State v. Butner

220 P.2d 631, 67 Nev. 436, 1950 Nev. LEXIS 69

Opinions

OPINION

By the Court,

Badt and Eather, JJ.:

On May 4, 1950, after due and careful consideration, the undersigned two justices signed an order, without opinion, denying the petition. Two months of more or less continuous conferences failed to bring unanimity among the three members of the court, and we have felt constrained to express our views as briefly as may be.

With Hon. Frank McNamee, district judge, assigned to this case by the governor of Nevada by reason of the illness of the chief justice, we unanimously affirmed the judgment of the district court on the jury’s verdict of first-degree murder with the death penalty imposed. State v. Butner, 66 Nev. 127, 206 P.2d 253. Thereafter the court, with the same personnel, after due consideration but without opinion, denied a rehearing. Appellant has now filed a second petition for rehearing, frankly admitting that he asserts as error the same assignment as stated in his appeal and in his first petition for rehearing — that the trial court abused its discretion in admitting the testimony of a lay witness to the effect that in his opinion the defendant was sane at the time he shot and killed his estranged wife. In the meantime petitioner had sought a writ of certiorari from the Supreme Court of the United States upon the ground that the admission of the testimony of such lay witness was a denial of due process, 338 U.S. 950, 70 S.Ct. 479. That court however refused to issue the writ.

The petition must be denied.

We refrain from comment on the question of the propriety or legality of a second petition for rehearing raising the same assignment of error disposed of in the opinion on the appeal and raised in the first petition for rehearing.¹

We also refrain from comment on the legality or propriety of the consideration of such second petition for rehearing by a member of the court who was disabled by illness from participating in the consideration of the original appeal, from hearing the oral argument on such appeal and from participating in the determination of the first petition for rehearing — when the district judge assigned to the case, and who sat in the appeal, heard the arguments, wrote the unanimous opinion of the court and joined in the consideration of and the order denying the first petition for rehearing, was still available.² Those questions are not here passed upon.

We refer to the original opinion, State v. Butner, 66 Nev. 127, 206 P.2d 253, 255, for a recital of the facts. We consider it proper however to repeat that lay witness Watkins, an eyewitness to the shooting and whose acquaintance with the defendant covered a period of “from three to eight minutes,” first testified to the facts and that from such facts he reached the opinion that the defendant was sane at the time. On cross-examination he stated: “I noted at the time of the occurrence that when he pointed the gun at me and told me to roll her over and see if she was dead, that he wasn’t drunk, or he wasn’t crazy. I mean, he was deliberate and cold.”

No difficult question of law is involved. In this state and in virtually every other jurisdiction in the United States³ a lay witness (1) having had adequate opportunity for observation, may (2) after stating the facts, (3) give his opinion as to the sanity or insanity of the person involved, whereupon (4) the weight to be given to his testimony is a matter for the jury’s determination. (5) In determining the sufficiency of the witness’ observation of the person whose sanity is in question, no court and no text writer,⁴ out of the hundreds of cases considered, has seen fit to lay down a rule of law, other than that (6) it lies in the sound discretion of the trial judge, and that (7) the appellate court will not interfere with the exercise of that discretion, unless (8) there has been an abuse thereof.⁵ We adhere to the unanimous opinion of this court on the appeal to the effect that there was no such abuse of discretion by the trial court.

Petitioner asserts that the authorities are overwhelmingly opposed to the law asserted in the unanimous opinion of this court, but this is simply not so. On the contrary, there is little, if any, dissent as to any of the eight elements we have postulated above. The many cases cited by petitioner in which the appellate courts have held that there was no abuse of discretion in rejecting the proffered testimony, and the many cases cited by petitioner, in which the appellate courts have held there was no abuse of discretion in admitting the proffered testimony, all lend support to the view expressed in this court’s opinion. That opinion followed the rule laid down by this court in State v. Lewis, 20 Nev. 388, 22. P. 241, 246, in which, after explaining the difficulty of laying down any general rule establishing the requisite knowledge which a witness must possess to permit him to express his opinion, the court said that he is a competent witness if he “has had sufficient observation to enable him to form a belief [on the subject].” And after holding further that “the admissibility of this character of testimony must necessarily be left, to a great extent, to the discretion of the presiding judge,” the court concluded: “[A]nd when the testimony is admitted, unless it clearly appears that there has been an abuse of that discretion, the appellate court ought not to interfere.” State v. Plunkett, 62 Nev. 258, 265, 142 P.2d 893, 149 P.2d 101, followed the ruling in State v. Lewis. Petitioner seeks to distinguish the Lewis , case and the Plunkett case because in the former the witness had sufficient opportunity of observation “to arrive at a correct conclusion” as to the defendant’s sanity, and in the latter case the proffered witness had not had sufficient opportunity of observation “to be competent to express a correct conclusion” as to defendant’s sanity. (Emphasis supplied.) Dr. Bromberg, a psychiatrist called by defendant, testified that he was insane when he shot his wife. Dr. Tillim and Dr. Work, psychiatrists called by the state, testified that he was sane. Which one of them had sufficient knowledge to arrive at a “correct” conclusion? Dr. Anderson and Dr. Yalenta, not psychiatrists, testified that defendant was insane. Dr. DeCosta and Dr. Sanders, not psychiatrists, testified that he was sane. Which of them had sufficient knowledge to express a “correct” conclusion? An array of lay witnesses testified that in their opinion defendant was insane. Besides Watkins (for the admission of whose testimony a reversal is sought) other lay witnesses testified that in their opinion defendant was sane. Which of these witnesses had had sufficient opportunity of observation to express a “correct” conclusion? It is obvious that both groups, whether lay or expert, diametrically opposed as they were, could not have arrived at “correct” conclusions. This attempt to distinguish 'the Lewis and Plunkett cases is futile.

The reference to this array of expert and lay witnesses on both sides (to say nothing of the actual facts of the case and the prior threats made by the defendant, and the eleven letters written by defendant to his wife from Texas during the period preceding the homicide when defendant’s expert witnesses testified defendant was insane)⁶ also refutes the oft repeated assertions in both the first and second petitions for rehearing that appellant is being sent to his death on the testimony of Watkins. The jury heard all this evidence.

Petitioner asks that in the event we do not reverse the judgment, we modify the same by reducing the degree of the crime from first-degree murder to second-degree murder. Subdivision 6..of sec. 11032, N.C.L. 1941 Supp., provides: “When the verdict is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed.”

With reference to this section this court in State v. Robison, 54 Nev. 56, 6 P.2d 433, 436, said: “The statute does not purport to clothe the court with power to modify a judgment in a criminal case without giving or ordering a new trial, as a matter of leniency, but only when the judgment is not supported by the evidence which does show the defendant guilty of a lesser degree of the crime for which he was convicted, or of a lesser crime included therein. There was, however, as we have indicated, evidence upon which the jury could legally base a verdict of murder.”

The request for an order reducing the degree of the crime must accordingly be denied.

Petitioner asks further that, if we refuse to reverse the judgment, and if we also refuse to reduce the degree of the crime from murder of the first degree to murder of the second degree, we should nevertheless reduce the penalty from death to life imprisonment. If appellant was insane when he shot his wife, he should, under our law, suffer no penalty whatever. If he was sane, it was an atrocious murder. He was accorded two separate hearings before the board of paroles and pardons of this state. Those hearings were upon his first application for commutation of sentence and later upon his second application for commutation of sentence. In both of these hearings he was given full opportunity, through his counsel, to present such witnesses and such arguments as he might desire. Both petitions were denied. The power to commute the sentence from death to life imprisonment is vested exclusively in the board of pardons and parole commissioners by the provisions of sec. 14 of article V of the state constitution. State v. Moran, 43 Nev. 150, 182 P. 927. Initially, it is the exclusive function of the jury to fix the penalty at either death or life imprisonment. Section 10068, N.C.L.1929, as amended. 1947 Stats., chap. 91, p. 302. The request to reduce the penalty from death to life imprisonment must accordingly likewise be denied.

Petition denied.

Footnotes

1

But see State v. Jon, 46 Nev. 418, 438, 211 P. 676, 217 P. 587, 30 A.L.R. 1443, in which Coleman, J., speaking for this court, said: “Counsel for appellants have presented a second petition for a rehearing wherein they urge a point not before suggested. This court has on several occasions held that a second petition for a rehearing would not be entertained when urged by the same party. Brandon v. West, 29 Nev. 135, 85 P. 449, 88 P. 140; Ward v. Pittsburg Silver Peak Co., 39 Nev. 80-103, 148 P. 345, 153 P. 434, 154 P. 74. [q. v.]

“The practice pertaining to petitions for rehearing is governed by rule 15, which applies to criminal and civil cases alike, and the holding that a second petition for a rehearing will not be entertained in civil cases controls in criminal cases as well. State v. Hazzard, 76 Wash. 586, 137 P. 143; Ross v. State, 16 Wyo. 285, 93 P. 299, 94 P. 217; People v. Northey, 77 Cal. 618, 19 P. 865, 20 P. 129.”

2

The general rule appears to be that tbe special or pro tempore judge retains jurisdiction until tbe final determination of tbe case. See annotation 134 A.L.R. 1130; Fisher v. Puget Sound Etc. Co., 34 Wash. 578, 76 P. 107. Tbe texts appear unanimously to support tbis view.

Section 4 of article VI of tbe state constitution provides: “In case of tbe disability or disqualification, for any cause, of tbe chief justice or either of tbe associate justices of the supreme court, or any two of them, tbe governor is authorized and empowered to designate any district judge or judges to sit in tbe place or places of such disqualified or disabled justice or justices * * Tbe governor’s proclamation refers to tbis section of tbe constitution, to tbe chief justice’s inability to participate in case No. 3545, Tbe State of Nevada v. Owen Caudle Butner, and designates Hon. Frank McNamee “to bear and act in respect to said cause and said matter, and tbe matters properly connected therewith until a decision therein has been finally reached, and I authorize him to discharge according to law tbe duties of tbe said office and enjoy the same, together with all tbe powers and privileges thereunto appertaining until said cause be finally decided and determined by the said supreme court.”

3

In Massachusetts a nonexpert witness may not testify in criminal eases as to tbe sanity of tbe person in question. In New York be may only characterize tbe acts of tbe person as rational or irrational.

4

In Montana, by statute, tbe right of lay witnesses to testify is limited to those having an “intimate acquaintanceship” with the person.

5

In Nevada, “unless it clearly appears” that there has been an abuse thereof. State v. Lewis, 20 Nev. 333, 22 P. 241, 246.

6

Neither these letters nor copies thereof appear to be included in the record on appeal. Respondent however, in its reply to the second petition for rehearing, says: “Each of said letters, it is submitted, was the product of a well oriented, reasoning mind.” Petitioner does not contradict this statement, and apparently his expert witnesses did not testify contra.