State v. Gambetta

• Decision Date: 16 August 1949
• Docket Number: 3549.
• Citation: 208 P.2d 1059,66 Nev. 317
• Parties: STATE v. GAMBETTA.
• Court: Nevada Supreme Court

208 P.2d 1059

66 Nev. 317

STATE v. GAMBETTA.

No. 3549.

Supreme Court of Nevada

August 16, 1949

Rehearing Denied Sept. 26, 1949.

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

Eugene Leo Gambetta was convicted of murder in the first degree and he appeals from judgment and from order denying motion for a new trial.

Judgment and order affirmed, with direction.

C. Benson Tapscott, of Reno, for appellant.

Alan Bible, Attorney General, Homer Mooney and Robert L. McDonald Deputy Attorneys General, Harold O. Taber, District Attorney and Grant L. Bowen, Assistant District Attorney, Reno, for respondent.

BADT, Justice.

Appellant Eugene Leo Gambetta was convicted in the district court of Washoe county for the crime of murder in the first degree and the jury imposed the death penalty. Gambetta has appealed from the judgment and from the order denying his motion for a new trial. Before considering his seven assignments of error a recital of the facts is necessary. These facts appear from three separate confessions made by the defendant to three separate officers in San Francisco immediately following his apprehension and also from certain additional, independent and corroborative evidence adduced at the trial.

Appellant and deceased, Thelma Ribail, were married in January, 1945 and lived in an apartment in San Francisco. Following marital difficulties Thelma left appellant in March, 1948, and established her residence at the Gibson Apartments in Reno with her sister Lola LaPoint. Defendant made several trips from San Francisco to Reno in efforts to contact his wife and did contact her on four or more occasions, forcing her at the point of a gun to accompany him in a car. On May 29, 1948, approximately a month and a half before the fatal shooting, deceased, learning of the presence of defendant in Reno, attempted to leave her apartment in a taxicab driven by one Eugene Pettipiece who had been sent by Thelma's sister Lola for the purpose. However, as Thelma was leaving the front entrance of the Gibson Apartments in Pettipiece's taxi, appellant appeared, brandished a chrome plated, shiny revolver, ordered Pettipiece to drove off in his cab, and stated, 'I'll blow her guts all over the sidewalk.' Pettipiece reported the incident to Lola, who in turn reported it to the police. An hour later defendant was arrested, and the loaded revolver was found in his car. Defendant was fined $50 for violation of a city ordinance in connection with his possession of the gun and he paid his fine and returned to San Francisco. On June 19 he again returned to Reno, discovered his wife coming out of a nightclub with another man, followed them to another nightclub and subsequently drove to her apartment house and waited there until she and her companion arrived about 5:30 in the morning. Defendant states, '* * * I didn't kill him then. I don't know why. I was hot enough. * * * I went downtown and got drunk and went back to kill them and the car was gone.' He cached his automatic pistol in a hedge across the street from Thelma's apartment, drove downtown, got drunk, was arrested for colliding with another car and before being released the following morning, was served with divorce papers. On June 23, 1948, at a meeting in the office of his wife's attorney, he expressed bitterness toward his wife and said he should have shot her before. When his wife's attorney suggested that it was lucky that he did not do so, appellant expressed the conviction that no jury would convict him. He did however sign an appearance in the divorce action with a waiver of time, etc., as a result of which the deceased obtained her divorce and the restoration of her former name Thelma Ribail. Before returning to San Francisco defendant again cached the automatic in the hedge across the street from the Gibson Apartments. On July 8, 1948, on receiving information that appellant had again returned to Reno, deceased and her sister Lola, with the assistance of the district attorney, filed a complaint with the justice of the peace and again obtained a warrant for defendant's arrest. At that time the sisters agreed that if appellant should 'get' either of them she would throw her purse or shoes or something belonging to her away so that if such articles were found the other 'would know that Gambetta had her.' Both sisters were in constant terror of the defendant.

On July 14, 1948 defendant rented a light gray Ford sedan in San Francisco and drove to Reno, arriving about 7:00 P.M., where he first ascertained that the pistol was still in the hedge fully loaded. He unsuccessfully tried to locate his wife that evening and stayed at a motel in Reno. The following day, July 15, at 3:30 or 4:00 in the afternoon he first saw deceased driving a Lincoln sedan with a Nevada license No. 40-998. He followed the car but lost her, and later found the Lincoln sedan parked by her apartment. Later he drove to various clubs trying to locate her and finally saw her coming out of a club or restaurant with another girl and a man. He drove back to her apartment and after waiting for some time, drove off and again met deceased and her male companion leaving another club. He drove back to the apartment, waited till 4:30 A.M., drove downtown again, and again observed deceased and her male companion leaving another club. He again drove back to the apartment and waited for them to return, which they did about 5:00 A.M. Appellant approached them with his gun in his hand, and ordered Thelma's companion to leave, which he did. An argument ensued between appellant and deceased and he struck her between the eyes with the butt of his gun--the gun being discharged in the process but apparently doing no other injury. Two persons heard the shot and fixed the time at 4:55 A.M. The blow from the butt of the gun resulted in a cut one and one half inches long and about one third inch deep from which blood flowed and ran into the deceased's eyes and upon her clothes and to the street. Some drops were upon her shoes, which were subsequently found. Appellant forced deceased to get into his car, drove north to Fourth Street and turned east. As they approached Sutro Street deceased stated that she would jump out of the car and appellant said, 'If you jump I'll shoot you.' She started to jump out and he shot her. He stopped as quickly as he could, backed the car up to where she was, ascertained that she was dead, picked her up and put her on the back seat of his car, turned around and drove around Reno for about an hour and a half, called again at her apartment for the purpose, as he stated later, of killing the deceased's sister Lola. He was unable to gain entrance, drove south from Reno, turned west on what is known as the Mt. Rose road and stopped in the neighborhood of the Callahan ranch cutoff and transferred the body to the trunk compartment of the car. He then drove to Highway 50 and to San Francisco by way of Placerville, Sacramento and the Golden Gate Bridge and parked on the Great Highway facing the ocean in the vicinity of the Park Commissary where he was arrested about 5:00 P.M. by two officers of the San Francisco Police Department. These officers had received information that Gambetta, in a car bearing California license No. 3L1444, was wanted for investigation of kidnap and murder and that he was armed and dangerous. Defendant readily admitted his name and that deceased's body was in the trunk of the car. The .32 caliber automatic pistol with six cartridges was found on the front seat. During the course of the afternoon appellant frankly made three statements outlining most of the facts substantially as above recited. On July 20, 1948 the district attorney of Washoe county filed an information charging the defendant with murder. He waived his preliminary examination and was arraigned on the same day and entered a plea of not guilty. His trial commenced August 9, 1948, at which time facts as above recited were submitted to the jury. The verdict, finding him guilty of murder of the first degree and fixing his punishment at death was recorded August 13, 1948.

Appellant's first assignment of error arises out of the admission in evidence over his objection of state's Exhibits Nos. 5, 6, 7, 8, 9, 3 and 1. Nos. 5, 6 and 7 were enlarged photographs of the car parked on the Great Highway in San Francisco and in which defendant was sitting at the time of his arrest. Nos. 8 and 9 were enlarged photographs of deceased's body in the trunk compartment. Nos. 3 and 1 were enlarged photographs of deceased's body at the time of the post-mortem examination in San Francisco.

Appellant's objections to the admission of these exhibits were urged separately as the exhibits were respectively offered. The several objections were not based on the same grounds and did not as a matter of fact embrace all of the grounds now urged by appellant. For the purpose of this opinion however, we are willing to assume that all of the matters now urged by appellant as error were embraced within the scope of the objections made and the exceptions taken. Appellant urges that no proper foundation was laid for the introduction for any of these exhibits, that there was no showing as to who took or enlarged the photographs, or that the photographs, after their enlargement, or the other exhibits, had been continuously in the possession of any individual, that the exhibits were immaterial, that the photographs were merely cumulative, and that all of the exhibits tended to prejudice and inflame the jury. ^[1]

State's Exhibit No. 5 is an enlargement of a front view photograph of the Ford sedan showing California license No. 3L1444 as the car was parked on the Great Highway in San Francisco. No. 6 is an enlargement of...