State v. Mangana

• Decision Date: 02 December 1910
• Docket Number: 1,880.
• Citation: 112 P. 693,33 Nev. 511
• Parties: STATE v. MANGANA.
• Court: Nevada Supreme Court

112 P. 693

33 Nev. 511

STATE v. MANGANA.

No. 1,880.

Supreme Court of Nevada

December 2, 1910

Appeal from District Court, Nye County.

Ascension Mangana was convicted of murder in the first degree, and he appeals. Affirmed.

The defendant was tried under an indictment, the charging part of which follows: "The said Ascension Mangana, the defendant above named, at Leeland, in the county of Nye state of Nevada, on or about the 15th day of June, A. D 1909, and before the finding of this indictment, without authority of law, and with malice aforethought, then and there killed one Byron Nelson, a human being, by then and there stabbing the said Byron Nelson with a sharp instrument the character of which being unknown to the said grand jury." The jury brought in a verdict of murder in the first degree and fixed the punishment at death.

The following are the principal facts as claimed by the state:

Byron Nelson conducted a little saloon in Leeland, Nev., and had a partner or associate named Richard Stillwell, and Nelson was in the habit of cashing the checks of the different employés of the railroad on pay days. On June 15, 1909, which was pay day at Leeland for the section hands on the railroad, Nelson did not cash them, for the reason that the station agent or an employé of the railroad had in his possession sufficient money to cash the checks of the other employés. The defendant and an associate of his, Ochoa, who worked with him as a section hand on the railroad, were aware that Nelson on pay day nights had sufficient money in the till to cash a number of checks, and that on this pay day he did not cash the checks, and consequently had the money on hand, and had other money which was paid in that evening upon previous accounts and for drinks. The defendant and Ochoa and others were in the saloon drinking that night. The defendant and Ochoa remained with Nelson and Stillwell until after the others had gone, and the saloon remained open later than usual and until about midnight. The next morning the body of Nelson was found near the bar and door, and that of Stillwell 90 feet away from the saloon and partly under a wagon. The former had been stabbed in the throat and chest five times, and the latter in the throat and chest and back four times. There were numerous tracks overlapping each other and blood from the wounds at the place where Stillwell's body lay, and no blood was found between there and the saloon. His shoes were on his feet, unlaced, without his stockings. Only the top button of his trousers was fastened, and his suspenders were hanging down loose. The till was found open, and nothing remained in it but a five-cent piece and a crumpled $5 bill. With the exception of a cent piece upon the bar, no other money was found. Nelson's watch, which had been fastened to his suspender by a chain, had been jerked off and was missing and the watch ring which had been fastened to the watch was found at his side.

One of the men working on the section testified that after he had gone to bed in the bunkhouse that night he heard somebody say that they had got into trouble and would have to leave. The next morning the defendant and his companion, Ochoa, were missing and not to be found. Wages for half a month were due them and unpaid at the time they left. The tracks of the two men were found, and were turned and made so as to elude pursuers. After two days and a night the defendant was captured at Amargosa, a little after dark, in a store where he had gone to purchase crackers, canned corn, and tomatoes. His own watch, knife, pistol, and a few dollars in money were taken from him at the time he was arrested. The next morning he threw away and made an effort to conceal the watch which had been taken from the body of Nelson.

The defendant, a Mexican about 20 years of age at the time of the killing, and not speaking English much, if any, relying upon his own testimony, claimed on the trial that he returned from work upon the section after 5 o'clock on the evening of the 15th, received a check for his wages for the previous month, cashed it at the railroad office, and after paying a grocery bill had his dinner and was in the saloon in the company of some of the other section hands, drinking; that later in the evening he left the saloon with another railroad laborer, Tomas Gutierrez, and went with him to the bunkhouse that they went to bed in their respective rooms; that later in the evening he was awakened by Ochoa, who was in the saloon when he left about 10 o'clock, and who at the time he awakened him had a knife and commanded him to keep quiet and to get up and come with him; that he arose, put on his clothes, and followed Ochoa; that he had a pistol in his possession when he went with Ochoa.

The attorney who had been appointed by the court to represent the defendant said to the jury in his opening statement regarding what the defendant would testify to upon the stand: "That Ochoa dogged his footsteps. He will show that he went down the railroad with Ochoa; that they fled across the desert until they came to another railroad; that during this time they traveled the greater part of the first night and the greater part of the next day; that upon the second evening he was tired and thirsty; that he sat down and drank part of a can of tomatoes which Ochoa had brought along with him; that he thereupon lay down by the railroad and slept; that in the morning he arose and Ochoa was gone; that when he lay down at night his coat was alongside of him, and in the morning his coat was gone, and Ochoa's was there. He says he got up and started on his journey, and he will tell you that this watch, which plays such an important part in this case, was in the coat. He will tell you that he came into Amargosa; that he was ignorant and thirsty and hungry and went into the store to purchase something to eat, and while in the store he was arrested. He will tell you that he was searched; that they found certain things on his person; that they took the purse and the knife and the gun; that they didn't find the watch which has been introduced in the case. He will tell you that this watch was on his person; that he didn't know what he was arrested for; but that when he was arrested he suspected there was something in connection with the watch which had caused the flight of Ochoa from the town of Leeland. Consider his position: A stranger, entirely ignorant of the laws and customs of this country, found in the midst of hostile people with a piece of evidence on his person which he must know came out of some trouble on the part of Ochoa. He will tell you that the next morning he threw that watch away. He tried to get rid of that evidence upon his person that the watchers found."

Upon the witness stand, Tomas Gutierrez contradicted the defendant's testimony that he had left the saloon and gone with Gutierrez to the bunkhouse and then to bed on the night the men were killed.

Also tending to contradict defendant's statement upon the trial that he had gone to the bunkhouse with Gutierrez and had gone to bed and was not present or aware of the killing of Nelson and Stillwell, there was testimony that the defendant said, a few days after his arrest and before the preliminary hearing, that he and Tomas Gutierrez were present at the time Nelson was stabbed; that Gutierrez knew all about it if he would tell; that Ochoa treated and paid for the drinks, and, looking over his change, made complaint to Nelson that it was wrong, and demanded more money; that Tomas asked Nelson to give him his right change; that Nelson made an effort to use a gun; that Ochoa stabbed or tried to stab Nelson; that, while Ochoa was trying to stab Nelson over the bar, defendant made a pass to stop him; that Stillwell was behind the bar, and defendant could not hold Ochoa.

J. A. Sanders, for appellant. R. C. Stoddard, Atty. Gen., and Leonard B. Fowler, Deputy Atty. Gen., for the State.

TALBOT, J. (after stating the facts as above).

As error it is urged by counsel for defendant that the case was presented to the jury upon two theories: First, that the appellant was guilty as charged in the indictment with killing the deceased with malice aforethought; second, that the homicide was committed in the perpetration of robbery; and that, as the court submitted the case upon both theories, it is impossible for any one to say for what crime the appellant was convicted.

It will be observed that the indictment follows closely the form provided by the statute. Section 17 of the act relating to crimes and punishments provides that: "All murder which shall he perpetrated by means of poison, or lying in wait torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree." Comp. Laws, § 4672. Under this statute and the indictment as drawn, defendant could be convicted of either willful, deliberate, and premeditated killing, or of a killing committed in the perpetration of a robbery, whether it was or was not willful, deliberate, and premeditated. If the defendant in advance planned or intended to kill in order to accomplish the robbery, and in pursuance of that intent did kill the deceased, he was guilty of both a willful, deliberate, and premeditated killing, and of a killing in the perpetration of a robbery. These are not separate statutory homicides, and if the jury believed, beyond a reasonable doubt, that the defendant was guilty of killing in either one or both of these ways, they were justified in the rendition of the verdict carrying the extreme penalty. If the indictment had unnecessarily charged that the killing was...