STATE v. OLIVIERI
State v. Olivieri
STATE v. OLIVIERI
STATE v. OLIVIERI
No. 2680
June 17, 1925.
236 P. 1100.
James T. Boyd and Peter Breen, for Appellant:
M. A. Disldn, Attorney-General; Thos. E. Poivell, Deputy Attorney-General; L. D. Summerfield, District Attorney, and Harland L. Heward, Assistant District Attorney, for the State:
OPINION
By the Court,
Sanders, J.:
The information in this case was for "an assault with intent to kill." The defendant was convicted of "an assault with a deadly weapon, with intent to inflict upon the person of. another a bodily injury, where no considerable provocation appears." The defendant having been convicted, and a motion for new trial denied, has appealed from the judgment sentencing him to imprisonment in the state prison for the term of not less than one year nor more than two years. Upon the certificate of the trial judge of probable cause for appeal, the execution of the sentence was stayed .pending its final determination.
The appellant, herein referred to as the defendant, seeks reversal of the judgment upon the ground of the alleged misconduct of the assistant district attorney in making the opening statement of the facts the state expected to prove, claiming that said attorney was permitted, over the defendant's objection, to state facts which he could not, or would not, be permitted to prove upon the trial. The statement complained of was, in effect, that the defendant, shortly before shooting the prosecuting witness, was intoxicated and in a reckless or vicious humor, desired trouble, and was armed. The proof on the part of the state did not measure up to the statement made by its attorney.
It is permissible under our Criminal Practice Act (Rev. Laws,-secs. 6851-7529), after the reading of the indictment or information by the clerk to the jury and stating the defendant's plea, for both the'district attorney and the defendant or his attorney to outline the testimony to be offered, to the end that the jury may more clearly sift and digest the evidence. People v. Weber, 149 Cal. 325, 86 P. 671. Opening statements of counsel, however, are not evidence of any character or of anything, and cannot be so considered by the jury. As to the prosecution or defense, the statement of either is not binding as an admission of any fact, nor available against either. People v. Stoll, 143 Cal. 689, 77 P. 818. It is the duty of counsel making a statement to state the facts fairly, and to refrain from stating facts which he cannot, or will not, be permitted to prove. People v. Stoll, supra. Yet the mere violation of this rule by a prosecuting attorney is not of itself evidence that he acted in bad faith, and reversible error. People v. Wong Hing, 176 Cal. 699, 169 P. 357; People v. Davis, 26 Cal. App. 647, 147 P. 1184. Usually such an overstatement reacts upon the party making it. People v. Gleason, 127 Cal. 323, 59 P. 592; 8 Cal. Jur. sec. 323.
The experienced attorney for the defendant concedes in argument that, where the defendant is accused of an assault with intent to kill, evidence of the conduct of the defendant shortly before the shooting, indicating that the defendant was in a reckless or vicious humor and desired trouble, is admissible upon the question of intent, but contends that where, as in this case, there is no evidence to support the statement, which could only have been made for the purpose of inflaming the minds of the jurors against the defendant, such a statement constitutes reversible error. We find nothing in the record to indicate either an intentional disregard of truth, or an intent on the part of the assistant district attorney to influence the j ury by a false statement of the facts he expected to prove. The verdict itself furnishes a sufficient answer to the argument that the jurors were influenced against the defendant by the statement made by the assistant district attorney in opening the cause for the state.
There is nothing in the case of State v. Fronhofer, 38 Nev. 448, 150 P. 846, in conflict with what is said by the California authorities cited concerning opening statements. In fact, in State v. Fronhofer the court said the district attorney may state what he expects to prove without encroaching upon defendant's rights or taking chances upon committing reversible error. The court said, however, that, as the case must be reversed, upon other grounds, it need not determine whether the statement complained of should be regarded as prejudicial error.
It is contended that the trial court erred in permitting a witness for the state to testify to the effect that, within a couple of hours before the defendant committed the act of firing the shot into the body of the complaining witness, he was seen in the Tip saloon handling and pointing a revolver. We do not understand, in view of the verdict, how the defendant can justly claim that the testimony was prejudicial. The jury found that the defendant was guilty of an assault with a deadly weapon, with intent to inflict upon the person of another a bodily injury, where no considerable provocation appeared.
It is argued that, unless the jury were influenced by the statements of the assistant district attorney, and the testimony pertaining to the defendant's conduct prior to the shooting, there would have been no cause for the jury to find the defendant guilty of a much less crime than that charged in the information. Certainly the defendant is in no position to complain of statements or testimony which reacted in his favor.
The judgment is affirmed.