State v. Blackwell

OPINION 1-3. In his petition for rehearing, the defendant contends, as heretofore, that the statutory hearing to determine the degree of murder was a trial in the general sense, that the trial commenced on the entering of the defendant's plea of guilty and before the taking of testimony began, that the defendant's jeopardy arose on the entering of his plea of guilty, and that the assignment of the case after plea, by Judge Wines to Judge Brown, constituted a mistrial and an acquittal of the defendant. The defendant contends, in substance, that his plea of guilty extended to the charge as of murder only, with an implied denial of guilt as to murder with deliberation and premeditation, or of the first degree. Upon this theory of the situation, the plea was, in part, a plea of not guilty as to deliberation and premeditation. Upon a plea of not guilty, jeopardy arises only at the commencement of the trial. In this case, we have held that the "trial," or hearing commenced with the presentation of evidence, and not upon the entering of the plea. As held in State v. Ceja, 53 Nev. 272, 298 P. 658,2 P.2d 124, the hearing is not such a trial as to accord to the defendant the right to a jury. In the present case, the defendant was not denied the established rights under the doctrine of double jeopardy. Even if the hearing were a trial in the full sense, which we do not hold, the defendant incurred only one jeopardy.

4, 5. Under N.C.L. section 8407, a judge must assign a case in which he is disqualified under the terms of the section. Defendant argues, in substance, that a judge must not assign a case unless he is so disqualified. We do not believe that defendant's conclusion is a logical inference from the language of the law. The purpose of the provision is in the furtherance of justice by preventing a judge who may be biased from conducting a trial. The statute does not imply that a judge must try all cases which come before him unless he is so disqualified. Many assignments of cases have been, and currently are, made in accordance with our interpretation of the rule. Though not essential, it was proper for Judge Wines to state his reasons for making the assignment.

We adhere to our view as to the portions of the evidence on which the judge relied in arriving at the degree of the crime and the portions on which he relied on the fixing of the penalty.

6, 7. The evidence of prior crimes was not offered, in the present case, because of any similarity between such crimes and the crime charged here, but to show fear of arrest and intent to resist. It went to the motive. State v. White, 52 Nev. 325,285 P. 503; State v. Larkin, 11 Nev. 314. The commission of such offenses need not be proved beyond a reasonable doubt; the evidence need only tend to prove the accused guilty thereof. 22 C.J.S., Criminal Law, sec. 690, page 1112.

Rehearing denied.

HORSEY and BADT, JJ., concur.