State v. Lewis

• Decision Date: 04 May 1927
• Docket Number: 2769.
• Citation: 255 P. 1002,50 Nev. 212
• Parties: STATE v. LEWIS et al.
• Court: Nevada Supreme Court

255 P. 1002

50 Nev. 212

STATE v. LEWIS et al.

No. 2769.

Supreme Court of Nevada

May 4, 1927

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

George Lewis and William Benjamin Lewis were convicted of robbery and they appeal. Affirmed.

Dunseath & Frame, of Reno, for appellants.

M. A Diskin, Atty. Gen., Wm. J. Forman, Deputy Atty. Gen., L. D Summerfield, Dist. Atty., and Harlan L. Heward, Asst. Dist. Atty., both of Reno, for the State.

DUCKER J.

Appellants were jointly informed against by the district attorney of Washoe county, tried, and convicted of the crime of robbery. They appealed from the judgment of conviction and from the order denying their motion for a new trial.

The evidence is sufficient to sustain the verdict and judgment, as may be readily seen from the following statement, which includes the important facts shown by the testimony.

On the night of October 14, 1926, between the hours of 11 and 12 o'clock, two men forced their way into the Yokohama laundry, in Sparks, Nev., and robbed the proprietor, George Yamasaki, of over $100. Fifteen or sixteen dollars of the money taken was in silver, about 20 cents in pennies, and the rest in currency. After the robbers left, a flash light, which had been under a pillow on a bed, was missed. The members of the Japanese family in the house at the time of the robbery were George Yamasaki, the father, Mrs. Yamasaki, and their daughter and son, Dollie Yamasaki, and George Yamasaki, Jr., aged 11 and 16 years, respectively. The robbers tied the three former to beds in the room. Before they left the house, Officers Morris and Pryor arrived at the place. The former entered the house and kicking open one of the doors saw the two men in the room. One of the men had a gun and a flash light pointed at the officer and said, "Don't move!" The officer fired, and the door was kicked shut. The two men escaped from the house, running down an alley, with the officers in pursuit, firing at them. One of the men got into a Ford automobile and tried to start it but abandoned it, and the two ran out of sight of the officers. The officers ordered a bystander to take the automobile to a garage. They also notified Chief of Police Fletcher, who went in search of the men. When Fletcher was at a point outside of Sparks, at a distance of about a mile from the Yokohama laundry, he saw two men coming along the railroad track from the direction of Sparks. He heard one of them say, "Can you stick it out?" He ordered them to stop and both started to run, one going on the left side of a cattle guard, and the other on the right. The one at the right side of the cattle guard said, "Don't move." Fletcher and one of the men commenced shooting at the same time. Shortly after the shooting one of the appellants, George Lewis, was found by the officers lying under a freight car wounded. He was taken to the county hospital. The next morning the officer found several pistol cartridges at the spot where the wounded man was discovered, and about three or four hundred feet from there was found a flash light. Foot prints led from near where the wounded man was found to the flash light.

Appellant William Lewis was arrested the next morning in the restricted district in Reno, about 3 miles from Sparks. On his person were found $95 in currency, $16.75 in silver, and 20 cents in pennies, a certificate of registration of an automobile, and a bill of sale purporting to show sale of an automobile to William Lewis from W. R. Castle. The motor number of the car mentioned in the certificate of registration taken from the appellant William Lewis did not correspond with the motor number of the car in which the men tried to escape, but the license plates on this car bore the same number called for in the certificate of registration.

The appellants are brothers. George Lewis is 16 years old, and his brother 23. On the morning after the robbery, the younger Lewis was examined by the county physician and found to be shot through the body on the left side about an inch or an inch and a half below the apex of the heart, the bullet entering from the back. Chief of Police Fletcher and Chief of Police J. M. Kirkley, of Reno, visited the younger Lewis at the hospital on the morning of October 15, at about 10:30 a. m. Both of these officers testified, substantially, that Kirkley spoke to Lewis about the robbery, and that in answer to a question by Kirkley as to which one of them tied the Japanese, Lewis said that he did not remember; that they were too drunk; that they had been drinking all the way from Fallon. Kirkley also testified that he had a conversation with William Lewis, in which he denied having anything to do with the robbery.

The witness further testified as follows:

"He said that he had left Fallon in the afternoon of the day previous, with a man named Baldy Ferguson, driving a Chevrolet car. They had driven into Reno, not stopping at Sparks, getting in late in the afternoon; that he went up and got something to eat, and was started down an alley when he was stopped by a man and asked for the price of a feed. That he had got into an argument and had a fight; that he had gone down to the restricted district and had washed his hands. I asked him who the man was that was shot, and he said he didn't know any man that was shot. I told him that there was a man shot, in the hospital-I thought it was his partner. I asked him if he had ever been in trouble. He said, 'No.' I asked him if he had ever been finger printed. He said, 'No.' I informed him that I was about to finger print him and if he had been, he might just as well tell me. He then said, 'Chief, I might as well tell you. I have been in a little trouble. I am wanted in California. You could get $50 reward for turning me over. The man that is in the hospital is my brother."'

Both appellants were identified at the trial by George Yamasaki, Sr., George Yamasaki, Jr., and Dollie Yamasaki as the men who entered the laundry and committed the robbery. The younger Lewis was identified at the trial by Officer Morris as one of the men he saw when he opened the front door of the laundry, and as the one who stood near the car when the other was trying to start it after the robbery.

The elder Yamasaki and his son identified the flash light found by the officers as the one that was missed from the laundry after the robbery.

The defense sought to establish an alibi by the testimony of George Lewis. His codefendant did not take the stand. The former denied any knowledge of the robbery. He accounted for his wound and the encounter of himself and his brother with Fletcher near the place of the robbery by testifying that they left Fallon on the previous afternoon in a car driven by a man named Ferguson to go to Reno. The two left Reno about midnight and went to Sparks to catch a train back to Fallon. They waited there about 15 minutes and finding no train started to walk back to Reno. They were halted by a man carrying a flash light. Thinking it was some one trying to rob them, they started to run, and he was shot. His brother tried to help him along the track, but he finally fell down and could go no further. His brother left him there, saying he would go for help. He remained where he fell until the officer found him and took him to the hospital. His brother had $148, he said, when he came to Reno, which he received on a check for the sale of three horses. Neither he nor his brother had any pistol or cartridges. They came to Reno to buy some clothes, but finding the stores closed decided to go back without purchasing any. He could not recall that Chief Kirkley came to the hospital and questioned him on the following morning. He was suffering pain, was weak and somewhat out of his head.

Two witnesses for the defense testified to having known the elder appellant in Fallon by the name of Clark. One of them said he had known him for about a year, and the other for a few days prior to the 14th of October. The former had purchased some poultry from him about the 12th of October and paid something over $40 for it. The latter had purchased three horses from him on October 14th and paid him $150 for the horses. He gave him a check for $148 and $2 in silver.

One Barnes and his wife, the latter a sister of appellants, living near Hazen, testified that a week or so before the 14th of October William Lewis left a Ford automobile at their place. The car had license plates on it when left. Several days before the date of the robbery it was observed by the witness that the license plates were gone from the car. Barnes believed that the license plates exhibited to him, which were on the car in Sparks, were the license plates taken from the car of appellant.

In rebuttal, A. F. Price, jailer of the Washoe county jail testified that shortly after appellant William Lewis was brought to the jail he asked him for an overcoat and a little sweater that were in the car over at the city hall. The witness asked Joseph L. Kirkley to get them. Kirkley brought the coat over to the city hall. The witness was not positive that he saw the coat. On cross-examination the witness said that Lewis did not say that the coat was in the car at Sparks and did not say where the car was. Don Carlos, the owner of the garage to which the car was taken, testified that among the articles of clothing in the car at Sparks was a gray overcoat. Charles Hillhouse testified that a night or two after the robbery he saw an overcoat in the car at Sparks. Joseph L. Kirkley testified that on the evening following the robbery he saw an overcoat and other articles in the car at Sparks, and took them to the police station in Reno, and turned them over to one of the jailers; that he afterwards saw William Lewis wearing the...