Austin v. State

Thompson, J., with whom Mowbray, J., agrees,

dissenting:

1. Our Constitution limits the appellate jurisdiction of this court in criminal cases to questions of law alone. Nev. Const. art 6, § 4; State v. Millain, 3 Nev. 409 (1867); State v. Fitch, 65 Nev. 668, 680, 200 P.2d 991 (1948); State v. Butner, 66 Nev. 127, 131, 206 P.2d 253 (1949). This command is to be obeyed, and denies our right to intrude upon the function of the jury to weigh, evaluate and credit the testimony of a witness or witnesses. The fault of the majority opinion lies in its acceptance of the whole of the testimony of the witness Martin as being true, and upon that premise concluding that he was a real as distinguished from a feigned accomplice. The jury was not compelled to credit all of the testimony given by Martin. It was entirely free to accept a portion of *590his story and disbelieve the rest. People v. Davis, 309 P.2d 1 (Cal. 1957); People v. Matlock, 336 P.2d 505 (Cal. 1959); People v. Bodkin, 16 Cal.Rptr. 506 (Cal.App. 1961). And, although the State may have been bound by the evidence given by Martin, the jury, as the trier of the facts, was not. State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962). Accordingly, it was permissible for the jury to reject that portion of Martin’s testimony inculpating him with Austin, and to accept, as true, other testimony offered by him. Martin’s implication of Austin was, by Austin, denied. The evidence was in direct conflict as to Austin’s involvement. It was the jury’s task to resolve that conflict under proper instructions from the court.

2. Of course it is true that the testimony of a real accomplice must be corroborated in order to justify a conviction. NRS 175.291. It is equally true, however, that the testimony of one who is a feigned accomplice need not be corroborated, and if believed in relevant part, will support a conviction. State v. Verganadis, 50 Nev. 1, 7, 248 P. 900 (1926); State v. Smith, 33 Nev. 438, 447, 117 P. 19 (1910); see also Ex parte Colton, 72 Nev. 83, 87, 295 P.2d 383 (1956); Teflis v. State, 84 Nev. 587, 445 P.2d 938 (1968). Whether the witness is a real or a feigned accomplice is a jury question to be resolved under appropriate instructions, State v. Verganadis, supra, and the finding of the jury is conclusive, Smith v. State, supra. This is particularly true when the evidence is in conflict. Appropriate instructions were given in this case.

3. Martin testified that he had alerted the police that Austin and Tanya Edwards were to meet in Beatty, Nevada, on a certain day and that Tanya would have the narcotics in her possession. Moreover, his testimony, if believed, established that the narcotics originally belonged to Austin and were being redelivered to him by Tanya. Austin did meet Tanya in Beatty on that day and she did have the narcotics in her possession. In short, the events which transpired gave credit to that aspect of Martin’s testimony and, as to that aspect, it was permissible for the jury to believe that Martin was a feigned accomplice who voluntarily cooperated with law enforcement to aid justice by detecting a crime.

4. Austin contends that the State failed to prove his possession of the narcotics. He had driven to Beatty to meet Tanya who had the narcotics in her handbag. As they started to drive away in Austin’s automobile the police intervened, exhibited a search warrant, searched the car and the handbag, found the narcotics, and placed Austin and Tanya under arrest. *591Austin was never observed physically to have taken the handbag into personal custody. However, if the narcotics were Austin’s, as Martin testified, Austin would be deemed to have the same possession as any person possessing the narcotics pursuant to his direction, since he retained the right to exercise dominion and control. People v. White, 325 P.2d 985 (Cal. 1958).

5. The jury’s verdict in this case should be sustained. We have no business setting aside factual determinations. The majority opinion paints the witness Martin as a rascal and then accepts his testimony as entirely true in order to rule as a matter of law, that he was a real accomplice as to all phases of the transaction whether in Oregon or Nevada. The jury was not obliged to so treat his testimony. It could sift, evaluate, accept some of it and reject the balance. The jury apparently accepted Martin’s advice to the police that a crime would occur in Beatty because it did happen precisely as he said it would. I find no legal error in that decision.