State v. Tecope

• Decision Date: 01 November 1932
• Docket Number: 2973.
• Citation: 15 P.2d 677,54 Nev. 308
• Parties: STATE v. TECOPE.
• Court: Nevada Supreme Court

15 P.2d 677

54 Nev. 308

STATE v. TECOPE.

No. 2973.

Supreme Court of Nevada

November 1, 1932

Appeal from District Court, Clark County; Wm. E. Orr, Judge.

Steve Tecope was convicted of first degree murder, and he appeals.

Affirmed.

Noland & Noland, of Las Vegas, for appellant.

Gray Mashburn, Atty. Gen., W. T. Mathews, Deputy Atty. Gen., and Harley Harmon, Dist. Atty., of Las Vegas, for the State.

DUCKER J.

Appellant was convicted of murder of the first degree in the Eighth judicial district court in and for Clark county. The jury fixed his punishment at imprisonment for life. He was sentenced accordingly. From the judgment and from the order denying his motion for a new trial he has prosecuted this appeal.

The crime for which appellant was convicted was alleged to have been committed by shooting one Fred Haganuma on the 27th day of July, 1931. The shooting occurred at the place where the latter resided near the little town of Searchlight in the southern part of Clark county, in this state. The deceased was a Japanese. The accused is an Indian. Shortly after the shooting, Haganuma was taken to Searchlight and placed under the care of a physician. He died at that place on July 30 1931. The attending physician testified that the cause of his death was septic pneumonia induced by a gunshot wound in the chest.

Appellant contends that the evidence is insufficient to support the verdict and judgment. The circumstances surrounding the shooting as proved by the state are not abundant. Only one witness, a Japanese named K. Ishibe, was produced by the state to establish appellant's connection with the shooting. He testified through an interpreter in substance as follows: "I knew Fred Haganuma during his life time, in Clark county Nevada, about the 27th of July, 1931. I knew Steve Tecope the defendant on the 27th of July, 1931. I knew where Fred was about seven o'clock on the evening of July 27th 1931. He was at the house below Searchlight, Nevada. Mrs. Haganuma and Tommykawa were present at that time. I was there too. At the time Fred Haganuma and I were sitting down at the table eating supper. I saw Tecope, the defendant, at that time. When I first saw Steve Tecope he entered in the gate. The truck was there. There was just a three foot opening at that place. Steve came in with a gun. When I first saw Steve Tecope he was just bending down. He had a gun in his hand. When I saw the gun Haganuma was talking with me. One minute after I saw Steve Tecope with the gun the shot was fired. When the shot was fired Fred Haganuma was sitting down. After the shot was fired the defendant just went home. Haganuma had no gun or firearms in his hand at the time. Nothing was said by the defendant Tecope or Haganuma before the shot was fired. Just one shot was fired. The defendant had a gun in his hand when the shot was fired. After the shot was fired Fred Haganuma put his hand in his chest and rolled down on the ground."

On cross-examination the witness testified: "When I first saw Tecope he was coming through a little narrow gate about twenty feet from the table I mentioned. That gate was the entrance to the shade made of brush. That entrance was about ten feet wide. The truck was in the entrance which left about a three foot opening at that time. The truck was in the driveway. When I first saw Tecope he was bending over like this (indicating a crouching position). I don't know exactly how big that shade was we were sitting under. I think it was about twenty or thirty feet. The driveway where the truck was is about ten feet wide. Across the driveway to the west there is a shed about fifty feet wide. Just west of this is the kitchen house. Just at the west side of the kitchen are some more houses. The truck was in the drive way in the entrance to the shade. The front side of the truck was in a straight line with the table. I have told the court here all the conversation that took place that night. The other Japanese people there that night were Tommykawa, Mrs. Haganuma and I. I know this man Tommykawa. He was working for Haganuma. He is in Texas now. I received a letter from him. Mrs. Haganuma is in Pasadena, California. I am sure she hasn't gone to Texas too. Tommykawa was giving the hay to the horses that night. I could not see Tommykawa from where I was sitting."

Ishibe was the only witness on the part of the state to testify as to what occurred at the time of the shooting. There was no other testimony tending to connect the appellant with the shooting. The appellant did not testify, and produced but one witness, a physician who testified that a wound such as the deceased received could cause death but was not necessarily fatal. This witness testified also that in his opinion it was not possible without a slide examination, and merely from the pulse, respiration, and temperature, to tell whether or not a case of pneumonia is septic or otherwise, but that, if a doctor, a graduate of a medical school, testified that he had in his charge for over a period of three days an individual who had received such a wound and had died from septic pneumonia caused by the wound, that could be possible.

We think the testimony on the part of the state is sufficient to sustain the verdict. It is true, no previous relations between appellant and deceased were established, and nothing adduced to show motive on the part of the accused. But motive is not essential to a conviction. People v. Durrant, 116 Cal. 179, 48 P. 75.

The reason is well stated in People v. Tom Woo, 181 Cal. 315, 184 P. 389, 394. The court said: "Appellants contend that the evidence is insufficient, particularly because of the absence of proof of motive. It is true the prosecution did not offer such proof. But, as has been declared in many cases, it is not necessary to establish a motive for the perpetration of an offense. A presumption of innocence arises in favor of a person accused of crime. This presumption is disputable, and may be overcome by other evidence. The presence of a motive is evidence tending to prove guilt, for the reason that its tendency is to rebut the presumption of innocence. But the presence or absence of motive is essentially a question of fact, and, like any other fact, is not necessary to be proved, if the crime can otherwise be established by sufficient competent evidence. So, in this case, the absence of proof of motive is a fact to be reckoned on the side of innocence; but, if the proof of guilt is nevertheless sufficient to overthrow the presumption of innocence, the appellants must stand convicted, notwithstanding no motive has been shown."

Appellant in the case before us stresses as a fatal weakness in the evidence the fact that Ishibe did not testify that he saw the appellant fire the shot; and that the district attorney did not ask him to do this. It is contended therefore that the evidence discloses nothing more than a mere opportunity on the part of appellant to commit the crime, which is not sufficient. We, of course, cannot tell why the witness did not so testify or why the district attorney did not question him in this respect. However, it may be that the witness did not actually see the shot fired and that the district attorney was aware of this fact. But, be...