the part of the state.

[1] Two errors are assigned as grounds for reversal of the judgment. It is contended that the court erred in admitting certain statements and admissions in the nature of a confession made by defendant to certain officers in Nye County shortly after the assault and while he was in custody. The proof shows that these statements were made voluntarily by the defendant, and without the use of force, threats, inducements, or promises, or hope of reward; but there is no showing that, previous to making such statements, the officers having defendant in custody informed him that, if he made any statements, they might be used against him. This assignment of error is without merit, as there is no statute in this state, as there is in a few states, forbidding the admission of a confession made by a defendant in custody, unless it appears that he was warned that what he should say might be used against him. Cyc. vol. 12, p. 463, treating this question, says: “The fact that a voluntary confession is made without the accused having been cautioned or warned that it might be used against him does not render it incompetent, unless a statute invalidates a confession made where the accused is not first cautioned. In Texas, by statute, a confession made by a prisoner while in custody is inadmissible, unless he was warned that what he

[35 Nev. 485, Page 489]

should say might be used against him; and there are similar provisions in other states. It is not the duty of a police officer, in the absence of a statute, to caution a prisoner as to the consequences of making a statement, if the statement is voluntary, but merely to refrain from inducing him to make a statement.”

[2] If we had a statute providing that statements made by a person under arrest cannot be proven unless it is shown that they have been made after he has been warned that they may be used against him, still the admission of the testimony to prove the declarations of the defendant in regard to the knife would be error without prejudice, because without this testimony it is conclusively shown that the defendant killed the deceased with a knife. If there were nothing to indicate the commission of the offense, except circumstantial evidence which left a doubt, the question as to whether it was error to admit evidence that the defendant made admissions or said that he had the knife with which the deceased was killed, without first showing that he had been warned that any declarations he might make could be used against him, might be material, while it is not so in the face of the direct and undisputed evidence that the accused killed the deceased with a knife. The same may be said regarding evidence of other declarations. The Revised Laws provide at section 7302 that: “After hearing the appeal, the court shall give judgment without regard to technical error or defect which does not affect the substantial rights of the parties”; and at section 7469 that: “No judgment shall be set aside, or new trial granted, in any case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter or pleading or procedure, 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.” These provisions have been slightly modified or broadened

[35 Nev. 485, Page 490]

by the new code, but are substantially similar to the one passed at the first session of the territorial legislature and in force for more than fifty years; and they are nearly the same as the one more recently recommended by the American Bar Association. (Stats. 1861, p. 499, sec. 589; Comp. Laws, 4554.)

This court has often applied this statute in murder and other cases, and refused to set aside convictions or remand actions for new trials for errors which did not affect the substantial rights of the accused. (State v. Williams, 31 Nev. 360; State v. Jackman, 31 Nev. 511; State v. Skinner, 32 Nev. 70; State v. Simpson, 32 Nev. 138, Ann. Cas. 1912c, 115; State v. Petty, 32 Nev. 384, Ann. Cas. 1912c, 223; State v. Martel, 32 Nev. 395; State v. Depoister, 21 Nev. 107; State v. Vaughan, 22 Nev. 285; State v. Hartley, 22 Nev. 342, 28 L. R. A. 33; S. N. M. Co. v. Holmes M. Co., 27 Nev. 108, 103 Am. St. Rep. 759; State v. Smith, 33 Nev. 459.)

In State v. Buster, 23 Nev. 348, it was held that the failure of the trial court to make the proper order striking out the testimony of a witness concerning a confession was harmless error, because the same confession was conclusively established by several other witnesses whose testimony was not contradicted. As the evidence was clear and undisputed that Mircovich killed Gregovich by stabbing him with a knife, in the presence of numerous people, at the railroad station, the jury could not have found otherwise, regardless of whether testimony relating to a confession or statements concerning the knife were properly or improperly admitted. The closing argument of the district attorney was an appeal to the jury to uphold the law and fix by their verdict the death penalty. Upon the conclusion of this argument, exception was taken thereto by counsel for defendant. No particular portion thereof was at the time pointed out as objectionable; nor was any request made that the court instruct the jury to disregard the same or any portion thereof. The court, in the course of its instructions, admonished the jury as follows: “You should bear in mind that it is your duty to determine what the facts in this case are from the

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evidence, and not from the statements of the judge, or from the statements made by any attorney during the progress ...


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