State v. Boudreau, 3571

• Decision Date: 25 January 1950
• Docket Number: No. 3571,3571
• Citation: 214 P.2d 135,67 Nev. 36
• Parties: STATE v. BOUDREAU.
• Court: Nevada Supreme Court

Page 135

214 P.2d 135

67 Nev. 36

STATE v. BOUDREAU.

No. 3571.

Supreme Court of Nevada.

Jan. 25, 1950.

Orville R. Wilson and F. Grant Sawyer, both of Elko, for appellant.

Alan Bigle, Atty. Gen., George P. Annand and Robert McDonald, Deputy Attys. Gen., and A. L. Puccinelli, District Attorney of Elko County, Elko, for respondent.

HATTON, District Judge.

Richard Lindley Boudreau, alias Dick Bays, the defendant in the trial court, is the appellant here. He will be referred to herein as the defendant. The defendant was charged with the murder of Richard Stewart by an information filed by the District Attorney of Elko County, Nevada, on October 28, 1948, to which he entered his plea of not guilty. Upon the trial he was found guilty of murder of the first degree and the death penalty was imposed by the jury. He brings this appeal from the judgment and from the trial court's order denying his motion for a new trial.

In the defendant's opening brief, two assignments of error are stated, as follows:

'1. That the verdict was contrary to the evidence in that the same shows that defendant was not guilty of the degree of the crime of which he was convicted but was guilty of a lesser degree thereof.

'2. The purported written confession of defendant was not voluntary in that the same was taken from said defendant when his physical condition did not allow for his independent and voluntary action in giving the confession; also said confession was taken prior to the time defendant was conducted to a magistrate.'

The record discloses that Richard Lindley Boudreau, the defendant, a youth of eighteen years, was employed on a ranch in Elko County, Nevada, in the summer of 1948. On or about September 1, 1948, he transferred his employment from the ranch to the Southern Pacific Railroad Company, at Alazon, Nevada, which is situated approzimately five and one-half miles west of the town of Wells, in Elko County. He was known as Dick Bays until after the homicide. On the afternoon of October 9, 1948, the defendant, in company with Richard Stewart, the deceased, and two other employees of the railroad company, left Alazon in an Oldsmobile sedan, the property of Stewart, with the purpose of going to Twin Falls, Idaho, to attend a dance at that place. They stopped first at Contact, Nevada, about fifty miles north of Wells, where they were joined by Alvin Loos and Edna Robertson, and then proceeded on northward and, at San Jacinto, they were joined by Wilma Robertson. At Rogerson, Idaho, they were joined by Delilah Helsley. They arrived at Twin Falls at about nine to nine-thirty that night. At midnight, after attending the dance, the party, excepting the two unnamed employees of the railroad company, entered Stewart's automobile and returned to Contact, arriving there at about two in the morning of October 10th, when Alvin Loos and the three girls left the car and remained at Contact, while the defendant and Stewart, in the latter's car, proceeded on the highway towards Wells. At about four o'clock that morning, the defendant entered the office of the telegraph operator at Alazon and stated that he was out of gasoline. The operator was unable to supply him, and it seems that he obtained some gasoline from the railroad company's supply. That afternoon, between four and four-thirty, the defendant entered the Thousand Springs Trading Post, which is approximate midway between Wells and Contact, and purchased a bus ticket to Contact. He was recognized as Dick Bays by the man who sold him the bus ticket, defendant having visited the Trading Post during his ranching employment. He left on ths bus at about five to five-fifteen in the afternoon. At about six to six-thirty, the man who sold the bus ticket to defendant, in company with others, left the Trading Post to go deer hunting. They proceeded north on the highway until they came to a road known as the Loomis Pasture road. About three and one-half miles out on this road, the hunting party came upon the Oldsmobile sedan, belonging to the deceased. It had a flat tire. They noticed a bullet hole in the side window on the driver's side and, scattered about the car, were tools, articles of clothing, blood-stained seat covers, a blood-stained leather jacket and a billfold containing papers bearing the name Dick Bays. They returned to the Trading Post and summoned Constable Homer Murphy from Wells. That night, at about nine-thirty, Alvin Loos, above referred to, saw the defendant at the Mineral Hot Springs, near Contact, and he inquired of defendant as to the whereabouts of Stewart. Defendant answered that Stewart had gotten mad at defendant; that he, defendant, left Stewart's car at Wells, and that Stewart said he was going to Wyoming. About an hour later, Loos again talked with defendant, and the latter stated that he had quit his job at Alazon and was going back east. After Constable Murphy had been informed relative to the abandoned car, he summoned Undersheriff J. C. Harris from Elko, and they went together to the car, and the car was recognized by Murphy as the car belonging to Stewart. A further examination of the car disclosed a box of groceries and a 32 calibre automatic pistol, which was later identified as having been purchased by defendant in Twin Falls and also identified as the weapon which caused the wounds from which Stewart died. The officers proceeded to Mineral Hot Springs, where they approached the defendant and engaged him in conversation in the course of which the defendant stated that he had traveled from Wells to Contact by bus and that he did not know the whereabouts of Stewart. Defendant was searched and was found to be in possession of the car keys, a wallet containing a registration card, an identification card, driver's license and certificate of title of the car referred to, all made out to Richard Stewart, and a birth certificate made out to Richard Lindley Boudreau. Defendant was then taken into custody and was taken to Wells where he was placed in the jail there between one and one-thirty in the morning of October 11, 1948. Between one-thirty and two that morning, Officers Murphy and Harris, accompanied by William Stewart, a brother of the deceased, went to the jail and questioned the defendant. Both of the officers testified that, during the questioning, the defendant stated that he had shot Richor Stewart five times and that he would show the officers where Stewart was if they would take him there. The officers, accompanied by defendant and under his direction, then proceeded on the highway to point about three miles sough of Contact and there the body of Stewart was found about one hundred feet off the highway.

Constable Murphy testified that the defendant was returned to the jail at Wells at about four or five O'clock in the morning; that he, Murphy, called at the jail a number of times during the day, that defendant was lying on the bed, that he did not question defendant further about the homicide but just asked him if he wanted anything. The evidence tends to show that during the day the defendant was provided with proper food and that he was not disturbed. At about eight o'clock that evening, the defendant, in the presence of the District Attorney, Constable Murphy, Russell R. Plank, Inspector of Nevada State Police, and a young lay stenographer, made and signed the following confession:

'I, Richard Lindley Boudreau, also known as Dick Bays, hereby make the following statement, freely and voluntarily, without duress, undue influence, promise of reward and after being fully advised of my rights to an attorney and with full knowledge that whatever I say may be used against me.

'I was born on the 6th day of October, 1930 in Lynn, Massachusetts. I came to Wells, Nevada on or about September of 1948 where I have been working at Alazon for the Southern Pacific Railroad Company.

'On Saturday, October 9, 1948 at about 5 p. m. I left Alazon with Kimmy and Johnny who bunk next to me and Richard Stewart. We were driving in Stewart's car which is a 1936 Oldsmobile, tudor sedan. We were headed for Wells, Nevada, where we were going to let out Johnny and Jimmy and then Dick and myself were going to Contact, Nevada to pick up Alvin Loos and his girl friend, Edna Robertson and we were going to Twin Falls, Idaho to a dance. On the way to Wells Johnny and Jimmy asked Stewart if he was coming back Saturday night and he said 'Yes'. They then both decided to come along. When we got to Wells we all went into a cafe which is on the highway in Wells and had a sandwich. Johnny and Jimmy bought some whiskey. When we had finished eating we all took off for Contact. This was bout 6 p. m. Saturday night. Stewart was driving his car.

'We arrived in Contact about an hour or an hour and fifteen minutes after we left Wells. We went to Alvin's girl's house to pick up Al and his girl, Edna. Al said we were to drive to San Jacinto to pick up one girl and then to Rogerson, Idaho to pick up another girl. We left Contact, drove to San Jacinto and picked up Wilma, who is Edna's Sister. We then drove to Rogerson, Idaho and picked up a girl by the name of Delilia. I don't know her last name and then we all started off toward Twin Falls, Idaho. We got there about 9 o'clock, Saturday night. We let Johnny and Jimmy out in front of the St. Regis Club and made a deal to pick them up at midnight. We then drove to the Odd Fellows Hall where there was a dance. Stewart parked the car about a half a block from the hall. We got out of the car and started walking towards the hall, right next door to the Odd Fellows Hall is the American Legion Hall. All of the party, excepting me, stopped to look at a new Tucker automobile. I went on along to the dance and told them I would meet them later. After awhile the rest of them met me at the dance where we stayed until about 10 minutes to midnight. The dance usually let out at midnight. Al and Stewart left and went looking for Jimmy and Johnny....