State v. Sella

• Citation: 168 P. 278,41 Nev. 113
• Decision Date: 02 November 1917
• Docket Number: 2225.
• Parties: STATE v. SELLA.
• Court: Supreme Court of Nevada

168 P. 278

41 Nev. 113

STATE v. SELLA.

No. 2225.

Supreme Court of Nevada

November 2, 1917

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

Adolfo Sella was convicted of murder in the second degree, and he appeals. Reversed.

J. A Langwith, of Winnemucca, and Frame & Browne, of Reno, for appellant.

Geo. B Thatcher, Atty. Gen., Edw. T. Patrick and Wm. McKnight Deputy Attys. Gen., and Thos. E. Powell, Dist. Atty., and J. A. Callahan, Asst. Dist. Atty., both of Winnemucca, for the State.

McCARRAN C.J.

The appellant was convicted in the district court of Humboldt county of murder in the second degree. The charge grew out of the killing of one Marcel Edmund Ramella in a saloon in the town of Winnemucca in that county. The killing was by shooting with a pistol. The record discloses that both the appellant and deceased had been drinking during the day and up to the time of the incident out of which deceased lost his life. It appears that prior to the day on which the shooting occurred, and indeed almost up to the time at which the fatal shot was fired, appellant and the deceased were friends. It is disclosed from the record that the deceased took dinner at the Roman Tavern some time about 11:30 a. m. on the day on which he lost his life. After dinner appellant and the deceased became engaged in a scuffle or wrestle in the bar room immediately adjoining the dining room. Both men were seen grappling upon the floor of the bar room. Appellant, after disengaging himself from the deceased, went behind the bar, and there followed some considerable discussion relative to the merits of the respective parties in the wrestling game, an offer being made by appellant to wrestle the deceased for $100 at a public place. There is testimony in the record of violent, threatening utterances having been made by deceased toward appellant immediately following the discussion relative to the wrestling bout. The deceased had left the bar room in which appellant was tending bar and was standing on the outside somewhere close to the edge of the sidewalk in front of the door. Appellant, having armed himself with a revolver, went out through the front door, and it is there that he contends and testifies that the deceased came toward him in a threatening manner, holding his hands, or at least one of his hands, somewhat behind him, and said, "Here is where you get your last."

The plea of self-defense was interposed. In the statement of counsel for appellant made to the jury when the prosecution had closed its case in chief, he declared to the jury that the defense would attempt to prove:

"That he [the deceased] was making an effort to strike the defendant with a knife, and that the defendant, for the purpose of protecting himself, drew the pistol which has been offered in evidence, and in that struggle *** we will show that there was a struggle which was commenced by the deceased, the deceased trying to use a knife and at the same time grappling with the defendant; and in that struggle the defendant attempted to protect himself from the onslaught of the deceased and received this shot from the pistol which he held in his hand. The testimony will show that the hand in which the pistol was held was being grappled by the deceased. *** We shall attempt to show you that the killing of the deceased was under such circumstances as made the acts of the defendant justifiable under all circumstances of the case."

The appellant having taken the stand in his own behalf, and after having related at length the incidents immediately preceding the shooting, stated:

"I walked out the door. Say this is the

door and there is a little space before you get out on the sidewalk. The first step on the sidewalk I turned myself to the right where he was standing, and he says, 'Now, here you are,' and he came in a rush, walking pretty fast. He was some four or five or maybe six steps away from me, and I says, 'Edmund, why not come in and have a drink together and call this all off?' And he came all at once and said, 'Here is where you get your last,' and I thought for sure he had a knife, and at the same time I drew my body back this way and he ran into my body, but didn't have a chance to strike me very hard; and I put my arm up somewhere around his body and at the same time I pulled out the gun and says, 'Ramella, look out,' and at the same time pulled out the gun. The gun was pointed toward the ground, and with his left hand he held and grabbed my right hand and my right hand made this kind of a motion [up] and the shot went off. Q. Did you believe yourself to be in danger at the time you drew this pistol? A. Yes, sir; because he came towards me, and his actions, and at the same time he said, 'Here is where you get your last."'

The defendant in his case in chief was permitted to introduce evidence tending to establish that the reputation of the deceased was that of a violent and dangerous man, or at least that when intoxicated his reputation for peace and quiet was bad in the community in which he lived. This evidence was permitted to be introduced before the defendant had taken the stand in his own behalf or had attempted to establish the element of self-defense. It went before the jury without objection.

The state in rebuttal produced a number of witnesses to testify to the good reputation borne by the deceased in his lifetime in the community in which he resided, and it is with reference to the cross-examination of these witnesses that one of the principal errors assigned to the trial court is brought here for review.

The state's witness, F. M. Buckingham, after having testified to his being acquainted with the deceased during his lifetime, and to his having known him for a period of approximately three years spent in Paradise Valley, Humboldt county, was asked the general question in direct examination:

"Are you acquainted with his [deceased's] reputation in that community for peace and quiet? A. Yes, sir. Q. Do you know whether that was good or bad? A. I consider it good. Q. He bore a good reputation for peace and quiet in that community, did he? A. Yes, sir. Q. Did he or did he not have a bad reputation in that community for peace and quiet while drinking? A. Well, that I couldn't say."

This last question was strenuously objected to by counsel for the defendant, and upon the court overruling the objection the witness made the further answer:

"Why, I don't know as I could say what his reputation was when he was drinking because I never saw him in that state or condition. Q. (by the prosecuting attorney). Do you know anything against his reputation? A. No, I do not. Q. Are you acquainted with what the people of the community say of him? A. Generally so."

On cross-examination, counsel for the defendant propounded the following questions:

"Q. Do you know Johnnie Forgnone? A. Yes, sir. Q. Do you remember about the deceased assaulting him?"

This question was objected to by the prosecuting attorney "as not proper cross-examination," and the objection was sustained by the court for that reason. The exception was taken by counsel for the defendant "upon the ground that the same is proper cross-examination for the purpose of testing the knowledge of this witness as to the general reputation of the deceased." Counsel for defendant then made the following offer:

"Defendant now at this time by the cross-examination of this witness offers to show that the witness had heard of deceased making an assault upon Johnnie Forgnone, and that Andrew Mosci took a knife away from the deceased and ended the difficulties; and we offer to show that this witness has heard of numerous difficulties in which the deceased was engaged while intoxicated and in which he committed assaults upon other people."

The offer being denied by the court, counsel for defendant reserved an exception "upon the ground that the same is proper examination for the purpose of testing the knowledge of this witness as to the general reputation of the deceased."

The witness Steve Ferraro, being called by the prosecution in rebuttal, was asked the question:

"Q. Did you know what his [deceased] reputation was in that community for peace and quiet during the time he lived there? A. Yes, sir. Q. You know, do you? A. Yes, sir. Q. What was his reputation for peace and quietness? A. Quiet. Q. Was it good or bad? A. Good. Q. Did he have a reputation in that community for being quarrelsome and dangerous when intoxicated? A. I have seen him- Q. Can you say whether he had or had not such a reputation? A. No, sir. Q. Well, was his reputation there that he was dangerous when drinking? A. No, sir."

On cross-examination, the following question was propounded:

"Did you hear the circumstances of his [deceased] having a fight with Johnnie Forgnone?"

Objection to this question on the ground that it was not proper cross-examination was sustained by the trial court, and an exception reserved by the defendant on the ground that the same was proper cross-examination to test the knowledge of the witness as to general reputation. The witness was further interrogated on cross-examination:

"Q. I will ask you to state if you have heard of the circumstances, having a fight with Mr. Achrato."

Objection to this question was sustained on the ground that it was not proper cross-examination, and an exception to the ruling was reserved by the defendant "for the reason that the same is proper cross-examination for the purpose of showing the extent of the knowledge of the witness as to the general reputation of the deceased."

The further question was propounded on cross-examination:

"Q. I will ask you also if you have heard of the circumstances of the constable of Paradise requesting Mr. Recanzone to keep this

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