State v. Dye

• Decision Date: 14 July 1913
• Docket Number: 2,016.
• Parties: STATE v. DYE.
• Court: Nevada Supreme Court

133 P. 935

36 Nev. 143

STATE v. DYE.

No. 2,016.

Supreme Court of Nevada

July 14, 1913

Appeal from District Court, Elko County; Mark R. Averill, Judge.

William Dye was convicted of arson, and he appeals. Reversed and remanded.

Patrick A. McCarren, of Carson City, Perky & Crow, of Boise, Idaho and King & King, of Salt Lake City, Utah, for appellant.

Cleveland H. Baker, Atty. Gen., James Dysart, Dist. Atty., F. S Gedney, both of Elko, and Lewers & Henderson, of Reno, for the State.

NORCROSS J.

Appellant was jointly indicted with Antone Primeaux and Roy Primeaux in the Fourth judicial district court, in and for Elko county for the crime of arson. A severance of trials was obtained and the appellant was tried prior to his codefendants, and convicted of arson in the second degree. From a judgment entered upon the verdict and from an order denying his motion for a new trial, defendant has appealed.

The trial of appellant lasted nearly 40 days, and the record on appeal is embodied in four volumes aggregating about 5,000 typewritten pages. Since the trial and appeal of the case against defendant Dye, the trial of his codefendants has been had, and the latter acquitted. The indictment charged: "That the said defendants, Antone Primeaux, Roy Primeaux, and William Dye, on or about the 10th day of June, A. D. 1910, in the town of Tuscarora, county of Elko, state of Nevada, and before the finding of this indictment, without authority of law, did, feloniously, unlawfully, willfully, and maliciously burn and cause to be burned, a certain building, then and there situated in the town of Tuscarora, county of Elko, state of Nevada, and then and there the property of A. W. Sewell and J. W. Linnell, copartners doing business under the firm name and style of A. W. Sewell & Co., which said building was then and there of the value of $2,000, and was known as and called the A. W. Sewell & Co. store, which said building was then and there occupied as a store by said corporation, and contained a stock of goods, wares, and merchandise of the value of $15,000, then and there the property of said A. W. Sewell and J. W. Linnell." It was the theory of the state upon the trial of appellant that Dye and his codefendants had entered into a conspiracy to burn the store building of A. W. Sewell & Co.; the motive being that A. W. Sewell & Co. was a rival business competitor of the defendant Antone Primeaux. The record contains many assignments of error, but we think it only necessary to consider one.

It is contended by appellant that the court erred in admitting in evidence a confession made by defendant Dye implicating his codefendants. It is contended that this confession was inadmissible for the reason that it appeared, under the undisputed testimony, to have been given under promise and inducements of reward made by the sheriff, who had the defendant in charge, and by the prosecuting witness, A. W Sewell, and by agents of the latter. We think the objection to the admissibility of this confession should have been sustained, and that its admission was prejudicial error. It clearly appears from the testimony that the complaining witness, A. W. Sewell, considered the appellant but a tool of the defendants Primeaux, whom he regarded as the originators of the conspiracy, and they were the parties whose conviction he most desired. It is clear that this view of the situation was both directly and indirectly impressed upon the mind of the appellant. Prior to the confession a conversation was had between the sheriff and the defendant in the county jail, in which the sheriff said to appellant: "Bill, you watch out for Bill Dye." The sheriff also testified to the effect that he probably told appellant: "If you tell the truth, it will be a whole lot better for you." In a conversation between the appellant and the prosecuting witness, had in the county jail prior to the confession, the latter said to appellant: "Bill, you ain't to blame. It is others I blame. It is better for you to take care of yourself." The witness also testified that he probably told appellant that it would be better for him to tell what he knew of the case. At the time of the conversation with the complaining witness at which the confession was obtained, the complaining witness admits that he said: "Bill, I want the principals in this proposition. It wouldn't do me much good to send you to prison, for they could hire some one to do the job again. Bill, I want the head man in this." Besides these conversations had with the defendant by the sheriff and the complaining witness, it appears that a number of other pa...