State v. Fisko

• Decision Date: 30 July 1937
• Docket Number: 3179.
• Citation: 70 P.2d 1113,58 Nev. 65
• Parties: STATE v. FISKO.
• Court: Nevada Supreme Court

70 P.2d 1113

58 Nev. 65

STATE v. FISKO.

No. 3179.

Supreme Court of Nevada

July 30, 1937

Rehearing Denied Sept. 3, 1937.

Appeal from Second Judicial District Court, Washoe County; B. F Curler, Judge.

Ivar Fisko was convicted of the crime of murder of the first degree, and he appeals.

Affirmed.

John Alfred Beyer, Gordon W. Rice, and Harlan L. Heward, all of Reno, for appellant.

Gray Mashburn, Atty. Gen., W. T. Mathews and W. Howard Gray Deputy Attys. Gen., and Ernest S. Brown, Dist. Atty., and Nash P. Morgan, Deputy Dist. Atty., both of Reno, for respondent.

DUCKER Justice.

Appellant was convicted of the crime of murder of the first degree for killing his wife. The jury fixed his punishment at death and he was sentenced accordingly. He assigns as error the refusal of the court to give an instruction on manslaughter and form of verdict for such offense.

The first contention under this assignment is that it is the duty of the court in every case of murder to submit to the jury under proper instructions, the issue of manslaughter, even though there is no evidence to prove the latter offense. It is argued that the intention of the Legislature as to that duty is made manifest by sections 11017, N.C.L., 11001, N.C.L., and 9974, N.C.L. This court has repeatedly decided to the contrary. State v. Millain, 3 Nev. 409. State v. Donovan, 10 Nev. 36, and State v. Johnny, 29 Nev. 203, 87 P. 3, 9. In each of these cases the accused was convicted of murder of the first degree and it was held that there was no error in refusing to instruct on manslaughter. When these cases were decided, the sections referred to were in force. It would seem, therefore, that the question is settled. But the cases of State v. Lindsey, 19 Nev. 47, 5 P. 822, 3 Am.St.Rep. 776, and State v. Oschoa, 49 Nev. 194, 242 P. 582, are adverted to, and it is claimed that they declare a rule in flat conflict with that laid down in the former cases. We perceive no conflict. In State v. Lindsey, supra, the accused was charged with murder by the administering of poison, and the jury found her guilty of murder in the second degree. It was held that they were empowered to do this for the reason that the statute leaves the question of degree to be settled by the jury. The court said, if the jury fix the crime at murder in the second degree, in a case where the law and facts make it murder in the first degree, it is error in favor of the prisoner, of which the law will not take cognizance, and of which the prisoner ought not to complain.

In State v. Oschoa, supra, in which the accused was charged with murder, he was convicted of involuntary manslaughter. It is contended that there was no evidence of any crime except murder. The court held that if this were the fact, the accused could not complain, for the reason that the statute leaves it to the jury to find any grade of homicide within the crime charged. It was pointed out, however, that the circumstances did not exclude manslaughter.

Such is the difference between these classes of cases. Where is the conflict between a rule that, in a case of homicide when the evidence tends only to prove a higher degree of crime, the court may properly refuse all instructions as to manslaughter, and one that in such a case the accused may not complain of a verdict of manslaughter? There is none.

The rule announced in State v. Millain, supra, and adhered to in State v. Donovan and State v. Johnny, is in acord with the great weight of authority. See 21 A.L.R. 607 et seq.; 27 A.L.R. p. 1098 et seq., and 102 A.L.R. p. 1021 et seq. There is nothing in the reasoning of appellant's counsel to persuade a departure from that rule.

The next contention under the assignment is that the record discloses evidence tending to prove manslaughter and which made it imperative for the court to instruct as to that offense. A summary of the evidence affording an intelligent view of the transaction is necessary.

Appellant killed his wife, Marie Fisko, by shooting her with a rifle on February 20, 1936, at about 5 p. m., at their home in Reno. He shot her twice, once in the head and once in the back, and then shot himself with the same weapon, inflicting a wound in the head which did not prove fatal. They were married in July, 1932, and had one child, a daughter, three years of age. Deceased had two children by a former marriage, Mrs. Lois Rice, and a younger daughter fourteen years of age named Marie Swanson. Appellant and his wife lived for most of their married life at the Gallery Hotel in Reno. They moved from there to a house on Bell street in January, 1936. They had separated about two weeks before the homicide occurred and a divorce was contemplated. During this time appellant, except on the night of the 17th of February, did not sleep at the house, but usually came in for dinner. On the 20th of February Mrs. Fisko was preparing to move to the Humboldt Apartments in Reno, and her daughter Lois, and the latter's mother-in-law, Mrs. Emma Rice, were engaged in cleaning the house preparatory to the change of abode. While they were so engaged, it was discovered that appellant was upstairs in bed. When Mrs. Fisko came home a short time afterwards, she was informed of appellant's presence. Emma Rice testified that Mrs. Fisko then went upstairs and soon they came down into the living room, appellant preceding her. He was swearing a little. Mrs. Fisko spoke about the garbage on the back porch and told him to get his clothes out as she wanted to turn the key in. Appellant said all he had ever done for her was to pack rubbish and garbage, and went out. In about fifteen or twenty minutes he returned. He came to the front door, which was locked to keep the baby in. The witness opened the door and let him in. He locked the door. His wife was on the back porch, close to the back door of the porch, and he asked her just how far she expected him to get on $10. She replied: "Calm yourself, Fisko, and we will talk this matter over later." She then passed through between him and the witness and went into the living room. "He reached for the gun, you see, into the cellar way there. *** I didn't see him get the gun, but I saw him have the gun." He followed her into the living room holding the gun in both hands. She grabbed him from the back around the neck--around his throat, and held him for a few seconds, crying to the witness to take the baby and call the police. She broke her hold, rushing back, calling again to the witness to take the baby and summon the police. When she was almost to the back door, appellant was behind her. The witness heard him say that "she was no good and didn't amount to anything, and he said he guessed she wanted another man, and he fired." The witness explained that instead of using the word man he employed an obscene expression meaning illicit sexual intercourse. When he fired, Mrs. Fisko's hand was up on the back door of the porch and she was facing the back door. The witness took the child and went out the front door. Before she got the front door unlocked, the second shot was fired. Mrs. Fisko was "facing the back door of the porch at the time." After she had notified some neighbors and was on her way back, the witness heard the third shot. On cross-examination the witness testified that appellant made no threats and did not indicate that he was going to murder or hurt his wife, but, "just said she was crooked and no good."

Emma Rice was the only witness to the shooting. Her daughter-in-law, Lois Rice, who left the house shortly after the appellant returned, testified in substance that when she returned to the house from taking some things away she saw appellant in the living room and he was mumbling and "cussing" a little. He then went outside and coming back in asked her mother (Mrs. Fisko): "Where is my gun?" Her mother said: "It is out where it always is," and gestured towards the closet-way to the cellar. He went out there and looked and then went off in the car. He was not drunk.

Marie Swanson testified that on the night of the 17th of February, 1936, she came home at about 11 o'clock at night and her mother told her that appellant was in the front bedroom. About the middle of the night he started in swearing and making a lot of noise. Mrs. Fisko said she would go in and calm him. She went in and the witness went to sleep. In the middle of the night she woke up and heard him swearing. He was in a very angry mood. "He said that nobody would take his baby away from him, he would kill them first." The witness further testified that on the afternoon of February 20th when she came home from school she saw appellant in the living room. He was swearing. She further testified that three or four days after her mother and appellant separated she heard her tell him at the home on Bell street, "that he had had his last chance and that she was going to live at a place she hadn't had, the Humboldt Apartments; then said she was going to live over there and that she would give him the divorce." Joseph L. Kirkley, a police officer, who was called to the scene of the shooting, testified that he found appellant laying on the floor of the living room with a rifle beside him, and the body of Mrs. Fisko on the back porch near the back door. There was a bottle of whisky partly filled on the floor of the living room.

Mrs. Bertha Wilkinson, superintendent of nurses at the Washoe General Hospital, testified that appellant was brought there on February 20, 1936, suffering from a gunshot wound on the side of the face. She assisted in removing his clothes and personal effects. Among these personal effects was a check for $10 drawn in his favor on the First and Virginia Branch, First National Bank, Reno, Nev., by Marie Fisko.

Appellant testified that h...