Hanley v. State

• Decision Date: 12 March 1969
• Docket Number: 5745,Nos. 5744,s. 5744
• Citation: 85 Nev. 154,451 P.2d 852
• Parties: Thomas Burke HANLEY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 852

451 P.2d 852

85 Nev. 154

Thomas Burke HANLEY, Appellant, v. The STATE of Nevada, Respondent.

Nos. 5744, 5745.

Supreme Court of Nevada.

March 12, 1969.

Harry E. Claiborne, Albert M. Dreyer, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty. and Earl Gripentrog, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

MOWBRAY, Justice.

I. CASE NO. 5744

Thomas Burke Hanley has been charged with the murder of Ralph Alsup, and he is awaiting arraignment in the district court, pending the outcome of this appeal from the district judge's order denying Hanley's application for a writ of habeas corpus. This petition for habeas is predicated upon Hanley's assertion that there was insufficient evidence presented at the preliminary hearing to establish the necessary probable cause to hold him to answer in the district court.

About 11 o'clock in the evening of January 19, 1966, Alsup returned to his residence in Clark County after attending a political meeting in Las Vegas. He never reached his house, because as he entered the gate leading into his yard he was ambushed at rather close range by an unknown assailant, who felled him with a blast from a shotgun. Mrs. Alsup, who was in their home preparing to retire for the evening, heard the 'explosion' and rushed to her husband's aid. Alsup died almost immediately. The sheriff's authorities were called, and they conducted their usual investigation. The chief medical examiner for the county, Dr. James Clarke, did an autopsy on Alsup's remains.

NRS 171.206 ¹ requires the magistrate to hold a defendant to answer if it appears from the preliminary examination 'that there is probable cause to believe an offense has been committed and that the defendant has committed it.' Appellant does not question that sufficient proof of the corpus delicti of the crime, i.e., the fact of death and the criminal agency of another causing death, has been established. Sefton v. State, 72 Nev. 106, 295 P.2d 385 (1956); State v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950). The issue presented for our determination is whether the evidence adduced at the hearing establishes 'probable cause' to believe Hanley guilty of the offense charged.

Before we turn to consider the evidence for the sole purpose of making that determination, it would be well to reiterate the guidelines this court laid down in Beasley v. Lamb, 79 Nev. 78, 80, 378 P.2d 524, 525 (1963), where we said:

'* * * it is not our function, nor was it the function of the magistrate at the preliminary hearing, or the district court upon the habeas corpus proceeding, to pass upon the sufficiency of the evidence to justify conviction. State v. Fuchs, 78 Nev. 63, 368 P.2d 869. Nor do the words 'sufficient cause,' (the present statute has substituted 'probable cause') as employed in the statute, require the state to negate all inferences which might excuse or explain the accused's conduct. Goldblatt v. Harris, 74 Nev. 74, 322 P.2d 902.'

If the evidence produced at the preliminary hearing will establish a reasonable inference that Hanley killed Alsup or aided or abetted one who did, whether present or not, or directly or indirectly counseled, encouraged, or hired another who did so, probable cause to order him to answer has been established. NRS 195.020 ²; Beasley v. Lamb, supra.

Deputy Sheriff Walter Butt testified that he found footprints of one person starting approximately 1 mile from Alsup's home which led to a pickup truck parked in Alsup's yard; that from the tracks made around the truck it appeared the person had been waiting for a period of time at that location; that the same tracks returned to the point of origin where, from the markings in the desert, it appeared a vehicle had been parked; that in the vicinity of the return path parts of a shotgun, i.e., a gun barrel, a stock, and a clip, were found.

Alexander Marathon testified that this shotgun belonged to Hanley. Sheriff's Crime Lab Commander Lee McCullough identified photographs of the scene of the homicide, and he testified that, from the physical evidence presented, it was his opinion that Alsup was shot by a person standing near the right front fender of the pickup truck.

Alexander Marathon testified that he had known Hanley for several years and that from December 28, 1965, through January 6, 1966, he had lived in Hanley's home in Las Vegas. He testified regarding a conversation he had with Hanley in Hanley's house shortly after Christmas 1965, as follows:

'Q. (By Mr. Gripentrog) First of all, where did the concersation take place?

'A. At Tom's home, 1621 Ogden.

'Q. Who was present?

'A. Tom was by himself at the time and asked me if I was willing to make some money, if I was interested in making some money, and I said, 'Concerning what?

'He said, 'Well, we have somebody that is a good friend of mine that has to be eliminated.' And then he went on to tell me that it was Ralph Alsup, Sr., and I told him I wasn't interested for the simple reason Ralph had always been good to me. I didn't want to get involved in it because I do--I had been in trouble before and I just didn't want nothing to do with it.

'Q. That statement was that he wanted to eliminate Ralph Alsup; is that--

'A. Yes, sir.

'Q. Did he mention to you how much money you would stand to make if you eliminated--

'A. Yes, it was $5,000.'

Marathon identified photos of the other defendants, Carl Black and Norman Call. He claims that the following conversation occurred in the Hanley home on December 28, 1965, when he, Hanley, Black, Call, Mary Lou Hanley, Barbara Simons, and an Alphonse Bass were present:

'Q. (By Mr. Gripentrog) What was said by Mr. Hanley?

'A. Well, as I remember, the conversation started that--Mr. Black started the conversation, said, 'Tom, we've arranged for a trigger man to take care of Alsup. All we need is the money and the job will be taken care of.'

'Q. What did the defendant Hanley say at that time?

'A. Well, he said, 'Okay.'

'He said, 'Do you think you fellows can handle it properly?' And Mr. Black assured him that the job would be done the proper way.

'MR. GALE: 'Mr. Black assured'--I will move to strike that as being a conclusion of the witness.

'THE COURT: Is that the statement that was made? 'THE WITNESS: Mr. Black said that the job would be done properly.

'THE COURT: That will be stricken.

'Q. (By Mr. Gripentrog) What else was said at this time?

'A. Well, there was a discussion of money. There was five thousand dollars involved. They were guaranteed three thousand in advance and two thousand when the job was completed.

'MR. GALE: I would move 'They were guaranteed' be stricken as a conclusion of this witness.

'THE COURT: Only what was said. Is that what was said?

'THE WITNESS: Well, he told Tom, Mr. Black, that he would receive three thousand dollars in front, and after Mr. Alsup was dead he would get the remaining two thousand dollars.

'THE COURT: The other part will be stricken--'guaranteed.'

'Q. (By Mr. Gripentrog) And what was said next?

'A. They wanted to know what type of equipment would be used and at that time they said a shotgun would be the weapon.

'Q. Who said a shotgun would be the weapon?

'A. Mr. Tom Hanley.

'Q. Mr. Black asked what type of equipment would be used?

'A. He was told what type of equipment would be used.

'Q. By the defendant Hanley?

'A. Yes, sir.

'Q. And what else was said?

'A. Well, at the time the meeting broke up and they were supposed to meet around the first of the year to go ahead and discuss the rest of the details.'

Appellant concedes that the testimony adduced at the hearing tends to establish that appellant hired and paid two men to murder the deceased and that the component parts of a shotgun which belonged to Hanley were found from 1 to 3 days after the murder at varying distances from a path of footprints leading to and from the scene of the crime. Appellant urges that this is insufficient to show probable cause that Hanley committed the offense charged, because the State failed to prove that the gun found was one used to kill Alsup, and that there is a total absence of evidence showing that Call or Black or anyone connected with the shot Alsup. Therefore, the issue we must decide is whether a person may be held to answer for inducing or hiring another to commit a crime, in the absence of any proof that the person hired did the actual killing. We conclude that he may be held to answer. In Gray v. United States, 104 U.S.App.D.C. 153, 260 F.2d 483, 484 (1958), the court held: 'As said in Meredith v. United States, 4 Cir., 1956, 238 F.2d 535, 542,

"conviction of the principal actor is not a prerequisite to conviction of the aider and abettor. It need only be established that the act constituting the offense was in fact committed by someone. * * *'

'Accord, Colosacco v. United States, 10 Cir., 1952, 196 F.2d 165, 167.' See also Cross v. United States, 122 U.S. App.D.C. 380, 354 F.2d 512 (1965); State v. Jones, 7 Nev. 408 (1872); and State v. Cushing, 61 Nev. 132, 120 P.2d 208 (1941).

In Jones, which was a trial, as were the other cited cases, and not a preliminary hearing, the court said, 7 Nev. at 418:

'The third instruction was properly rejected because, under the statute of this state, it is not essential to the conviction of accessories before the fact that the prosecution first prove the guilt of the principal. It was only necessary to show that a larceny had been committed, and that the defendants, if they were present, aided and assisted, or if not present, they they advised or encouraged it.'

And again, in Cushing, our court held, 61 Nev. at 146, 120 P.2d at 215:

'The holding of our Supreme Court to that effect is recognized in 22 C.J.S. Criminal Law § 105, p. 179, wherein it is said in note 59 to the text: 'In Nevada, under such a statute as is contemplated by the text (statutes which abolish the distinction between...