Azbill v. State
| Citation | 84 Nev. 345,440 P.2d 1014 |
| Decision Date | 15 May 1968 |
| Docket Number | No. 5541,5541 |
| Parties | Sylvester J. AZBILL, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
Wiener, Goldwater & Galatz, John Manzonie, Las Vegas, for appellant.
Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., Raymond D. Jeffers, Deputy Dist. Atty., Las Vegas, for respondent.
This is an appeal from denial by the trial court of habeas corpus brought to test the legal sufficiency of an indictment charging murder. The lower court found the evidence sufficient and upheld the indictment. We reverse the order and remand the cause for further action.
Ed and Rose Mapel were married for over 44 years. They experienced marital difficulties and a divorce action was pending when he died in June 1967. He left a considerable estate, most of which succeeded to Rose. They had no children.
Rose Mapel married appellant, Sylvester Azbill, shortly after her former husband's death. She was 61 years and he was considerably younger in age. They continued to reside in the wife's home until the time of her death on December 27, 1967.
The state sought indictment of appellant from the Clark County Grand Jury for murder and arson. A true bill was returned on both charges after receipt of evidence. A transcript of that evidence was made and is before us as it was before the trial court. The count charging murder was attacked by appellant through habeas corpus contending the state had failed to prove the corpus delicti of the crime by evidence admissible for that purpose. We agree.
We, as well as the trial court, are limited to the evidence considered by the grand jury in testing the legal sufficiency of the murder indictment as to either proof of corpus delicti or probable cause. Shelby v. Sixth Judicial District Court, 82 Nev. 204, 414 P.2d 942 (1966).
Careful examination of the transcript of the proceeding discloses the following evidence relating to the murder charge:
Donna Kellogg, a niece of Rose Mapel Azbill, testified she visited her aunt and new husband in their home in Las Vegas in October 1967, meeting Azbill for the first time; that previously her aunt had never smoked and drank only slightly or casually, but while she visited the home over this particular weekend she observed considerable drinking by her aunt and appellant that appellant continuously kept Rose's glass filed and gave her a bottle of liquor on Sunday morning as a present; that her aunt did not appear to be in ill health but was under the influence of alcohol most of the time she was visting; that she twice observed appellant give her aunt pills, which she took without inspecting them; that appellant in the presence of his wife told the niece he wanted to put Rose on marijuana; that as her husband he would do anything or give her anything he wanted; that appellant spoke of knockout drops or chloral hydrate; that his father was a retired doctor and that appellant had ways of getting things; that when the niece left she told appellant to be good to and care for her aunt.
Brad Azbill, 12 year old son of appellant by a previous marriage, testified he visited appellant and his wife on December 26, 1967 and stayed there all the next day; that three of his boyfriends visited him in the Mapel-Azbill home December 27; that both appellant and Rose were drinking; that he (Brad) had 'snuck' some liquor from his father; that he accompanied his father on perhaps three different occasions to the store on December 27 to get liquor and beer; that when he took the beer into Rose who was in bed in her bedroom about 7:00 p.m., he talked to her at that time but that she looked kind of sick because she had not eaten for 3 or 4 days; that she refused offers of food; that appellant asked him for the lighter fluid (or charcoal starting fluid); that he got it for appellant who took it into Rose's bedroom; that he accompanied appellant into the bedroom, where Rose was lying on her side in bed not moving or talking and appeared to be dead; that he saw appellant dump the fluid on the bed and light it; that he saw the fire start and upon expressing objection to appellant's acts, was told by appellant to 'Keep your mouth shut'; that Brad's friends, Frank, Mark and John, came into the house and said they smelled smoke.
Frank Luhman, age 15 and a friend of Brad's testified that he was at the Mapel-Azbill home on December 27; that he observed a large, partially-filled can of charcoal starting fluid in the house; that during the course of the day he saw and talked to Rose who was in the bedroom in bed; that after watching a television program in the guest house he and the other boys went to the main house, smelled smoke, saw fire in Rose's bedroom and tried to put it out; that appellant told him the smoke was from a christmas tree fire; that he nevertheless opened the door of Rose's bedroom and saw smoke; that he went outside and broke windows in the bedroom and tried to spray Rose with water and put the fire out but that he couldn't make it; that while the fire was in progress he saw Brad hold appellant around the waist and heard appellant say, 'I want to get her, I want to get her.'
Nancy Sue Lynch testified that she had known appellant since June 1967; that on December 27 she received a telephone call from appellant who stated he wanted to see her at the Mapel-Azbill residence; that she took a taxi to the home arriving about noon; that she was greeted by Brad and the other boys and taken to the guest house behind the main house; that appellant came to the guest house, talked and argued with her; that he was drunk, in a cast and on crutches; that she had sexual relations with appellant; that appellant told her that Rose Azbill was sick and she was lying there dying and that they knew in three or four days she would be dead and then he would have all that money and the house and that she (Nancy Sue Lynch) would come back to him; that before leaving the house Brad brought her a check for $50.000 in payment for the sexual relations.
Richard H. Bast, Fire Marshall, testified that the fire in the bedroom was incendiary in origin and caused by a flammable fluid.
John Wesley Grayson, Jr., M.D., a pathologist, who examined the body of Rose Azbill testified that there was no specific cause of death which could be identified in the body; that he found no evidence of disease process in Rose's body sufficient to cause death by natural means or confinement to bed; that he found no evidence of suffocation, hemorrhage, broken bones in the neck or structure of the voice box which would indicate manual strangulation, but neither could he refute suffocation or manual strangulation; that due to a lack of soot particles in the lungs and carbon monoxide in the blood stream Rose had not taken a single breath during the fire and was dead without respiration at the time the fire began; that in his opinion the medical cause of death was most probably due to a combination of barbiturates (sleeping pill type of tablets) and ethanol (alcohol).
Thorne Butler, M.D., also a pathologist specializing in toxology, testified he examined the organs of Rose Azbill's body and found present ethanol and phenobarbital, neither at a concentration level which alone would be fatal; that the combination of the two toxic substances in the level of concentration found is highly dangerous; that in many reported cases a level of concentration of the two toxic substances found in Rose Azbill resulted in death; that he found no other factors that could have caused death; that in his opinion the most probable cause of Rose Azbill's death was the combination of drugs and alcohol.
Appellant attacks the sufficiency of the evidence to sustain the indictment (NRS 172.155(2); Shelby v. Sixth Judicial District Court, supra) and contends (1) there was no evidence before the grand jury to establish the second element of the corpus delicti, i.e. the criminal agency of another person causing the death; (2) the lower court erred when it held the corpus delicti could be proved by implied admissions (admissions by action) but not express admissions (extrajudicial admissions).
Respondent, urging that we uphold the order of the lower court, contends (1) that we should infer that a criminal agency caused the death of Rose Azbill from all the evidence; (2) that there was no evidence there were any barbiturates or alcohol in the room for her to take and that someone must have taken them into her; (3) that one and one-half hours after Rose was observed in a weakened condition for lack of food, had no alcohol or pills available to her and while alone in the house with appellant, she was burned (to death).
The trial court ruled (1) that all the evidence taken before the grand jury established probable cause to believe an offense had been committed and that defendant committed it; (2) that the corpus delicti must be established by evidence independent of and prior to receipt of statements, confessions or admissions of the defendant; (3) that the corpus delicti may be established by circumstantial evidence and reasonable inferences drawn therefrom; (4) that the determination of the criminal agency factor in proof of the corpus delicti is a question for the jury and not the court.
The death of a human being may be brought about by any one of four means: (1) natural causes; (2) accident; (3) suicide; or (4) criminal means.
If a death is thought to be caused by criminal means and a person is charged with a crime for causing that death, before he can be held for trial two things must be proved by sufficient legal evidence before a grand jury if an indictment is sought or before a magistrate if a complaint is filed and a preliminary hearing is held. They are (1) the fact that a crime has been committed; and (2) probable cause to believe that the person charged committed it.
In proving the crime, which is otherwise known...
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