State v. Corinblit

298 P.2d 470, 72 Nev. 202, 1956 Nev. LEXIS 96

• Court: Nevada Supreme Court
• Decided: June 19, 1956
• Docket: 3894
• Status: Published

Opinions

OPINION

By the Court, Merrill, C. J.:

This is an appeal taken by the state from judgment of the trial court dismissing an action against the defendant for the crime of embezzlement.

The dismissal occurred during trial before a jury.. After the prosecution had completed its case the court took the case from the jury upon motion of counsel for the defendant and ordered the case dismissed for failure of the state to prove a material element of the crime charged. Upon this appeal the state contends that this action was in violation of sec. 11001, N.C.L.1929, which provides: “If, at any time after the evidence on either side is closed, the court deem the same insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury shall not be bound by such advice, nor must the court for any cause prevent the jury from giving a verdict, except as provided in sections 318, 319, and 320.”

Respondent opposes the appeal upon the merits and has also moved its dismissal, in each instance upon the ground that the matter is moot.

By sec. 11091, N.C.L.1929, it is provided that with certain specific exceptions which do not apply here “an appeal taken by the state shall in no case stay or affect the operation of a judgment in favor of the defendant.” The state concedes that the defendant has already been placed in jeopardy by the proceedings below and that under sec. 11091 he may not be retried upon the charge involved.

The state contends, notwithstanding that the rights of the parties to this litigation cannot be affected by this appeal, that this court should, nevertheless, proceed to determine the issue of law which the appeal presents. It contends that since the state has expressly been given a right of appeal from final judgment in all criminal cases (sec. 11084, N.C.L.1929), the legislature in effect has expressed a desire that this court undertake to render a decision in all such cases in order that an expression upon the law, in the public interest, might be had.

We agree with that construction. State v. Dulaney, 87 Ark. 17, 112 S.W. 158, 15 Ann.Cas. 192; State v. Laughlin, 171 Ind. 66, 84 N.E. 756; See: City of Reno v. Second Judicial District Court, 58 Nev. 325, 328, 78 P.2d 101; Note, 48 Am.St.Rep. 213. Accord: State v. Van Valkenburg, 60 Ind. 302; State v. Ward, 75 Ia. 637, 36 N.W. 765; Com. v. Bruce, 79 Ky. 560, 3 Ky. Law Rep. 366; State v. Billups, 179 Miss. 352, 174 So. 50; State v. Granville, 45 Ohio St. 264, 12 N.E. 803; State v. Gray, 71 Okl. Cr. 309, 111 P.2d 514; State v. Hamilton, 80 Ore. 562, 157 P. 796; State v. Hows, 31 Utah 168, 87 P. 163; Territory v. Nelson, 2 Wyo. 346. While sec. 11091, N.C.L., limits the effectiveness of an appeal by the state it does not limit or deny its right of appeal, but would seem expressly to recognize the right to exist. The first sentence of that section reads, “An appeal taken by the state shall in no case stay or affect the operation of a judgment in favor of the defendant * * We cannot but regard this as an expression of legislative intent that an appeal may be taken by the state notwithstanding its limited effectiveness. It is legislative intent and not wisdom with which we are here concerned.

The motion to dismiss is denied. Upon the issue presented for determination we hold that, under sec. 11001, N.C.L.1929, the trial court was in error in taking the case from the jury. People v. Roberts, 114 Cal. 67, 45 P. 1016.

The question of the constitutionality of legislation imposing upon this court advisory duties in moot criminal appeals has not been presented to this court. No implication of determination upon that question is to be drawn from this decision.

As notice of our action, It Is Ordered that remittitur issue to the court below setting forth our declaration of error.

Eather, J., concurs.