State v. McKay

• Court: Nevada Supreme Court
• Writing for the Court: HORSEY, Justice.
• Citation: State v. McKay, 63 Nev. 118, 165 P.2d 389 (Nev. 1946)
• Decision Date: 16 January 1946
• Docket Number: 3432.
• Parties: STATE v. McKAY.

165 P.2d 389

63 Nev. 118

STATE v. McKAY.

No. 3432.

Supreme Court of Nevada

January 16, 1946

Rehearing Denied March 19, 1946.

See 167 P.2d 476.

Appeal from District Court, Second District, Washoe County; William McKnight, Judge.

Ladell McKay was convicted of murder in the first degree, and he appeals.

Affirmed.

George Lohse, of Reno, for appellant.

Alan Bible, Atty. Gen., George P. Annand and Homer Mooney, Deputy Attys. Gen., and Melvin E. Jepson, Dist. Atty., and Harold O Taber and C. Lester Zahniser, Asst. Dist. Attys., all of Reno, for respondent.

HORSEY Justice.

The appellant, Ladell McKay, on the 25th day of January, 1945 was convicted in the Second Judicial District Court, in and for the County of Washoe, of the crime of murder in the first degree, for the killing of one Robert Flindt, and the jury before whom he was tried having failed in their verdict to fix the punishment, the trial court, on the 7th day of February, 1945, pronounced judgment of death upon the appellant. From the said judgment and from the order of the trial court denying the appellant's motion for a new trial, appellant has appealed.

The appellant has presented seven assignments of error, which will be quoted hereafter, as they are considered.

In order to make clear to what extent the evidence should be detailed and considered in passing upon its sufficiency to justify the verdict and to prove the corpus delicti, it may be well at the outset to state briefly the respective positions and theories of the state and the appellant, as we understand them, from the testimony and from the briefs and arguments of respective counsel.

The state insists that the killing of Robert Flindt, by the appellant, at the time and place alleged in the information, was committed in the perpetration of the crime of robbery, and was, therefore, murder in the first degree. To establish such theory the state relies principally upon the testimony of Kenneth Earl Petsch, the only eyewitness other than the appellant to the striking, beating and kicking of the deceased, from which it appears that, without provocation, the appellant assaulted, severely beat and kicked the deceased, dragged him behind a fence, then kicked him again in the face, and thereupon robbed him by taking his wallet from his pocket. The state presented also the testimony of Marie Dollen as to a remark which she claimed was made by appellant to her in the Midway Bar when appellant was leaving there with Robert Flindt, the deceased, and said Kenneth Earl Petsch, to the effect that they were going 'to take the kid (indicating Flindt by nodding toward him), for a walk,' and that when he, appellant, returned he would have plenty of money and they would have a 'hot' time (appellant denying that he said anything of that sort). The state presented further the testimony of Dr. Lawrence Parsons, the autopsy surgeon, as to the nature of the injuries upon the body of the deceased and that he died from a cerebral hemorrhage shortly after the infliction of the injuries. The state presented also the testimony of Chief of Police Fletcher as to a statement which he testified the appellant made to him about noon on the day of the beating and death of Robert Flindt, in reply to a question of the Chief as to why he dragged deceased behind the fence. Chief Fletcher said that the appellant stated to him that he didn't want anyone to see him rob Flindt.

On the other hand, the appellant, who testified as a witness in his own behalf, admitted that he repeatedly struck and beat the deceased at the time and place alleged, but denied that he kicked him, and claimed that the deceased, on two occasions in the Midway Bar, and upon a third occasion immediately before appellant struck deceased, made improper advances of a sexually perverted nature toward appellant, which made appellant very angry, and that his striking and beating of the deceased on East Fourth Street in Reno, Nevada, near the Wagner Tank Company, on the early morning of November 26, 1944, was caused solely by such improper advances and the angry state of mind thereby produced in appellant, and without any intention to rob the deceased. Appellant testified he told Petsch about Flindt's improper advances and that he was 'queer,' which Petsch, in his testimony, did not remember. The appellant testified further he did not remember he made the statement to Chief of Police Fletcher that the Chief testified that he made, in reply to the inquiry of why he dragged deceased behind the fence, to the effect that he did not want anyone to see him rob Flindt. The appellant testified that he must have been wrong to make the statement that he took Flindt's money after he dragged him behind the picket fence, and said: 'After I took 'Kelly' back there, that is when I took his money. 'Kelly' was standing there.' It will be observed that, contrary to the testimony of 'Kelly' Petsch, the appellant claims that, after dragging Flindt behind the picket fence, he went over to where 'Kelly' was, and that he, appellant, then first formed the intention to rob; that the beating and striking of Flindt had occurred by reason of the improper advances, and that a considerable interval of time elapsed between the completion of the striking and beating and the formation of the intent to rob, and that appellant did not strike, beat or kick the deceased after taking him behind the picket fence, nor after he formed the intention to rob him; that, in fact, he never kicked Flindt at any time.

At the trial, in response to the question, 'Why did you drag Findt's body to the back of the fence?' McKay answered: 'I don't know. I told you it was because I was drinking and I was mad, and that is all I know.'

It is our understanding that appellant's counsel contends, solely upon the basis of the testimony of appellant, that the striking and beating, and the kicking of the deceased, if he was kicked, occurred in the heat of passion, upon provocation sufficient to excite an irresistible passion in the mind of a reasonable person, and that if death resulted, it could not be murder in the first degree, such killing not being willful, deliberate and premeditated, and not having been done in the perpetration, or attempt to perpetrate arson, rape, robbery or burglary; that a considerable period of time elapsed after the last of the physical acts constituting the killing and the formation of the intention to rob, so that the acts which produced the death of deceased could not be deemed to have any connection with the robbery; that if the provocation was not legally adequate to reduce the crime to manslaughter and yet, if the killing was under the influence of passion and, therefore, without express malice, and not willful, deliberate and premeditated, it would, at the most, be murder in the second degree.

In view of the conflict in the evidence upon material matters it is necessary, in order that we may determine justly as to appellant's first assignment of error, to-wit, 'That the verdict is contrary to the evidence and the law, and that the corpus delicti was not proven beyond a reasonable doubt,' that we determine whether or not there is substantial evidence in the record in support of the verdict of the jury. To do so, it is essential that we review those portions of the evidence that relate materially to the matters concerning which the evidence is in conflict. And, bearing in mind that appellant's assignment of error V is that the court erred in denying appellant's motion for a new trial, and particularly bearing in mind the third ground thereof, that the court's ruling in denying appellant's motion to remove the handcuffs prevented his having a fair and impartial trial within the meaning of the Constitution, and was prejudicial to him, it is necessary to a proper determination of the matter, and to a fair understanding of the evidentiary basis for our conclusions, that we present the evidence herein much more fully than would be essential were the element of prejudicial influence from the shackling not involved.

Kenneth Earl Petsch, commonly known as 'Kelly' Petsch testified, in part, substantially as follows: That his business or occupation was working for the Oregon-Nevada-California, working on the dock and loading meat; that he lived at the Gallery Hotel in Reno and had lived in Reno since about the 15th of August, 1944, and was steadily employed up until November 25, 1944; that he was acquainted with Ladell McKay, having first met him at Kenilworth, Utah, where they worked for a short time at a coal mine near there; that he saw appellant about two weeks before November, 26, 1944, in Reno, Nevada, either at the Palace or the Bank Club, for a few minutes, and saw him down town for about a minute, just long enough to speak, on another occasion prior to Saturday night, November 25th; that on Saturday night, November 25, 1944, the witness saw McKay at the Palace or the Bank Club; that witness was playing lottery and McKay was playing the dice; that witness die considerable drinking and McKay did some drinking, too; that the witness and 'Art' Mann had been drinking all evening, from the time they got off work until they got separated at the Bank or Palace Club; that after having several drinks there the witness and McKay had a drink at the La Fiesta, and from there went to a new place around the Depot Bar, drank there for quite some time, and upon leaving there went to the Midway, on East Fourth Street, in Reno; that the witness could not remember how he got to the Midway, as he was pretty drunk, but remembered being there, in fact having intended to go there earlier in the evening; he could not recall what time in the evening they got there, but imagined it was about midnight; that he ...