State v. Butner

• Decision Date: 10 May 1949
• Docket Number: 3545.
• Citation: 206 P.2d 253,66 Nev. 127
• Parties: STATE v. BUTNER.
• Court: Nevada Supreme Court

206 P.2d 253

66 Nev. 127

STATE v. BUTNER.

No. 3545.

Supreme Court of Nevada

May 10, 1949

Appeal from District Court, Second Judicial District, Washoe County A. J. Maestretti, Judge.

Owen Caudle Butner was convicted of murder of the first degree and he appeals.

Affirmed.

John R. Ross, of Carson City, and Griswold & Vargas, of Reno, for appellant.

Alan Bible, Atty. Gen., Geo. P. Annand and Homer Mooney, Deputy Attys. Gen and Harold O. Taber, Dist. Atty., John C. Bartlett and Gordon R. Thompson, Deputy Dist. Attys., all of Reno, for respondent.

McNAMEE District Judge.

Appellant Owen Caudle Butner, was convicted in the District Court of Washoe County of the crime of murder of the first degree. The jury by its verdict fixed the penalty at death. Appeal is taken from the judgment and order denying appellant's motion for a new trial.

Conviction herein resulted from appellant's killing of Mildred Butner, his estranged wife, at Reno, Nevada, by shooting her three times with a pistol, on December 30, 1947.

Appellant had married decedent in 1933. They lived together thereafter first in Nevada and then in California. A son was born of this union. They returned to Nevada in 1941, when appellant accepted a position with the Reno Police Department as patrolman, which he held until August 15, 1947. While appellant was in Reno, decedent obtained her first divorce from him, but they remarried each other shortly thereafter. In September, 1947, decedent obtained her second divorce from appellant, and on the same day appellant obtained employment as a deputy sheriff of Douglas County, Nevada. He returned to Reno in October, 1947, and did not obtain regular employment again until December 17, 1947, when he went to work for the Mapes Hotel, as floor man. On December 29, 1947, the day before the fatal shooting, after receiving his pay check for his work at the Mapes, he went to decedent's home on Locust Street, where he was met at the door by Gertie Lou Eaton, a friend of decedent. While he and Mrs. Eaton were talking outside the door, decedent came to the door, and appellant put his hand inside his coat. Mrs. Eaton warned decedent to close the door, and then asked appellant for the gun. He refused her, saying that he was going to the edge of town and blow his brains out. Prior to this, and on September 8, 1947, appellant had stated to decedent's sister that he guessed he would have to kill decedent and then kill himself.

On the fatal day, December 30, 1947, just before 6:00 P. M., appellant had a taxi, driven by Bob Wiseman, take him past decedent's home. Since no one appeared to be there, he was driven to the home of Mrs. Knight, decedent's mother, and inquired of her where decedent was. Upon leaving, he put his arm around Mrs. Knight and said, three times, 'Mother, I hate to do this to you because I love you so much.' He then had the taxi take him back to the Locust Street home, where he went into the house and turned on the lights. Just then decedent arrived in another taxi, driven by Jack Watkins. Seeing that the lights in the house were on, she stated she was afraid to go in, but nevertheless she did go in, when Watkins was willing to accompany her. Appellant came from another room into the kitchen, just as they arrived therein, and were setting down their parcels. He endeavored to get decedent to talk to him in private, but the refused and told Watkins not to leave, that she was going back to town with him. Watkins walked out the back door to his cab, followed by decedent and appellant, who was still endeavoring to talk to decedent in private. As decedent was about to return to the house to lock the door, appellant shot her three times, and she fell. Appellant pointed the gun at Watkins, and said 'Roll her over and see if she is dead.' Watkins replied that she was, and added, 'Don't shoot me. This is a family affair. Put that thing in your pocket and beat it.' Appellant put the gun in his pocket, and went back into the house. Appellant then went to Haddock's bar, where he had several drinks and was apprehended by police. He directed the arresting officers to the place where the gun was, and, on the way, inquired about decedent. When told she was dead, he stated, 'God, that's too bad, but I had to do it. She was an awfully nice woman. I suppose I will have to take the gas, but I had to do it.' At the police station, he was booked and gave the required information without difficulty, and requested that George Vargas be called as his attorney.

It is conceded by appellant that the State successfully proved by competent witnesses that Mildred Butner came to her death as a result of bullet wounds inflicted by appellant. The defense is based on the legal insanity of appellant at the time, and for some time both before and after, the crime was committed. Appellant contends that the evidence is insufficient to justify a conclusion that the appellant was sane at the time of the commission of the crime. He claims that a review of the record will show that he has proven, by a preponderance of evidence, that he was insane when the shots were fired.

That there was a conflict in the evidence on the issue of insanity cannot be denied. Numerous witnesses, expert and nonexpert, were produced both by appellant and by the state, to prove and disprove the insanity of appellant. The jury by its verdict found that the defendant was sane at the time of the homicide. It is not now the duty of this court to weigh such evidence. State v. Watts, 52 Nev. 453, 290 P. 732; State v. Soares, 53 Nev. 235, 296 P. 1081; State v. McNeil, 53 Nev. 428, 4 P.2d 889; State v. Fisco, 58 Nev. 65, 70 P.2d 1113. The jurisdiction of this court in a criminal case in which the offense charged amounts to a felony is limited to questions of law alone. Constitution of Nevada, Art. VI, Sec. 4; State v. Millain, 3 Nev. 409, 467; State v. Mills, 12 Nev. 403; State v. Boyle, 49 Nev. 386, 248 P. 48. Appellant concedes this to be the law, but contends that the conflict on this issue comes within that exceptions to the general rule set forth in Consolazio v. Summerfield, 54 Nev. 176, 10 P.2d 629, 630, when this court said:

'The general rule * * * is that when the evidence is conflicting and there is substantial evidence to sustain the judgment it will not be disturbed. But there is an exception to the general rule to the effect that where, upon all the evidence, it is clear that a wrong conclusion has been reached, the judgment will be reversed.'

It will be noted that the foregoing exception to the general rule was enunciated in a civil case. This Court has very carefully guarded and restricted its possible application in criminal cases. State v. Boyle, 49 Nev. 386, 403, 248 P. 48; State v. Van Winkle, 6 Nev. 340; State v. Buralli, 27 Nev. 41, 71 P. 532. The evidence adduced on the part of the state, through the testimony of expert and lay witnesses, as to the sanity of the defendant, leaves no room for the application of this exception to the general rule in the instant case.

Appellant strongly urges that the trial court in allowing Jack Watkins to testify as to the sanity of appellant committed reversible error, because, if it be conceded that the evidence was substantial as to both sanity and insanity, the consideration by the jury of incompetent testimony on this matter might very well have tipped the scales against appellant's contention.

The record discloses that Jack Watkins had seen appellant only on the day of the homicide, and at that time for a period of from three to eight minutes, being the time when he and decedent encountered appellant in the kitchen of her home, while the three of them walked to his taxi in the front of the home, and until after the shooting there took place. This witness was permitted, over appellant's objection, to state that in his opinion appellant was sane at the time of the shooting. On cross-examination, he testified further on this subject, as follows: 'I noted at the time of the occurrence that when he pointed the gun at me and told me to roll her over and see if she was dead, that he wasn't drunk, or he wasn't crazy. I mean, he was deliberate and cold.

'Q. Did you form your opinion at that moment? A. Wouldn't you? I thought it was going to be my last one.'

There is no question in this state but that opinion evidence of a layman or nonexpert as to the sanity or insanity of an accused before or after the time of the alleged crime may properly be received in evidence, provided the witness possesses adequate knowledge, based on an opportunity to observe the conduct of the one whose mental condition is in issue. State v. Lewis, 20 Nev. 333, 22 P. 241.

That such an opportunity (to observe the accused) is necessary, no one has doubted. The doubt comes only as to the exact phrasing of the test to be applied. A precise definition, which shall be at once both flexible enough to meet various situations and exact enough to be a rule at all, is difficult, if not impossible. It has at any rate not been devised to the satisfaction of all the courts. The truth is that the test should be left in the hands of the trial judge. Neither its exact phrasing, nor its application in a given...