State v. Smithson

• Decision Date: 06 March 1933
• Docket Number: 2999.
• Parties: STATE v. SMITHSON.
• Court: Nevada Supreme Court

19 P.2d 631

54 Nev. 417

STATE v. SMITHSON.

No. 2999.

Supreme Court of Nevada

March 6, 1933

Appeal from District Court, White Pine County; H. W. Edwards, Judge.

Bartley J. Smithson was convicted of murder, and he appeals.

Affirmed.

Chandler Quayle & Gill, of Ely, for appellant.

Gray Mashburn, Atty. Gen., W. T. Mathews, Deputy Atty. Gen., and V. H. Vargas, Dist. Atty., and Geo. P. Annand, Deputy Dist Atty., both of Ely, for the State.

COLEMAN Justice.

The defendant was convicted of the crime of murder. He has appealed from the judgment and the order denying him a new trial.

The facts, briefly stated, are these: The defendant, who was the owner of the Palace Club, about 4:30 in the morning of January 10, 1932, with others, was engaged in target practice with a pistol, within the club. H. D. Long, known by defendant to be a peace officer, learning of the incident went into the place and inquired of the defendant what was going on. He demanded the pistol used, admonished defendant, and started out. On the way to the door he ejected the blank cartridges from the gun. As he was opening the door to go out, the defendant inquired of him when he would get the gun back. To the inquiry of the defendant, Long made reply, turned around, and approached the south end of the bar, defendant being near the other end of it. Long, with a pistol in his hand, advanced behind the bar, toward the defendant, who reached up, grabbed a rifle, and shot Long through the heart, causing instant death. The testimony is conflicting as to what was said by defendant and Long as the latter advanced toward defendant.

It is the theory of the state that Long intended to arrest the defendant. The defendant contends that he shot in self-defense--that Long threatened to break the gun (which it is admitted he held in his hand) over defendant's head. The defendant also contends that Long had no legal authority to arrest him; there being no warrant therefor.

We will not consider the points made in the order presented, believing that by taking them up in the following order we may be able to epitomize to some extent.

It is strongly insisted that the trial court erred in refusing to give the following requested instruction:

"Under the law of this state a peace officer is authorized to make an arrest on a misdemeanor charge only when the misdemeanor is committed in his presence. The discharging of firearms, as testified in this case, amounts only to a misdemeanor under the law. There is no evidence in this case before you that defendant Smithson engaged in target practice or discharged firearms in the presence of peace officer Long. Long, therefore, had no authority to arrest Smithson for discharging firearms within the city limits of Ely without a warrant and there is no evidence in this case that at the time he entered the Palace building he had such a warrant.

I therefore charge you that in case you find that officer Long, at any time while he was in the Palace building, attempted to arrest defendant Smithson such action in so attempting to arrest Smithson was unlawful and Smithson had the right to resist such unlawful attempt, if you find such attempt was made by Long, to the extent of using such force as was necessary so to do."

One vice of this requested instruction is that it tells the jury that there is no evidence that defendant engaged in the target practice in the presence of officer Long.

It was for the jury to determine from the evidence whether there was such shooting in the presence of the officer.

The uncontradicted testimony of witness Olsen is that he heard the shooting, three shots, and that he was on the street a little over a half a block from the Palace Club at the time; that Long was on the opposite side of the street from him at the time of the first shot.

Mr. Lewis, one of the witnesses for the defense, testified, inter alia, that Long went into the Palace Club on the occasion in question, quoting:

"A. He come in and he says, 'What's all of this racket about?' He told Mr. Smithson that he didn't want to hear any more racket like that and took a gun away from Mr. Smithson.

Q. Or he would take the gun away from him? A. No, he did take the gun away from him.

Q. Did he take it out of Smithson's hand--defendant's hand, or did he ask Smithson to give it to him? A. He said 'give him the gun.'

Q. Did Smithson give him the gun? A. Yes, sir."

With a slight variation of the phraseology, all witnesses testified to substantially the same thing.

From this testimony the jury had a "right to infer," to use the language of the Supreme Court of Missouri in State v. Grant, 76 Mo. 236, that Long not only heard the first of the three shots Olsen testified to hearing, but that he heard the two other shots while walking the half block from where he stood when he heard the first one to the Palace Club. The testimony shows that when he walked into the Palace defendant was out on the floor with the gun in his hand.

From this testimony the jury had the right to find that Long walked into the Palace Club while the defendant was flagrante delicto.

We have found many cases in which the courts have held that a crime was committed in the presence of the officer where the facts were nothing like as satisfactory as in the instant case. In Dilger v. Com., 88 Ky. 550, 11 S.W. 651, where the evidence showed that two policemen who heard the cries of a woman in an upstairs room, but saw nothing, undertook to arrest her paramour, who, in resisting, killed the two policemen. The court said: "Unquestionably they had a right to make the arrest. While the offense of beating the woman was not committed in their sight, yet it was within their hearing, and when they were so near that they could not be mistaken as to the offender. This was within their presence, as contemplated by the law. Moreover, the instructions given to the jury told them that the offense for which the arrest was attempted must have been committed in the presence of the officers."

In Ingle v. Com., 204 Ky. 518, 264 S.W. 1088, 1090, the court said: "We have held in a number of cases, and it appears to be the law everywhere, that an offense, in order to be committed in the presence of the officer, need not occur immediately within his vision, but that if he receives the information of the commission of the offense through any of his senses, the most frequent of which is that of hearing uncommon and suspicious noises which he can readily locate, he is authorized to follow it up, and if it turns out that the offense was actually committed, it will be considered as having been committed in his presence for the purpose of authorizing him to arrest the offender without a warrant although the crime was only a misdemeanor. ***"

In State v. McAfee, 107 N.C. 812, 12 S.E. 435, 437, 10 L. R. A. 607, the court held that, where the officer heard the striking with a stick of a wife by her husband, though he did not see the act because of darkness, the offense was in his presence, saying: "The principal evil intended to be avoided by restricting the right to arrest to breaches of the peace committed in the officer's presence was depriving a person of his liberty except upon warrant issued on sworn information, or upon the actual personal knowledge of the officer that the offense was committed. The reason of the law is as fully met, therefore, if the officer heard enough to satisfy him that the law was violated, as if he had acquired the information through his sense of sight."

In Ramsey v. State, 92 Ga. 53, 17 S.E. 613, 615, the Supreme Court of Georgia quoted approvingly as follows: "It is a general principle that an offense is considered to be committed 'in the view' or 'in the presence' of an officer where any of his senses afford him knowledge that an offense is being committed. Therefore, an officer on the street, who hears the noise of an assault or an affray in a house, is justified in entering and making an arrest for a breach of the peace, although all is quiet when he enters the room whence the sounds proceeded. In such a case the breach of peace occurs 'in the presence' of the officer, within the meaning of the law."

The Supreme Court of Wisconsin, in Hawkins v. Lutton, 95 Wis. 492, 70 N.W. 483, 485, 60 Am. St. Rep. 131, in commenting upon a case in which an arrest was made as the result of the noise heard, said: "The evidence tends to show that the alleged violation of the ordinance may fairly be said to have been committed in the presence of the defendants. They had heard the disturbance and disorderly conduct from the outside of the house, and the evidence tends to show that they had been summoned there, or their attention had been attracted to it. The chief of police arrived in time to become aware of the conduct in progress within, and, acting in apparent good faith, and on what appeared to be reasonable ground, ordered the house to be 'pulled.' The policemen at once entered the house, and found the plaintiff an inmate and abiding therein. The evidence tends to show that she was its proprietor. The authority of conservators of the public peace to make arrests in such cases should be liberally construed and upheld, but always at the risk that they will be liable if it be misused or abused. People v. Bartz, 53 Mich. 493, 19 N.W. 161; Ballard v. State, 43 Ohio St. 340, 1 N.E. 76; O'Connor v. Bucklin, 59 N.H. 589; State v. Russell, Houst. Cr. Cas. [Del.] 122."

The rule is laid down in Corpus Juris as follows: "An offense is likewise deemed committed in the presence of the officer when he hears the disturbance...