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State v. Milosovich

December 31, 1918


Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.

M. B. Moore and Hoyt, Gibbons, French & Springmeyer, for Appellant.

Geo. B. Thatcher, Attorney-General, and Edward F. Lunsford, District Attorney, for Respondent.

By the Court, Coleman, J.:

Appellant, having been convicted of murder in the second degree, has appealed. We do not think it necessary to make a detailed statement of the facts, as sufficient will be stated in considering each error to make our point clear.

1. It is first contended by counsel for appellant that the judge who presided at the trial was guilty of conduct prejudicial to the defendant in inquiring of each of the jurors, when examined on their voir dire, if he entertained any conscientious scruples against the infliction of the death penalty. The indictment charged a crime for which the jury could have imposed the death penalty, and there was nothing to indicate to the judge at the time of the selection of the jury that the evidence would not justify such a verdict; and, though the district

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attorney in his opening statement indicated to the jury that he would not ask for the death penalty, that was after the jury had been selected and sworn to try the case. We are not convinced that, when the indictment and evidence justify a verdict fixing the death penalty, the district attorney can prevent the jury from finding a valid verdict fixing such penalty; but we are convinced that when the indictment charges a crime for which the death penalty may be fixed, and there is nothing to indicate to the court that the evidence will not sustain nor the district attorney ask for such a verdict, the court commits no error in inquiring of the jurors as it did in the case at bar.

Error is assigned to the action of the court in overruling challenges of certain jurors. The challenges were not specific, as required by section 7150 of the Revised Laws. We have several decisions holding adversely to the contention of appellant, and there is no reason to consider this assignment, further than to say that it is without merit. State v. Raymond, 11 Nev. 99; State v. Salgado, 38 Nev. 64, 145 Pac. 919, 150 Pac. 764.

2. The assignment of error based upon the refusal of the court to sustain the challenge to the juror Finn demands consideration. This juror stated upon his voir dire, in response to questions by counsel for defendant, that he had talked about the case with persons who purported to know the facts, and that he had formed an unqualified opinion as to the guilt of the defendant. Thereafter he was examined by the district attorney. We quote:

“Q. Mr. Finn, the party about whom you have been speaking as having told you something about the case, is that any of the witnesses whose names have been mentioned here? A. No.

“Q. Did that party say they had talked to any of the witnesses to the transaction? A. Did not.

“Q. Did they express an opinion in your presence? A. Yes, sir.

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“Q. Did they claim to be present at the time this thing happened? A. No.

“Q. Just expressed their opinion based upon reading the articles about it in the paper? A. I think so, and what they heard.

“Q. And what they heard? A. Yes.

“Q. Did they state to you they had heard from any eyewitnesses what had occurred? A. No, they didn't state that they heard it from any eyewitness.

“Q. Just general rumor, was it? A. That is what I should judge.

“Q. Mr. Finn, if chosen as a juror, in this case, don't you suppose you could set aside your opinion and listen to the evidence and try it squarely upon the evidence you hear on the stand here, without reference whatever to the opinion that you might have at this time? A. I think so.

“Q. Think you can. You have served as juror in criminal cases before, haven't you? A. Yes, sir.

“Q. Do you think there is any reason in your mind at this time why you could not serve fairly and impartially in this trial? A. I don't know of any.

“Q. And any opinion that you might have at this time, if sworn as a juror, you would set aside and just try this case upon the evidence you hear here in court, is that true? A. I would.

The Court:

“Q. Do I understand, Mr. Flint, that what you heard was based on public rumor and publications in the newspapers? A. Yes, sir.

“Q. You understand the rule of law that a defendant in a criminal case is presumed to be innocent until he is proven guilty beyond a reasonable doubt? A. Yes, sir.

“Q. You would give that benefit—the benefit of that presumption—to the defendant in this case, if you sat as a juror? A. I would.

“Q. And I understand that you can and will, notwithstanding the opinion that you have entertained or do

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entertain, that you will thoroughly and impartially act upon the matters in this case, that is, from the evidence and the instructions of the court? A. Yes, sir.

“Q. And you will consider nothing else? A. No sir.”

We think this assignment falls squarely within the rule laid down by this court in State v. Williams, 28 Nev. 395, 82 Pac. 353, wherein it is said:

“In this era of education, intelligence, and diffusion of knowledge, when the telegraph and the cable flash information from the most distant parts of the earth in a few seconds, when an army of men are employed in gathering and reporting the important happenings of the world, and improved printing presses, invented and operated by ingenious minds and cunning hands, are publishing millions of papers daily, the man who does not read and think and form opinions regarding such crimes as murders committed in his locality is better fitted to have lived in the dark ages than to serve on juries in the twentieth century. Still, in order to be a good juror, any opinion he may have must be a qualified one, and he must conscientiously feel that he can discard it in arriving at a verdict, and realize that under our system of jurisprudence persons charged with crime are not to be prejudged or convicted upon newspaper reports or hearsay, or found guilty by anything excepting evidence introduced in court under the sanctity of an oath or in conformity to legal practice. Every one, however humble or great, accused of crime, is entitled to be tried by jurors whose minds will be guided by such evidence only in arriving at their verdict. It is apparent that the juror was not disqualified under this test, that the opinion he possessed was only such an one as any disinterested, intelligent citizen who reads and thinks might form, and, although that opinion would naturally remain in his mind until something occurred to remove it, it appears to have been qualified by a doubt as to the truth or falsity of the information on which it was based, and that it was not a settled conviction regarding

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the defendant's guilt which would weigh with him in considering the testimony or swerve or influence his mind in arriving at a verdict.”

3. It is earnestly insisted by counsel for appellant that the court committed prejudicial error in connection with the opening statement of counsel for appellant. We quote from the record:

“Mr. Moore—We will also show that Eva Dowling was not only drunk on that night, but that she is known as an habitue of the cabarets, getting drunk on frequent occasions.

“Mr. Lunsford—Now, just pardon the ...

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