Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
W. H. Virden, for Appellant.
Geo. B. Thatcher, Attorney-General, for Respondent.
By the Court, Norcross, C. J.:
1-3. Appellant was convicted of the crime of burglary of the first degree, and appeals. Evidence was introduced establishing the fact that a burglary was committed on the night of the 25th day of July, 1915, in the city of Reno, and certain jewelry taken from a trunk stored in a building upon the property of one R. T. Harwell. Upon the afternoon of the day following the burglary appellant was arrested by a police officer of the city of Reno while in the act of attempting to dispose of the stolen jewelry, and was at once taken to the police station. The arresting officer and another member of the city police force, over the objection of counsel for the defendant, were permitted to testify to statements made by the defendant to the effect that he purchased a ring, which was part of the stolen jewelry, in the city of Chicago, and a necklace, which was also a part of the stolen jewelry, in the city of Seattle. Shortly subsequent to making these statements the defendant made a confession to the chief of police that he had committed the burglary. Error is assigned in the admission of the statements and confession upon the ground that no proper foundation had been laid. The transcript of the testimony discloses no objection whatever to the admission of the confession. Counsel for appellant advises the court that objections to the admissibility of the confession because a proper foundation had not been laid may have been inadvertently omitted in transcribing the record. No proof appears that this is the case, and no request
has been made for diminution of the record; hence the suggestion of counsel for appellant cannot be considered. The objection which counsel for appellant asserts was, in fact, made, even if embodied in the record, would not justify this court in holding the same to be substantial error. Assuming that the same objection was made to the testimony of the chief of police as that made to the testimony of the two other officers, the error, if any, amounts simply to the sustaining of an objection to questions propounded to the witnesses whether any inducements, threats, or offers of reward were made to procure the statements or confession. Even assuming that the court may have committed technical error in permitting the witnesses to testify to conclusions, it also appears that the whole conversation between the defendant and the officers was detailed, and from all of the facts and circumstances there was no room for serious question that the statements and confession were made otherwise than freely and voluntarily. Besides, it was not necessary to lay any foundation for the admission of the statements made by the defendant as to how he came into possession of the jewelry in question.
Self-serving statements made by or for the accused out of court, explaining suspicious circumstances, may be proved against him, and their falsity may then be shown. The fact of their falsity admits them as indicating an attempt to explain away incriminating circumstances by falsehoods. (12 Cyc. 429.)
Error is assigned in the refusal to give certain instructions requested by defendant. With the exception of one requested instruction, hereafter to be referred to, the instructions requested and refused, so far as they were material, were substantially covered by other instructions given by the court.
4. Error is assigned in the failure of the court to give an instruction of its own motion upon the maxim, Falsus in uno, falsus in omnibus. If counsel for defendant was of the opinion that an instruction of
this kind was material, it was incumbent upon him to request the same.
5. The following instruction requested by counsel for the defendant was refused:
The defendant has offered himself as a witness, and has testified in his own behalf. This is his legal right, and you are not permitted under the law to discredit or reject his testimony simply on the ground that he is the accused, and on trial on a criminal charge.
Section 310 of the criminal practice act (Rev. Laws, 7160), as amended by the legislature of 1915 ...