Clark v. State

Nevada Supreme Court

Clark v. State

513 P.2d 1224, 89 Nev. 392, 1973 Nev. LEXIS 530

CourtNevada Supreme Court

DecidedSeptember 10, 1973

Docket6959

StatusPublished

Cited by22 cases

This text of 513 P.2d 1224 (Clark v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Clark v. State, 513 P.2d 1224, 89 Nev. 392, 1973 Nev. LEXIS 530 (Neb. 1973).

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Opinion

OPINION

Per Curiam:

Convicted of second degree murder (NRS 200.010) and sentenced to a 10-year prison term, appellant asks us to reverse because of (1) insufficient evidence to sustain the conviction and, (2) prosecutorial misconduct.

We have examined the record and find sufficient evidence to sustain the jury verdict. See Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969).

*393 The prosecutor attempted to impeach Charles Murrell, a witness for the defense, by interrogating him about a prior misdemeanor conviction. Defense counsel objected to that question and the trial judge sustained the objection. The appellant made no move for a mistrial, nor did he request to have the jury admonished, nor did he request any special instruction to the jury when the case was submitted.

As a general rule, the failure to move to strike, move for a mistrial, assign misconduct or request an instruction, will preclude appellate consideration. State v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950). See Cook v. State, 77 Nev. 83, 359 P.2d 483 (1961); Kelley v. State, 76 Nev. 65, 348 P.2d 966 (1960); O’Briant v. State, 72 Nev. 100, 295 P.2d 396 (1956); State v. Boyle, 49 Nev. 386, 248 P. 48 (1926); State v. Moore, 48 Nev. 405, 233 P. 523 (1925). Cf. Merica v. State, 87 Nev. 457, 488 P.2d 1161 (1971); Hardison v. State, 84 Nev. 125, 437 P.2d 868 (1968); Shamberg v. State, 83 Nev. 372, 432 P.2d 500 (1967); and Mathis v. State, 82 Nev. 402, 419 P.2d 775 (1966). See also, Baker v. State, supra.

Since appellant’s contentions are grounded upon a statutory prohibition and not upon a constitutional question, and it is apparent from the record that the defense was conducted with a complete understanding of the charge and without any prejudice to any substantive rights of the appellant, we reject this assignment of error because appellant failed to move for a mistrial, or for an admonishment or special instruction to the jury concerning the prosecutor’s questioning of the witness Charles Murrell.

Affirmed.

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OPINION

Per Curiam:

Convicted of second degree murder (NRS 200.010) and sentenced to a 10-year prison term, appellant asks us to reverse because of (1) insufficient evidence to sustain the conviction and, (2) prosecutorial misconduct.

We have examined the record and find sufficient evidence to sustain the jury verdict. See Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969).

*393 The prosecutor attempted to impeach Charles Murrell, a witness for the defense, by interrogating him about a prior misdemeanor conviction. Defense counsel objected to that question and the trial judge sustained the objection. The appellant made no move for a mistrial, nor did he request to have the jury admonished, nor did he request any special instruction to the jury when the case was submitted.

As a general rule, the failure to move to strike, move for a mistrial, assign misconduct or request an instruction, will preclude appellate consideration. State v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950). See Cook v. State, 77 Nev. 83, 359 P.2d 483 (1961); Kelley v. State, 76 Nev. 65, 348 P.2d 966 (1960); O’Briant v. State, 72 Nev. 100, 295 P.2d 396 (1956); State v. Boyle, 49 Nev. 386, 248 P. 48 (1926); State v. Moore, 48 Nev. 405, 233 P. 523 (1925). Cf. Merica v. State, 87 Nev. 457, 488 P.2d 1161 (1971); Hardison v. State, 84 Nev. 125, 437 P.2d 868 (1968); Shamberg v. State, 83 Nev. 372, 432 P.2d 500 (1967); and Mathis v. State, 82 Nev. 402, 419 P.2d 775 (1966). See also, Baker v. State, supra.

Since appellant’s contentions are grounded upon a statutory prohibition and not upon a constitutional question, and it is apparent from the record that the defense was conducted with a complete understanding of the charge and without any prejudice to any substantive rights of the appellant, we reject this assignment of error because appellant failed to move for a mistrial, or for an admonishment or special instruction to the jury concerning the prosecutor’s questioning of the witness Charles Murrell.

Affirmed.

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513 P.2d 1224, 89 Nev. 392, 1973 Nev. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-state-nev-1973.

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