State v. Potts

• Decision Date: 09 November 1889
• Docket Number: 1,305.
• Citation: 22 P. 754,20 Nev. 389
• Parties: STATE v. POTTS et al.
• Court: Nevada Supreme Court

22 P. 754

20 Nev. 389

STATE v. POTTS et al.

No. 1,305.

Supreme Court of Nevada

November 9, 1889

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

J. A Plummer, for appellants.

The Attorney General, for the State.

MURPHY J.

The indictment charges the defendants with the crime of murder. They were jointly indicted, tried, and found guilty of murder in the first degree. Miles Faucett resided on a ranch seven miles from the town of Carlin, in Elko county. He appears to have been on terms of friendship with the appellants, having boarded at their house in Carlin before he moved to the ranch, and the defendant Elizabeth Potts was doing his baking and washing. On the evening of the 1st of January, 1888, he was seen at the house of the defendants by J. R. Limbargre who asked Faucett if he was going back to the ranch that night; and, after Faucett answered in the affirmative, tried to dissuade him from going, and invited him to come and stop with him (Limbargre) for the night. The defendant Elizabeth Potts invited Faucett to remain at their house over night. Faucett and Limbargre then left Potts' house, took Faucett's team, and hauled some hay for Limbargre. Afterwards drove to Limbargre's house. Put some straw in the sleigh to feed the horses with. Then Faucett said he would go and stop at Potts' house over night, as they owed him some money, and he thought it doubtful whether he could get it or not, and he was going there to try and get it, as the Pottses were going away. Before leaving Limbargre Faucett paid him a debt he owed him of five dollars. For the purpose of paying this sum, Faucett drew a purse from his pocket, which purse contained about one hundred dollars. When Faucett left Limbargre to go to Potts' house it was between 5 and 6 o'clock in the evening, and was the last time that Faucett was seen alive by any person outside the family of the defendants. Potts afterwards told Limbargre and a number of other persons that Faucett had gone east on train No. 1, which left Carlin between 6 and 7 o'clock on the evening of the 1st of January, 1888, giving, as a reason for Faucett's sudden departure, that they had some difficulty. On the 3d or 4th of January, 1888, the deputy-sheriff drove out to Faucett's ranch, found the door of the house open, and everything of value taken away. Limbargre had loaned Faucett a pick and shovel to use on his ranch. They were afterwards found at Potts' house. Potts also had Faucett's team, wagon, sleigh, and other property that was known to belong to Faucett. The Potts family left Carlin in the month of September, 1888. In the month of December, 1888, the remains of a human being were found buried in the cellar connected with the house occupied by the defendants while living in Carlin. A part of the head was gone, the legs below the knees had been cut off, and one arm was gone. There was neither money nor papers found with the remains. The defendants were arrested in Wyoming territory.

On the preliminary examination both defendants admitted that the remains found in the cellar were the remains of Miles Faucett. Elizabeth Potts testified that she caught Faucett, in the summer of 1887, in a barn close by her house, where he had been sleeping in the day-time, in the act of ravishing her four-year old daughter. She also testified that Faucett boarded with them for some time after this happened, and until Faucett had left Carlin to live on the ranch; that she baked, washed, and ironed for him up to the time of his death; that he came to her house twice a week for his bread and clothes; that he owed them $180 for board, washing, and baking. In all other matters, in relation to the manner in which Faucett came to his death, she corroborated her husband. Charles Potts, son of the defendants, also corroborates their statements as to the manner of the shooting, and Faucett taking his own life.

Defendant Josiah Potts testified that during the evening they all took several drinks of liquor. Their son Charley played on a guitar and sang a song, after which he (Potts) went to his wife's trunk, as he says, to get stamps, because he was going to write for a catalogue, and there found a letter written by his wife to one McIntosh, in which it is purported to have been written that Faucett had some time prior thereto attempted improper liberties with the daughter of the defendants, and that Faucett had also made threats as against the lives of the defendants, and he would take his own life afterwards. Potts then says: "I took the letter in the other room. Faucett was sitting near the window. I asked Faucett what he meant by this. I took and read the letter to him. He said: 'Well, Joe, I must have been crazy.' 'Well,' I said, 'crazy or no crazy, I will have you lynched for it.' He dropped on his knees, you know, and begged me to let him go, and said he would make over his property to pay our debt,--what he owed us. He said he would make over the horses and wagon and the ranch at the Hot Springs. He said he did not think that would more than pay what he owed us. Wife said: 'Let him go;' so I stood a little while. At that he wanted to get the paper and pencil. He asked my wife for paper and pencil. There happened to be a little memorandum book on the table at the time, so he picked that up, and said, 'that will do.' He tore a leaf out, and wrote it out. At last he asked my wife to write it; that he did not feel able, or something to that effect. She wrote it out. He stepped up to the corner of the table, and signed it. There was something else that he wanted to put to it, about his going away. I was busy reading the letter. That bill of sale was handed to me. Then I--in the mean time, I was looking at the letter--I got so aggravated that I could not make up my mind to let him go. I threw it back, and said; 'To hell with your note!' I said: 'I will have you lynched, anyway.' He jumped up, and grabbed the revolver, and said: 'No you don't; you will be blamed for this;' and shot himself. He took the revolver from the cupboard. We always kept the pistol there, out of the way of the children. He said he was only playing with the girl; he must have been crazy. After that I sent wife and Charley out and shut the door. After that I went back into the room, and sit there most half the night, thinking what I should do. I came to the conclusion to bury him, because I was so overcome with fright. I thought I should be blamed for it. I took him down in the cellar. I carried him out. I did not search the body."

On cross-examination, defendant said: "After his death I did not take any papers from his person. I took no money from his person. I took no papers from his ranch. I took some old bed-clothes from his ranch. We had used what we had to cover him up. I did not know that Faucett had about his person or his ranch any notes or accounts. I do not know what became of his money nor papers that he had, if any. After he had shot himself, I picked up the dead body, and put it on the bed. I then picked the body up off the bed, and carried it out of the house into the cellar, and buried him in the side of the cellar." The body was left buried about three months, when the defendant uncovered it, and with an axe cut off the head, arms, and limbs, and, after a fruitless attempt to burn the remains, again buried the body. The witness then went on to say: "Faucett shot himself with my pistol. He shot himself in the back part of the head, back of the ear. I do not know whether it broke in the skull or not. The bullet did not go through Faucett's head. It lodged in his right eye. After Faucett shot himself, I picked up the bill of sale, and put it in the cupboard. I put the letter in my pocket, and afterwards gave it to Capt. Palmer. I went out to the ranch, and brought back the tool-box with me. I took what writing there was in the tool-box. There were a lot of papers in there. I did not notice what they were. I burned them up; burned them to get rid of them. I did not look to see what they were. I went to the ranch about seven o'clock. Cannot give any reason for waiting until after dark before I went out to the ranch. I did not bury the body until the next night after the shooting, and after I had been to the ranch. My wife did not help me bury the body, nor to cut the head and feet off. She did not assist me in doing anything with the body. I told my wife that I had taken the body off and buried it."

The appellants present several grounds of error, which they claim were committed by the court below.

1. On the trial of the case it is claimed that the prosecution offered in evidence two bills of sale, marked "Plaintiff's Exhibits A" and "B," and that the said exhibits were admitted in evidence, notwithstanding they were objected to by the defendants. After a careful examination of the transcript, we fail to find any exhibits. At page 101 of the transcript we find where the prosecution offers Exhibits A and B, but the contents of the papers are not set forth, and the question as to their admissibility cannot be considered by this court, because they are not embodied in the bill of exceptions, and we cannot go outside the record, and take from appellants' brief statements of what they say are copies of papers that were introduced as evidence on the trial of the cause below. State v. Baker, 8 Nev. 145; State v. Larkin, 11 Nev. 320; State v. Mills, 12 Nev. 405.

The record, however, contains enough testimony to show that the exhibits were offered in evidence for the purpose of showing by identification and comparison of the signatures, that the signature of "MILES FAUCETT" to the bill of sale, conveying his property and effects to the defendant Josiah Potts, was in the handwriting of Mrs. Potts. It was clearly admissible for...