State v. Fitch

• Decision Date: 20 December 1948
• Docket Number: 3504.
• Citation: 200 P.2d 991,65 Nev. 668
• Parties: STATE v. FITCH.
• Court: Nevada Supreme Court

200 P.2d 991

65 Nev. 668

STATE v. FITCH.

No. 3504.

Supreme Court of Nevada

December 20, 1948

Appeal from Eighth Judicial District Court, Clark County; A. S Henderson, Judge.

Richard Cooper Fitch was convicted for first-degree murder. From the verdict of the jury, the judgment and order pronounced in conformity therewith and order denying motion of defendant for new trial and order denying motion of defendant for arrest of judgment, the defendant appeals.

Judgment verdict and orders affirmed.

E. P. Carville and F. Morgan Anglim, both of Reno for appellant.

Alan Bible, Atty. Gen., Geo. P. Annand and Homer Mooney, Deputy Attys. Gen., and Robert E. Jones, Dist. Atty., of Las Vegas for respondent.

WINES District Judge.

After the trial of the above-entitled action in the Eighth Judicial District Court, in and for the State of Nevada, County of Clark, the jury returned a verdict and found the defendant guilty of murder in the first degree, and fixed the penalty at life imprisonment. Thereafter within the time, limited by law, a motion for a new trial was made and denied, and the defendant has appealed to this Court from the verdict of the jury, the judgment and order of the District Court pronounced in conformity therewith and order of the District Court denying the motion of the defendant for a new trial, also the order denying the motion of the defendant for arrest of judgment. The record does not show that a motion for arrest of judgment was made by appellant.

The defendant has set out six assignments of error, and as each will be dealt with separately, it will not be necessary to list them at this point.

As the first assignment is that the verdict of the jury is against the weight of evidence, disposition of this point necessitates setting out the facts in some detail.

A summary, in narrative form, of the State's case in chief, the defense and the rebuttal, offers a convenient form for stating the contention intelligibly, and we proceed to this, noting here that whenever possible we shall avoid repetition of facts not disputed.

On November 18, 1946, taking the two children who were then residing at home, Simone Fitch left Sherman Oaks, California, where she had been living with her husband, the appellant in this case. She was accompanied by John Weer and driven by him in his car, a black Ford V-8 Sedan. She left a note for the appellant which read as follows: 'Dick, I have left you. I could not any longer stand your brutality as well. No one knew where I will go or for how long. I have sold few things to keep me going for awhile anyway. Best Luck. Simone.'

Simone Fitch and John Weer drove first to Mojave, California, and from there they went to Las Vegas, Nevada, where they stayed over night, registering at a hotel as man and wife. The next day they removed to Carver Park, Nevada, near Las Vegas, rented an apartment on West Lincoln Street, being Apartment 6-C in a Federal Housing Project. The children were entered in school under the name of Weer and John Weer and Simone Fitch continued to live there as man and wife until November 30, 1946.

On the evening of November 18, 1946, the appellant returned home from his employment at a moving picture studio and discovered the note left by Simone Fitch. Very shortly after the departure of Simone Fitch the appellant learned that she had not left alone but in the company of 'Jack' Weer, although he did not discover where Simone Fitch and Jack Weer had gone until about November 29, 1946. In the interval he made numerous inquiries concerning Jack Weer and as to his whereabouts and after learning where John Weer had been living in California, broke into his cabin and there obtained sufficient information to enable him to discover the whereabouts of Simone Fitch and Jack Weer. In addition to making inquiry concerning Jack Weer, the appellant in numerous conversations had with Leonard Reed, Mr. Jean Meunier and Mrs. Jean Meunier, discussed Jack Weer and threatened on many occasions to kill him. This threat was often made in the most vile terms. After the appellant acquired a knowledge of whom Simone Fitch had left with appellant stated that he would hunt him down as a fugitive and kill him. To each of the persons above named appellant made the statement that he could kill Jack Weer and escape punishment under the 'Unwritten Law', and was admonished by each of these persons not to attempt this. Leonard Reed gave as his reason the fact that Simone Fitch had been as aggressive in establishing the relationship with Weer as Weer himself. He was told by Mr. Jean Meunier that he did not think the 'Unwritten Law' applied, and by Mrs. Jean Meunier that it would lead to disgrace for himself and his family, that the law would not apply; further that the appellant himself had been guilty of intruding on the marriage of Simone Fitch and her previous husband J. K. Freeman, and that perhaps Simone Fitch was justified in leaving him because of his acts of cruelty to her and the children. Mrs. Jean Meunier, on the witness stand, related a number of instances when she had seen acts of cruelty by appellant toward his wife and children.

As above stated the appellant discovered on or about November 29, 1946, the whereabouts of Simone Fitch and John Weer and on that night asked for and received, two letters which he had left with Mrs. Jean Meunier to be forwarded to his wife, and on that night stated that they (Mr. and Mrs. Meunier) would see his name and Simone Fitch's name in the headlines.

On November 30, 1946, appellant left Sherman Oaks, California, by automobile and drove to Las Vegas, Nevada, and among the various items carried in the car was a .45 calibre Colt revolver. On the way into Las Vegas appellant picked up two hitchhikers and somewhere on the road the gun was fired from the moving automobile for the purpose of discovering if it would work. After they had reached Las Vegas the two hitch-hikers left appellant and he then picked up another hitchhiker who directed him to Carver Park, which is near Las Vegas.

After reaching Carver Park appellant drove out to the desert and changed his clothes. He then returned and began searching for the apartment in which John Weer and Simone Fitch were living. At about the hour of 6:00 or 6:30 o'clock P.M., the appellant reached the apartment in which they were living. He broke the glass in the front door with the gun, stepped into the room with the gun in one hand, and a raincoat over his arm. Thereafter a struggle occurred and during the struggle three shots were discharged from the gun which appellant carried. The gun which the appellant was carrying would only fire three times without re-loading. The appellant, his wife and John Weer were the only persons present in the room at the time of the shooting, and each of these persons suffered wounds in the struggle.

An autopsy of the deceased (John Weer) showed a bullet wound about 4"' below his left nipple on the left side of the chest, and the bullet had ranged downward making its exit at above the right ilium. The wound on the left side of the chest bore evidence of powder burn. There was a second bullet wound approximately 1/2"' below the lobe of the right ear, and the bullet traveled in an upward direction making its exit at about 2"' in front of the lobe of the left ear. Distinct marks of powder burn appeared at the entrance of the wound on the right side of the head. This bullet severed a judgular vein causing severe hemorrhage which resulted in death within a few minutes. The left jaw had been fractured by this bullet and the third molar was missing from the left jaw.

Examination of Simone Fitch showed that a bullet had entered over the right tibia, approximately 5"' below the knee, passed through the tibia ranging downward and exiting about 4"' below. An X-ray examination showed a multiple fracture of the right tibia. On the left forearm of Simone Fitch there was a laceration approximately 3/4"' in length. This wound had the appearance of a tear, and directly underneath there was a small puncture wound from which a tooth was later extracted. When this tooth was extracted it was found to be a third molar. There was no evidence of powder burn around either of these wounds.

When appellant was examined it was determined that he had a laceration on the inside of the upper right leg 9"' above the knee and on the right kneecap. Both of these wounds gave the appearance of powder or bullet burns. There was a puncture wound between the second and third metatarsal of the right foot and thereafter a bullet was removed from this wound.

The room in which this affray occurred was disarranged. A small table radio was found on the floor, some broken dishes and food were also found on the floor and a chair was broken. There was a large pool of blood toward the center of the room and a heater having an enamel finish was chipped. One bullet was found in the corner of the room on the floor, one was found in appellant's foot and the other had punctured the wall and was found in the closet of the next apartment, which immediately adjoined Apartment 6-C.

At about this time of the evening Mr. Russell, who lived in the next apartment in which the bullet was found, heard the muffled sound of shots, and shortly afterwards heard a woman screaming and heard a man's voice say 'For _____ Sake, shut up I am going to kill you'. At about the same time the deceased, John Weer, came to their front door and fell on the doorstep where he died. Mr. Russell immediately ran for help and as he stepped over Weer's body he glanced in the direction of Apartment 6-C and saw a man in a dark suit wrestling with a woman who was 'hollering'--'Let me go, let me go'.

When the Officers arrived Weer was dead, Simone...