State v. Lewis

• Decision Date: 12 September 1889
• Docket Number: 1,296.
• Citation: 22 P. 241,20 Nev. 333
• Parties: STATE v. LEWIS
• Court: Nevada Supreme Court

22 P. 241

20 Nev. 333

STATE v. LEWIS

No. 1,296.

Supreme Court of Nevada

September 12, 1889

Appeal from district court, Elko county; R. R. BIGELOW, Judge.

J W.Dorsey and J. A. Plummer, for appellant. The Attorney General, for the State.

HAWLEY C.J.

Appellant was convicted of murder in the second degree for the killing of George Piccoli, and was sentenced to the penitentiary for the term of his natural life. Upon the trial he relied upon two separate and distinct defenses: (1) Self-defense; (2) insanity. The various questions presented for our determination relate solely to the plea of insanity. In order to thoroughly understand the nature of the objections urged by counsel, and to fully comprehend the rulings of the court thereon, it will be necessary to give a brief statement of the facts concerning the homicide and a synopsis of the testimony bearing upon the question of appellant's insanity, as the rulings of the court must to a great extent be determined with reference to the particular facts and circumstances that were introduced at the trial.

Appellant was the foreman of the Tripolimine at Bullion, in Elko county, and had been employed in that capacity for about four months prior to the homicide. Piccoli, the deceased, was a laborer in the same mine. The men boarded and lodged at Highland, about two miles distant from Bullion. About two weeks prior to the homicide, Piccoli quit working in the mine on account of the bad air therein. After he quit work appellant sent him word that he need not return. On the evening of September 2, 1887, there was a dance in Highland which was very generally attended. After the dancing was over, several young men, including appellant and deceased went into a saloon near by, and treated each other. Piccoli was very drunk. Appellant was sober. Piccoli was sitting on the top of the counter, with his feet hanging down. Appellant was standing at the end of the counter. Piccoli said in a loud voice: "People in this place don't like me because I am an Italian." Several persons present said, (among the number was appellant:) "You are mistaken." Piccoli, then directing his remarks to appellant, said: "I can work in a mine with you anywhere." Appellant replied: "You have no money that says so." Piccoli said he had, placing his hand on his hip pocket. Appellant then said: "You are a liar if you think so." Piccoli replied: "You are a bastard," or words to that effect. Appellant stepped back and picked up a chair, raised it, and was in the act of striking, when others interfered, and appellant was removed from the saloon. This difficulty occurred between the hours of 2 and 3 o'clock on the morning of the 3d of September. Appellant, after his removal from the saloon, went to different places in Highland for the purpose of getting a pistol. Failing to obtain one, he started alone, and walked to Bullion. There, without the knowledge of any other person, he secured a pistol, and in company with Fred. Loschenkohl returned to Highland. On the way he repeated to Loschenkohl what he claimed to be the facts of the difficulty in the saloon, differing to some extent from the testimony of other witnesses as given at the trial. He stated that Piccoli called him into the saloon to take a drink, but he thought it was for a row; that he called Piccoli as---of ab---, instead of a liar,(appellant in his testimony denies this part of the statement,) and gave a different version of some of the other minor and unimportant details. After mentioning to his companion the efforts he had made to get a pistol in Highland, he said: "I am prepared for him now." He further stated that "he was going to kill Piccoli;" that "a man that called him a bastard could not live." Loschenkohl remonstrated with him, tried to persuade him to stop, and told him to think of his mother and sisters, and consider the trouble he would give them. Appellant then said: "I may not kill him; but I will make him get down on his knees and apologize." As they neared Highland appellant requested Loschenkohl to stay behind, because Piccoli was behind some of the trees on the roadside, and might shoot, and he did not want anybody to get hurt for him. Then he began to hurry up, and out-traveled his companion, and came to Mrs. Roach's cabin about 200 feet ahead of him. Mrs. Roach testified that appellant looked strange that she did not recognize him when she first saw him running up; that she said to him there was something the matter; that, after a few inquiries about the whereabouts of the saloon-keeper, (Jimmy Hamilton,) he turned around and said, "Defend yourself;" then she heard the report of the pistol. It appears that Piccoli was standing near his cabin door when the first shot was fired; that he ran into his cabin, and closed the door; that appellant then ran up to the window of the cabin and fired one shot through the window; that he then went into the cabin and fired three shots when Piccoli was in a stooping or fallen position on the floor; that appellant then went out of the cabin, and in a few minutes came back, "put his pistol behind Piccoli's head," and fired another shot; that Piccoli did not speak a word after the shot was fired through the window. The homicide occurred about half-past 5 o'clock,--just about daylight. Appellant, after the homicide, talked freely about it to every one he met. One witness said: "He acted as though he ought to receive a reward, and as thought everybody ought to be proud of him." To several persons he said "he had only killed a rattlesnake." To many his actions seemed strange and peculiar. Shortly after the shooting he started to return to Bullion alone; but two persons caught up with him, and accompanied him, and delivered him to the justice at Bullion. On this return trip he repeated the whole story of the quarrel and final shooting. Among other things he said "he was not sorry for himself, but was for his relations and friends;" that "he had killed him, and he was neither drunk nor crazy when he did it." The next day, when the sheriff took him into custody, he again voluntarily made substantially the same statements, repeating that he had not done anything he was sorry for; that he had a mother and sisters, and felt sorry for the trouble it would cause them, but was not sorry for killing the man; that "no man could call him a bastard and he and that man live." The latter remark was made to many other persons. One witness testified that "he said if there was a jury in the world to hang him for what he had done he was willing to hang." Appellant at the time of the homicide was 28 years of age.

On the part of the defense several witnesses, who had known appellant for many years, testified that at times they considered him mentally unsound. The following reasons, among others, were given why they considered him insane, viz.: That in laying a track in the mine and curving the iron rail he would insist on the curve going in the opposite direction from which it should, and then, after trying it, he would see that he was wrong, and then roll up his eyes and laugh; that he insisted that it was unnecessary to timber any mine; that at times he was moody without cause, and would state things as true having no foundation in reason; that he had two or three times tried to commitsuicide; that twice, when he was engaged as a laborer in the mines at Eureka on the day shift, he reported himself for work in the evening, just as though he had had his night's sleep, with his dinner bucket with him; that at such times he seemed to wander around as if he did not know what he was doing, but when he was spoken to about it he would go right off; that he was subject to spells of melancholy; that when moody and sullen he desired to be by himself; that he was at times eccentric, and unreasonable in his conversations and actions; that at such times he talked at random, incoherently and unnaturally. Independent of these occasional peculiarities, he was considered a bright young man of average ability and intelligence, and possessed a good deal of delicacy and refinement. It was also shown that he had been the unfortunate victim of a series of accidents from early childhood to years of manhood; that the effect of the injuries he had thus received was such that when he was sick or unduly excited he would have delirium; his head would ache; and that these attacks continued and increased as he grew older. Appellant was a witness in his own behalf, and his testimony tended to show that at the time of the homicide he was laboring under the delusion that some of the persons employed at the Tripoli mine had entered into a conspiracy to take his life, and that they had hired Piccoli to kill him, and that he was compelled to kill Piccoli, and did kill him, in order to save his own life, in necessary self-defense.

The witnesses in rebuttal on the part of the state testified that he was a competent and faithful workman; that his acts, conduct, and conversations at the various times they had known him were rational and natural; that on the evening before and morning of the homicide he was excited and nervous; that in their opinion he was sane, and knew right from wrong. Upon this statement of facts, as shown by the record on appeal, we shall proceed to notice in detail the various assignments of error relied upon by appellant for a reversal of the judgment.

1. The objections urged against the rulings of the court in excluding portions of the testimony of Mrs. Bates, J Henderson, and P. Webber, witnesses for appellant, will be considered together. Mrs. Bates, the mother of appellant, had testified at length and with great minuteness of detail in regard to the numerous accidents and spells of sickness that had befallen her son, and the effects...