STATE v. CEJA
State v. Ceja
STATE v. CEJA
STATE v. CEJA
No. 2924
April 27, 1931.
298 P. 658.
John W. Burrotos and Frame & Raffetto, for Appel-' lant:
M. A. Diskin, Attorney-General; Wm. J. Forman, Deputy Attorney - General; and Merwyn H. Broton, District Attorney, for the State:
OPINION
By the Court,
Coleman, C. J.:
The defendant was charged in the lower court by information with the crime of murdering one Charley Fong by stabbing him with a sharp instrument. Upon being brought into court for arraignment the court asked the defendant if he had an attorney to represent him. The defendant stated that he had no attorney, whereupon the court informed him that he was entitled to be represented by counsel and that it was the duty of the court to appoint an attorney to represent him. The defendant stated that he did not desire counsel, and consented to be arraigned without being represented by counsel. The formality of arraignment then took place, and after the information was read to the defendant and a copy thereof handed him, with the indorsements thereon, including the list of witnesses, he entered his plea of guilty to the charge. It being the duty of the court to fix the punishment and to examine witnesses, the court thereupon appointed Thomas A. Brandon, Esq., as counsel for the defendant. In due time the testimony of witnesses was taken and certain depositions were read into the record. Thereafter arguments of counsel were heard by the court. After due deliberation, the court entered an order finding the defendant guilty of murder in the first degree, and there being no mitigating circumstances, fixed the penalty at death, and accordingly made its order.
The defendant has appealed. No bill of exceptions containing the evidence is before us, only the bare court record.
The first point made by the defendant is that the information does not state facts sufficient to constitute murder of the first degree. We cannot agree to the contention. The information is substantially in the language of section 10849, N. C. L., which provides what it shall contain. The point made was raised and disposed of by this court adversely to defendant's contention in the case of State v. Mangana, 33 Nev. 511, 112 P. 603, wherein it was carefully considered.
There is nothing to the contention that the defendant was denied a constitutional right in that he was not afforded the right of trial by jury. There was no issue to try. The plea of guilty obviated that necessity.
It is asserted that a fundamental error was committed by the court in admitting the depositions of two witnesses, in that the defendant was entitled to be confronted by the witnesses. ' There is no showing that any objection was made to the admission of the depositions, hence we cannot consider the point. State v. Lawrence, 28 Nev. 440, 82 P. 614. Furthermore, the so-called depositions are nothing more than testimony of two witnesses given at the preliminary hearing, which, pursuant to statute, when duly certified to, may be read in evidence under certain conditions. We must presume that the conditions existed. No right of the defendant was violated in this connection.
Considerable criticism is indulged in by counsel for the defendant because of the fact that no counsel was appointed to represent the defendant until after his plea, and of the further fact that the defendant was required to plead at the time of the arraignment, instead of on a subsequent day. Section 10886, N. C. L., provides that on arraignment a defendant must be allowed further time in which to plead, if he requires it, and section 10883 provides that upon arraignment a defendant must be informed by the court of his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel, and if he desires and is unable to employ counsel, the court must assign counsel to defend him.
Both of the provisions of the statute were complied with, hence the defendant was not deprived of any legal right. We think, however, that in a case so serious as one involving the death penalty, and even in others in which grave consequences are involved, it is the better practice to appoint counsel before the defendant is asked to enter his plea.
It is further urged in behalf of the defendant that the court committed prejudicial error in hearing testimony of a witness whose name was for the first time indorsed upon the information by permission of the court after the witness had testified. It does not appear that any objection was made to the procedure at the time, hence, according to strict rules governing such matters, the contention cannot now be urged; however, we do not think the defendant was denied a right materially affecting his cause, in view of Stats. 1913, p. 293, which permits the calling of witnesses not theretofore learned of. We must presume that it was such a witness that gave testimony.
The contention that the court in announcing its conclusion after the hearing of the evidence, wherein it adjudged the defendant guilty of murder in the first degree, failed to find that the crime was committed in the perpetration of robbery and therefore omitted a vital act which must result in a reversal of the judgment, is- without merit.
Our crimes and punishment act (section 10068, N. C. L.) provides that all murder committed in the perpetration or attempted perpetration of any arson, rape, or robbery shall be deemed murder of the first degree. A jury in bringing in a verdict in a murder case irf which it is contended that the murder was committed in the perpetration of robbery, under the instructions of the court, considers the evidence, and if it finds therefrom that murder was committed in the perpetration of robbery, may bring in a verdict finding the defendant guilty of murder of the first degree, without stating in its verdict that the crime was committed in the perpetration of robbery. The finding of the existence of the robbery is a prerequisite to the fixing of the crime as of the first degree, and hence it is not necessary that the jury state in its verdict that it finds that the crime was committed in the perpetration of robbery. The section mentioned also provides that in case of confession in open court of his guilt by the defendant the court shall proceed to examine witnesses to determine the degree of the crime. The section also provides: "Every person convicted of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury ; or upon a plea of guilty the court shall determine the same."
The finding by the court in the instant case that the crime was committed in the perpetration of robbery was also a prerequisite to the fixing of the crime as of the first degree, hence the finding of the court is sufficient.
It is the contention of defendant that the court in fixing the degree of the crime assumed one of the prerogatives of the jury, and, in effect, that the statute conferring that authority upon the court is in conflict with the constitution of the United States, in that the defendant was denied a trial by a jury. One weakness of the contention is in the fact that there was no issue to try. That was eliminated by the plea of guilty. But a conclusive answer to the contention is that the supreme court of the United States rejected the contention in Hallinger v. Davis, 146 U. S. 314, 13 S. Ct. 105, 36 L. Ed. 986. Numerous other courts have so held, among them: West v. Gammon et al. (C. C. A.) 98 F. 426; Craig v. State, 49 Ohio St. 415, 30 N. E. 1120, 16 L. R. A. 358; State v. Almy, 67 N. H. 274, 28 A. 372, 22 L. R. A. 744; People v. Roberts, 211 Mich. 187, 178 N. W. 690, 692, 13 A. L. R. 1253; People v. Noll, 20 Cal. 164; Dailey v. State, 4 Ohio St. 57.
Error is also assigned on behalf of the defendant in that the statute relative to crimes and punishments, as amended by Stats. 1919, c. 248, is unconstitutional because the title of the act is misleading and does not clearly express the object and purpose of the act, in that it relates merely to procedure in criminal cases, and not to crimes or the punishment thereof, and also that the act relates to more than one subject, which is not expressed in the title. This assignment of error is not discussed by counsel and hence may be held to be waived; however, we may say that a similar contention was made in State v. Davis, 14 Nev. 443, 33 Am. Rep. 563, and there held to be without merit.
August 5, 1931.
John W. Burr otos, for Appellant:
Gray Masliburn, Attorney-General; W. T. Mathetos, Deputy Attorney-General; and Menoyn H. Brown, District Attorney, for tbi-e State.
No error appearing, the judgment appealed from is affirmed, and the lower court is directed to fix the time and make the proper order-for the carrying into effect by the warden of the state prison the judgment rendered.