State v. Scott

• Decision Date: 04 August 1914
• Docket Number: 2094.
• Parties: STATE v. SCOTT.
• Court: Nevada Supreme Court

142 P. 1053

37 Nev. 412

STATE v. SCOTT.

No. 2094.

Supreme Court of Nevada

August 4, 1914

Appeal from District Court, Humboldt County; Edward A. Ducker Judge.

Bert Scott was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Talbot C.J., dissenting.

J. M Frame, of Reno, for appellant.

George B. Thatcher, Atty. Gen., E. T. Patrick, Deputy Atty. Gen., and J. A. Callahan, Dist. Atty., of Winnemucca, for the State.

McCARRAN J.

The defendant was convicted of murder in the first degree and his penalty fixed by the jury at life imprisonment. The court refused to grant him a new trial; hence this appeal.

From the record on appeal it appears that the deceased, Ben Swago, was associated in business with one Fouts, in the town of Rochester; the business consisting of a saloon and restaurant in the same building. The defendant Scott, as appears from the transcript, was employed by Fouts to represent him and in a way to oversee the business in the interests of Fouts. On the evening of the 24th of February, 1913, the establishment was about to open, and on that occasion the bar was opened; the restaurant portion not having been completed. In the early part of the evening, the defendant, while in the kitchen at the rear of the barroom in a somewhat intoxicated condition, had urinated upon the floor. For this act he was accosted by the deceased. The defendant replied with angry and foul words, telling deceased, in effect, not to interfere with him or he would put him out of there; that he was the man that was making the money, whereupon the deceased struck the defendant several times. Bystanders intervened and stopped the fight and the two advanced to the front of the building, in which position the bar was located, and there, it appears, that a second altercation occurred, in which words were uttered, but no blows struck. At this time a woman by the name of Alice Miller, a prostitute with whom the deceased, Swago, had been consorting while in the town of Rochester, injected herself into the altercation between deceased and defendant, and after the second trouble, which occurred in the front of the saloon, Swago, the deceased, and the Miller woman left the saloon by the front door, passing out into the street. The record discloses that the defendant, after the second altercation, went behind the bar and took therefrom a revolver and walked out to the front door. At the front door, or thereabouts, the third altercation took place, in which the deceased was shot by the defendant.

The record in this case discloses evidence produced by the state, depicting the circumstances of three distinct altercations occurring in succession between the deceased and the defendant, in each of which the state's evidence undeniedly shows the deceased to have been the aggressor.

It is the contention of appellant that the verdict of murder in the first degree, entailing life imprisonment, is not supported by the evidence, as disclosed at the trial of this case. With this phase of the case we shall deal later.

At the trial of this case in the court below, the defendant interposed self-defense in justification of his act.

The evidence discloses an alleged dying declaration, made by the deceased, Swago, introduced by the state and in part reading:

"I am awful sick man and I might die before midnight. I don't see my way through. In Ollie's place I heard Scott say I show them how to run the joint. * * * When he told me that I couldn't stand it any longer so I hit him with my fist then he rushed for a gun, and I walked out, and I was going back in again Scott come out of the door with a gun in his hand. His hand and gun were both in his coat pocket. He had the gun in his right hand. I saw that I couldn't get away so I ran in and clinched with him. I threw my arms around him so that I could protect myself. He struck the barrel of the gun against my stomach and shot me. I think he shot me twice, but don't know. When he came out of the door with his hand on his gun he came towards me and I thought he was going to kill me. When Scott come out of the door he said something but I don't know what he said. I was too much excited. After I slapped him in the kitchen I did not strike or threaten him again. When he come out of the door with the gun I thought that couldn't put him out and had to clinch with him to protect myself."

The phase of the altercation, as touched upon briefly in the dying declaration, is, to some extent, borne out by the testimony of other witnesses. It appears from the testimony of Alice Miller that a second altercation took place at the bar in the front part of the building. She says in her testimony, in answer to interrogatories propounded by the prosecuting attorney (referring to Scott):

"Ben--excuse my language--I says, 'Ben, the son of a bitch is going for his gun,' and so Ben went right after him, and he caught a hold of him, I judge just within about four feet of the bar, and at the same time five or six fellows rushed up and grabbed Mr. Swago again, and pulled him away from Mr. Scott, and held him you might say in a vise."

Later in the same statement she said:

"Some one got a hold of Mr. Swago's arm, and I says, 'Come on then, let us get out of here quick,' and I went right out the front door, and Mr. Swago right after me, and he had gotten, I would judge, 18 feet away from the house, and I walked straight out, and walked off to the left, and I says, 'Ben, come on, let us make a run, for he is going to get you sure;' and he says, 'Just wait a minute.' And I stood there and looked back of the house, and it kind of looked to me like

he was studying, and I says: 'Don't stand there. Come on, let us go.' And just then Mr. Scott made a run right out of the door, and, as he stepped off the front porch, there was a sort of little step in front of the saloon, and as he stepped off of the porch, and he came out, with his hand in his right-hand overcoat pocket, with the gun in his hand, and I holloed to Ben again, 'There is a gun, look out!' And he ran to him, and he threw his left hand at Mr. Scott's right hand."

At another place in her testimony, referring to the altercation in the rear of the room, she said:

"And I grabbed a hold of Mr. Swago, and I stood there with my arm around him, and, as soon as Mr. Scott was released from these fellows that were holding him, he turned right around there, and he started right this way. Q. Scott did? A. Yes, sir; and at that time was when I told Mr. Swago to get him, that he was going for his gun, and I would judge about there, in fact almost in front of the door, is where Mr. Swago got him again, that is, got a hold of him, and he held him, and there were four or five fellows interfered again, and took Mr. Swago away from him, that was away from Mr. Scott, that is from fighting. Then I ran again into Mr. Swago right here, and I caught a hold of his right arm, and I says: 'Come on, Ben; let us get out of here. He is going to get you.' And at the same time Mr. Scott had already come behind the bar up to this end, and he was standing right there when I was asking Mr. Swago to leave the house. Q. State whether or not that is where the defendant was when you and Swago left the house? A. He was--he was standing right there with both hands underneath the bar."

Referring to the immediate incident of the shooting outside the door of the saloon, the witness Miller further states:

"I told him to 'look out, there was the gun again.' Q. Tell--tell then what the two men did. A. Then Mr. Swago rushed into him, and he took his right hand, that is with his left hand and grabbed for the gun--right for the gun, and the first shot went off immediately after they came together, and the next shot followed very shortly, and I saw Mr. Scott's hand come down the next time."

At another place she testified:

"Q. Now will you illustrate and give the position of the two men when the shot was fired? A. Yes, sir (indicating). Mr. Swago was standing like this with both of his hands in his pocket. Q. That was before he started towards Mr. Scott? A. Yes, sir. Q. Yes. A. Just standing sort of a loose attitude of this kind, and as Mr. Scott came out the door, and I holloed to Mr. Swago to 'look out, there was the gun,' Mr. Swago started to pull his hands out of his pockets, and started right towards Mr. Scott, and Mr. Scott had a gun in his hand. I don't think he stepped over two or three steps, and Mr. Swago threw his left hand up, up to Mr. Scott to get the gun, he come out with in his right hand. Q. Who did? A. Mr. Swago. He grabbed the gun, and then the shot went off, just as the first shot went off, and the second shot followed immediately afterwards."

On cross-examination, the witness, being interrogated as to the movements of herself and the deceased after they left the front door of the saloon, testified as follows:

"Q. Why did you and Swago separate when you got outside of the saloon in front of the saloon? A. Because I was trying to make him come around and get behind the saloon and get away, and he would not do it. He stood off right out from the saloon."

The witness Miller was the principal witness for the state, and her testimony, taken in connection with the dying declaration introduced in evidence, discloses three events happening in succession, in each one of which the deceased appears to have been the aggressor.

The plea of the defendant in this case being that of self-defense, the court gave several instructions bearing upon the law of self-defense in the abstract, and especial objection is raised by appellant herein to instruction No. 31, given by the court at the request of the state. It is as follows:

"You are instructed that it is not necessary for the state to prove

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