State v. Murray

• Decision Date: 01 March 1950
• Docket Number: No. 3538,3538
• Parties: STATE v. MURRAY et al.
• Court: Nevada Supreme Court

Page 265

215 P.2d 265

67 Nev. 131

STATE v. MURRAY et al.

No. 3538.

Supreme Court of Nevada.

March 1, 1950.

Carville & Carville, of Reno, for appellants.

Alan Bible, Atty. Gen., Geo P. Annand and Robert L. McDonald, Deputy Attys. Gen., W. T. Mathews, Sp. Asst. Atty. Gen., Leonard Blaisdell, Dist. Atty., of Hawthorne, and Wm. M. Kearney, of Reno, for respondent.

BADT, Justice.

Defendants, who are the appellants here, were found guilty of grand larceny by a jury in the district court of Mineral County, and have appealed from the judgment and from the order denying their motion for a new trial. They assign error in several particulars, but the third assignment of error embraces numerous rulings of the trial court in the admission and rejection of evidence and the fourth and fifth assignments of error include numerous orders of the trial court in giving the jury instructions over the objections of the defendants and in refusing instructions requested by the defendants. We have then to deal not only with a great number of assignments of error but with a voluminous record made up in the course of a trial lasting some eleven days. The facts are as follows:

Mina, in Mineral County, and Gabbs, to its north in Nye County, are approximately forty-two miles apart and connected by a highway running in a general northerly and southerly direction. Some nine miles north of Mina is Luning. The defendants Mr. and Mrs. Kiser resided at Mina, and defendant Murray lived at a place known as Roberts Roadhouse, some three miles south of Gabbs, where he was engaged as a bartender. About eighteen miles south of Gabbs two large culverts or underpasses were constructed under the highway to carry off flood waters from a canyon or wash known as Petrified Springs Wash, which comes down from the southwest. These two culverts are sufficiently large to permit an automobile to drive through.

About 7:30 P.M., October 30, 1947, one Dale Ritchie, an agent for the Shell Oil Company and residing at Mina, was driving from Mina to Gabbs. As he approached and passed over the culverts he noticed lights shining from the culvert upon the hillside east of the highway. He stopped his car, walked back to the underpass and called down to see if there had been a wreck, and if help was needed. He testifies that the reply was, 'No, we are looking for a road out of here.' His car, as noted, was facing north toward Gabbs. He returned to his car but before starting, the car in the culvert came out, drove out to the highway, turned in front of him and started south toward Mina. The car was the coupe belonging to the Kisers. Ritchie proceeded a short distance toward Gabbs and saw a bunch of cattle beside the highway, apparently frightened, closely packed together and with their heads up. Ritchie turned his car around to follow the coupe and within the course of a mile or more met the coupe returning toward Gabbs. Again Ritchie turned on the highway and followed them. The coupe stopped at the Roberts Roadhouse and Ritchie pulled up along side them. Under the rear deck or turtle back of the coupe he saw a butchered beef of which the hind legs and tail were protruding--the cover of the turtle back being partly closed. Murray left the car and had with him two heavy hunting knives which Ritchie demanded and received from him. Murray's hands were bloody. Roberts, the proprietor, came out of the roadhouse and claimed the knives, but Ritchie advised that they could be returned to him in due time. He told Mr. and Mrs. Kiser that they would have to come with him to Mina. As above noted, Mina is in Mineral County While the Roberts place was in Nye County. The Kisers drove to Mina and Ritchie followed in his own car. On arrival, the beef, the knives and the car were delivered to the deputy sheriff at Mina. The deputy sheriff awakened Roland Baker, who had a grocery store and butcher shop at Mina, and the beef was taken from the car and placed in the icebox. Baker removed the heart and lungs which were still in the carcass. The cow was in good condition and the heart and lungs were still warm. It was later removed to a freeze plant at Hawthorne, and the meat was in good condition and fit for human consumption at the time of the trial. The beef was identified as a heifer a little over two years old and belonging to one W. J. Stinson. It was a 'leppy' calf whose mother had been killed on the highway, and had been raised on a bottle and was something of a pet.

On the day following the discovery of the defendants with the beef in the Kiser coupe, the officers made an investigation of the premises and followed automobile tracks identified as made by the Kiser coupe through the underpass and westerly and southerly up the Petrified Springs Wash for about half mile and moccasin tracks circling from a point where the car stopped to a hillside a short distance away where fresh entrails were found. The moccasin tracks were definitely identified as made by Kiser's moccasions. At the spot was found an empty .22 long rifle shell case and an unexploded .22 long rifle shell of the same make as numerous shells found in the Kiser car and suitable for use in a rifle subsequently found in the Kiser home at Gabbs. No rifle or other firearms were found in the Kiser coupe. The cow had been killed by a .22 calibre bullet that was lodged in the back of the neck just behind the horns and which had apparently penetrated the spinal column and which, as appeared from the powder burns in the hair, had been fired at a range less than ten inches. Bloodstains on the Kiser coupe and on the rear wheels and on the floor of the culvert or underpass where the coupe had stopped indicated that blood had flowed from the carcass. The terrain where the entrails were found was rough and rocky. A direct line from the entrails to the nearest point on the highway was about 300 feet, and the nearest point on the highway from which a man standing by the entrails could be seen was about 630 feet.

Each of the three defendants testified in defense and did not dispute any of the foregoing facts. The Kisers testified simply that they found the dead carcass of the cow about half mile from the highway, returned to the Roberts place where they borrowed the two hunting knives and that Murray returned with them to assist them in bringing the cow in so that it could be delivered to the proper authorities and its owner notified; that it could be preserved if the meat proved to be good and otherwise could be cooked for dog meat. In support of this, Mr. and Mrs. Kiser related how they had been taking a drive through the country (it being Kiser's day off), had visited a number of places and were on their way home to Mina shortly before sunset when they decided to pursue the old road under the culverts and up the wash for the beauty of the scenery and their fond recollections of the place, for it was there that Mr. Kiser had proposed; that their dog had been permitted to run loose and was barking at a place on the hillside and that when Kiser went to investigate the cause, he found the heifer dead; that it was bloated and he stuck it in the stomach with his pocket knife; that it smelled badly; that they drove back to the Roberts place and Mr. Roberts ordered Murray to return with them and assist them and gave them the two hunting knives; that they understood that the deputy sheriff of Nye County would be at the Roberts place that evening and that they could deliver the carcass to him; that they drove back in coupe to the carcass where Murray made an incision in the neck and opened the carcass and Kiser removed the entrails. (It was dark then and Mrs. Kiser held a flashlight to assist in the work. The car lights afforded some light although not shining on the carcass.) that before disemboweling the animal they tried to load it into the coupe but were unable to do so and thought that it could be better done if disemboweled; that they then loaded the cow in the car, drove back, stopped a few moments under the underpass, and returned to the highway where their first intention was to deliver the carcass to the authorities of Mineral County at Mina, but after driving a short distance, decided it was best to turn back and deliver the carcass to the authorities of Nye County at Gabbs, as Murray had in any event to return there to work; that they made no attempt at any kind of concealment; that the hind legs and tail of the beef could be seen protruding from under the rear deck; that they drove up to and parked in front of the Roberts place that was brilliantly lighted; that they did not kill the animal and did not know how it was killed; that they at no time had any firearms with them during their trip; that they at no time had any intention of appropriating the animal to their own use or depriving the true owner of it. It was also shown that during the afternoon another car was seen parked on the highway in the neighborhood of the culverts. A number of witnesses testified to the good reputation of all of the defendants. Appellants' brief describes the animal when found as being 'on the verge of putrefaction.' One of the deputy sheriffs testified to Mrs. Kiser's statement as to finding the cow that 'stunk to high heaven.' Kiser also testified that the cow 'smelled pretty bad.'

From the fact that the transcript covers almost a thousand pages of testimony it will be seen that the foregoing resume is indeed brief. We believe however that it presents all of the facts necessary for this opinion. It is apparent that the main facts adduced by the state were not contradicted by the defendants. These include their possession of the butchered animal, their participation in disemboweling it, their position under the highway when Ritchie drove over, their possession of the knives with which the cow was disemboweled, their loading of the animal into the Kiser coupe, their transportation of it to the Roberts place, their surrender of the...