State v. Fuchs, 4426

• Decision Date: 22 February 1962
• Docket Number: No. 4426,4426
• Citation: 368 P.2d 869,78 Nev. 63
• Parties: The STATE of Nevada, Appellant, v. Mary Allison FUCHS, Respondent.
• Court: Nevada Supreme Court

Page 869

368 P.2d 869

78 Nev. 63

The STATE of Nevada, Appellant, v. Mary Allison FUCHS, Respondent.

No. 4426.

Supreme Court of Nevada.

Feb. 22, 1962.

Rehearing Denied March 21, 1962.

Roger D. Foley, Atty. Gen., John F. Mendoza, Dist. Atty., Charles L. Garner, Deputy Dist. Atty., Las Vegas, for appellant.

Tad Porter, Las Vegas, for respondent.

THOMPSON, Justice.

After a preliminary hearing, Mary Allison Fuchs was held to answer in the district court upon the charge of murder. She thereafter petitioned that court for a writ of habeas corpus, which was granted. The State has appealed from the order granting such writ. N.R.S. 34.380. The sole question posed for our determination is whether there was sufficient legal evidence presented at the preliminary hearing to make it appear that a public offense had been committed, and sufficient cause to believe the accused guilty thereof. N.R.S. 171.455; Ervin v. Leypoldt, 76 Nev. 297, 352 P.2d 718; Raggio v. Bryan, 76 Nev. 1, 348 P.2d 156; Ex parte Liotard, 47 Nev. 169, 217 P. 960, 30 A.L.R. 63; In re Kelly, 28 Nev. 491, 83 P. 223.

A review of the transcript of the preliminary hearing discloses, among other matters, that the accused, her three year old son and her husband, the decedent, were the only persons in the home at the time of the homicide; that there was a loaded .45 caliber revolver with a spent cartridge under the hammer near the body of the deceased; that the cause of death was a massive intra-abdominal hemorrhage from perforation of the liver by a .45 caliber bullet; that the accused told police officers that she had shot her husband because he had beaten their son and had said he would kill him. Without more, the foregoing would make it appear that a public offense had been committed and that there was sufficient cause to believe the accused guilty thereof. However, additional evidence, consisting of a written statement by the accused, was introduced by the State. The accused, respondent here, earnestly contends that such statement constituted proof by the prosecution establishing a justifiable or excusable homicide, N.R.S. 200.170, in the defense of another, N.R.S. 200.160; and, that having offered such proof, the State was bound by it. The statement reads:

'I, Mary Allison Fuchs, 35 years of age, residing at 5904 Gipsy Avenue, Las Vegas, Nevada, make the following statement of my own free will and accord to Officers H. Barrett and R. Burgess of the Las Vegas Police Department. No threats, duress, coercion or promises have been made to me in order for me to make this statement. I have been advised as to my right to consult an attorney before making this statement and I realize it can be used in a Court of Law against me. I got home from work at about 4:30 p. m., February 9, 1961. We had another man living in the house with us until today when he moved out. He had all of his things packed in his car when I got home. His name is John Beczek and he is working in San Jose, California. He was ready to leave and asked if Art would be home shortly so I called the nursery to see if Art had been there to pick up our son. Mrs. Leonard answered and said he had been there a few minutes before and had picked up Greg and would home [sic] shortly. He got home about ten minutes to five. He and John talked in the living room and I went to the bedrooms to straighten up the beds. I was in the kitchen when John left. Art was out front with him and after he left Art came back into the house. He had bought Greg a sail plane and they played with it on the patio until about 6:00 p. m. John had left an old car there for Art to sell for the money he owed him. Art called two friends and asked if they knew anyone who wanted a work car. I talked to one of these person's wife, Mrs. Nabat, about a possible job I knew of that she might be interested in when he was on the phone. He also talked to Charlie Ottenheimer who asked us to come over so about 7:30 p. m., we took Greg and went over to the Fireside Inn. We visited until about 8:30 or 9:00 p. m. and had two drinks while we were there. I had had a drink earlier at home. After getting home I went in and put my mau mau [sic] on and Greg was playing with the airplane. Art had been building a model airplane in the living room so I told him, 'Now that John is out you have a room to have all your things in'. He went into the den and was looking around and then he came out with a picture which was taken about eight years ago and one manila envelope, a spiral notebook which I had started to keep a family budget in about five years ago and a white envelope. He said something like you sure as hell never did anything with this. Then I told him, 'Well, I started to'. Then he layed [sic] them down on the sink board. I told him, 'Well, Art, pick them up and take them back to the den. We'll look at them later or tomorrow'. He took offense to this and stated, 'I'm no colored slave you can order around. I'm no _____ gigolo. Just because you bring home the money doesn't mean you can order me around.' While he was saying this he broke the picture by throwing it onto the floor. I was draining the spaghetti and I told Greg to take his pajamas into our room and I would get him ready for bed, which he did. Art got very belligerent about the whole thing and started talking about things which happened ten years ago accusing me of slighting him by not consulting him on things. I said, 'That's why when we bought this house, before I bought anything, any drapes or furniture, I consulted you'. He stood up and held up his fist and...