State v. Skaug , 63 Nev. 59 ( 1945 )

OPINION 1. The points made in the petition for rehearing were all disposed of, and we think correctly, in our former opinion; consequently a rehearing if granted would serve no useful purpose. We will refer only to one question.

2. The argument is made that this court reached an erroneous conclusion in holding that the admission of evidence of offenses unconnected with the crime charged did not constitute reversible error. We pointed out in our original opinion that this was so because all the evidence, independent of these other offenses, was so conclusive of appellant's guilt of murder of the first degree under cruel circumstances, that their admission had not resulted in a miscarriage of justice, or actual prejudice to him in respect to a substantial right. There is not anything in the petition or otherwise that causes us to doubt the soundness of our ruling. In this connection it is urged, as it was orally and in counsel's briefs on the hearing of the appeal, that if the other offenses had not been admitted in evidence the jury might have fixed the punishment at confinement in the state prison for life. We disposed of that argument also in the original opinion. The contention is merely a guess and we are not inclined to speculate concerning it. The contention would have the court indulge a presumption in favor of the appellant without any legitimate basis for the inference. This we cannot do. The statute (sec. 11266 N.C.L.) places the burden on the appellant to show an error of the kind authorizing this court to set aside the judgment. As we said in State v. Williams, 47 Nev. 279-285, 220 P. 555, 557: "From a reading of this statute it must not only appear that the trial court erred, but it must appear affirmatively that the error resulted in a miscarriage of justice, or actually prejudiced the defendant. In other words, we can indulge in no presumption favorable to the defendant. Such is the clear, unequivocal, unambiguous provision of the statute." State v. Willberg, 45 Nev. 183, 200 P. 475, and State v. Ramage, 51 Nev. 82,269 P. 489, are to the same effect. Because of the statute as thus construed, the principal case of Williams v. State,183 Ark. 870, 39 S.W.2d 295, cited in appellant's petition, is of no value as an authority here. In Arkansas, according to the case cited, the law is that evidence improperly admitted must be treated as prejudicial unless there is something to show that it is not. In Nevada, as we have seen, prejudice must affirmatively appear.

No good cause being shown for a rehearing, it is hereby denied.

TABER, C.J., concurs.

HORSEY, J., did not participate.