State v. Skaug

• Decision Date: 05 September 1945
• Docket Number: 3429.
• Parties: STATE v. SKAugust
• Court: Nevada Supreme Court

161 P.2d 708

63 Nev. 59

STATE v. SKAugust

No. 3429.

Supreme Court of Nevada

September 5, 1945

Rehearing Denied Nov. 15, 1945.

See 163 P.2d 130.

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

Paul Maynard Skaug, alias Paul Masterson, was convicted of murder in the first degree and sentenced to death, and he appeals.

Judgment affirmed with directions.

Martin J. Scanlan, of Reno, for appellant.

Alan Bible, Atty. Gen., George P. Annand and Homer Mooney, Deputy Attys. Gen., and Melvin E. Jepson, Dist. Atty., of Reno, for respondent.

DUCKER Justice.

Appellant was informed against and tried in the second judicial district court of Washoe County for the murder of one Beate Voss. The jury returned a verdict as follows: 'We, the jury in the above entitled action do find the defendant guilty of murder of the first degree.' On this verdict the court pronounced judgment of death, from which this appeal is taken.

While there is no contention that the verdict is not supported by the evidence, we deem it advisable to set out substantially the material facts. On the night of the 16th of September 1944, Mrs. Beate Voss, an elderly lady who had returned to her home in Reno alone around the hour of 10:30, was shot and killed by an intruder who was burglarizing the place. The body was discovered the next morning by a neighbor's maid who had noticed that a screen had been removed from one of the windows. In addition to the bullet wound in the body there were three lacerations on the scalp, and abrasions on the back of the right hand and fingers. The tendons of the fingers were damaged. In the house was found a steel pinch or claw bar. There were blood stains on the bar and also some gray hairs of the same type and color of the hair on the victim's head. A number of articles were stolen from the house, including a .32 caliber Smith and Wesson revolver, a box of .32 caliber cartridges, a fountain pen and a gold band ring.

Appellant was in Reno on the 15th of September and registered at a hotel under the name of 'Paul Masterson, Plymouth Wis.,' and again on September 16th. He occupied the room on both occasions and relinquished it on the early morning of the 17th. On September 30, 1944, appellant was picked up on the highway near Marysville, California, by Talmadge Norwood a scout captain of the California highway patrol, questioned about his draft registration and taken to the Marysville Police Station in the City of Marysville. There a .32 caliber Smith and Wesson revolver was taken from appellant's person. This was the weapon which was stolen from the house and with which the woman was slain. Also, at that time, was found in a suitcase he had been carrying, among other articles, the box of .32 caliber cartridges, the fountain pen and the gold band ring, stolen from the Voss home on the night of the killing. On the night of September 30th at the Marysville Police Department in the presence of the chief of police of Reno and other officials, including the patrol officer who effected the arrest, appellant made a confession which was reduced to writing and signed by him. He admitted the shooting of Mrs. Voss, who had come into the house while he was prosecuting the burglary; shooting her with the revolver he had found there, and striking her over the head with it. In the confession he told how, after the shooting, he had made his way south to Los Angeles and thence north through California to a place where he was apprehended. Moreover, under specific questions asked by the chief of police, he admitted the commission of a robbery on the way from Los Angeles, a burglary in Elko before coming to Reno, and two burglaries in Reno besides the one during which the shooting occurred. The confession was read to the jury and as to the recital of each of these independent felonies, counsel for appellant objected on the ground that the evidence was immaterial and incompetent. The objections were overruled and the confession admitted in evidence in its entirety.

Before the written confession was introduced in evidence, Talmadge Norwood, the patrol officer who apprehended appellant, and who was present when he made the confession, testified in behalf of the state over objections, to hearing him admit the burglaries and robbery stated in the confession. The court afterwards ordered such evidence stricken and instructed the jury to disregard it.

Richard Heap, Superintendent of the Bureau of Identification of Reno Police, a witness for the state, testified to being present in the office of the chief of police in Reno and hearing appellant at the request of the district attorney, make a statement in which he admitted a burglary in Elko, a couple of burglaries in Reno besides the one in which Mrs. Voss was killed, and a robbery in Fresno, California. In this statement he said when the lady came into the room and snapped on the light and saw him, she commenced to scream and 'holler' and that he struck her with the gun to silence her, and the gun went off. Objections were taken to the admission of the other offenses except the burglary in Elko and the one in which the killing occurred.

The first three assignments are levelled at the rulings allowing in evidence admissions of other offenses, except the one in which the killing occurred. We think the assignments are well founded. There was no connection whatever between any of them and the crime charged. It is well settled that evidence that accused has committed another crime independent of and unconnected with the one for which he is on trial, is inadmissible. The rule has well established exceptions and both have received the attention of this court in a number of cases. State v. McMahon, 17 Nev. 365, 30 P. 1000; State v. Vaughan, 22 Nev. 285, 39 P. 733; State v. Roberts, 28 Nev. 350, 82 P. 100; State v. McFarlin, 41 Nev. 486, 172 P. 371; State v. Monahan, 50 Nev. 27, 249 P. 566; State v. Hall, 54 Nev. 213, 13 P.2d 624; State v. Behiter, 55 Nev. 236, 29 P.2d 1000.

The state, in the answering brief, admits that if witnesses had been brought to testify to the commission of such other crimes, their testimony would have been objectionable. This is an admission that there is no connection between the other crimes and the crime charged. However, it is insisted by the state that where, as here, the appellant makes the admissions in a confession to witnesses, the entire conversation is admissible. This is not the rule if the part relating to such other offenses is separable. If so, it must be excluded. People v. Loomis, 178 N.Y. 400, 70 N.E. 919; State v. Wolff, 337 Mo. 1007, 87 S.W.2d 436; Stagemeyer v. State, 133 Neb. 9, 273 N.W. 824; People v. Spencer, 264 Ill. 124, 106 N.E. 219; State v. Lord et al., 42 N.M. 638, 84 P.2d 80; Rounds v. State, 171 Tenn. 511, 106 S.W.2d 212; Robinson et al. v. United States, 61 App.D.C. 370, 63 F.2d 147; 22 C.J.S. Criminal Law, § 820, pages 1440, 1441; Underhill's Criminal Evidence, 4th ed. Sec. 265, p. 513.

In People v. Spencer, supra, the court said [264 Ill. 124, 106 N.E. 225]:

'While the fact that such statement (confession) may include another offense as well as that charged does not prevent the confession being received and going to the jury with proper instructions when there can be no separation of the relevant from the irrelevant parts, when the relevant parts can be separated from the irrelevant, this must be done, and that part, only, of the confession admitted which is material to the issues on trial.' (Citing authorities.)

In Rounds v. State, supra, the court said [171 Tenn. 511, 106 S.W.2d 214]:

'Where a confession indicates that the accused has been guilty of another offense in addition to that for which he is being tried, that part of the confession relating to the distinct offense is inadmissible if it can be separated from the portion of the confession relating to the charge in issue.'

In the case before us it appears that the other offenses were clearly separable. None tends in the slightest degree to prove the other or the offense charged. There is no nexus between any of them. They could have been and should have been excluded from the consideration of the jury. As said in People v. Loomis, supra [178 N.Y. 400, 70 N.E. 921]: 'A simple statement from the district attorney that he desired only that portion of the conversation which related to the crimes charged, would have eliminated everything else without the slightest injury to his case.'

The admission of the other offenses testified to by the witness Heap should also have been excluded. They were clearly separable from the confession. The testimony of the patrol officer as to the other offense should not have been permitted in the first instance. The promise of the district attorney to connect them up was obviously incapable of fulfillment. True, the court struck them out and instructed the jury to disregard them, but the district attorney's offer of proving a connection enabled him to get the other offenses before the jury by the process of infiltration, so to speak.

But in view of our statute and the nature and conclusiveness of the evidence, it does not follow that allowing the jury to consider the other offenses constituted reversible error. The evidence presents a case that calls loudly for the extreme penalty.

An aged lady after spending a pleasant social evening with a neighbor, on returning to the shelter of her home alone in the late hours of the night, was set upon by a cold blooded villain and slain under circumstances of revolting atrocity. Besides the death wound inflicted with her husband's revolver, she was brutalized by clubbing, her valuables were stolen, and her body left broken and bleeding upon the floor of the ruined...