State v. Williams

• Decision Date: 05 July 1927
• Docket Number: 2753.
• Citation: 257 P. 619,50 Nev. 271
• Parties: STATE v. WILLIAMS.
• Court: Nevada Supreme Court

257 P. 619

50 Nev. 271

STATE v. WILLIAMS.

No. 2753.

Supreme Court of Nevada

July 5, 1927

Appeal from District Court, Washoe County; Geo. A. Bartlett, Judge.

W. F Williams was convicted of murder in the first degree, and he appeals. Affirmed.

Roberts Scanlan & Ingram, of Reno, for appellant.

M. A Diskin, Atty. Gen., Wm. Forman, Deputy Atty. Gen., L. D Summerfield, Dist. Atty., and Harlan L. Heward, Deputy Dist. Atty., both of Reno, for the State.

SANDERS C.J.

The defendant, W. F. Williams, was convicted of murder of the first degree for shooting one H. D. Kelly to death with an automatic Colt revolver, and was sentenced to confinement in the penitentiary for the term of his natural life. The defendant appeals from an order denying his motion for a new trial and from the judgment.

So far as necessary to a proper understanding of the numerous assignments of error relied upon for the reversal of the case, the following summary of the evidence will be sufficient.

At the time of the killing both the defendant and the deceased were employed as barbers, the defendant in the barber shop of H. F. Hartung, on North Virginia street, and the deceased in the Vanity Shop, on First street, in the city of Reno. The homicide occurred between the hours of 1 and 2 o'clock on the morning of the 19th day of April, 1926, in Hartung's barber shop. There were no eyewitnesses, and nothing was known of the killing until the defendant telephoned to his employer at his residence, stating, "You had better come down, they are robbing the safe." The defendant also telephoned J. M. Kirkley, chief of police, at his residence, whereupon Kirkley telephoned Police Officer Wilkinson to go to Hartung's barber shop. When Hartung arrived, he recognized the dead body lying on the floor as being that of Kelly. Eight shots had been fired from the defendant's revolver, two of which went wild and six of which struck the deceased, causing fourteen wounds. The defendant admitted the killing, but made no statement as to the cause until he had been taken to the police station, where he was questioned by Chief of Police Kirkley as to how it occurred. The defendant stated to Kirkley that he had occasion to go to the barber shop, and when he went inside he heard water running, and just as he turned on the light he saw a man standing at the safe; that he pulled his gun and asked him what he was doing. The man made no reply, and he asked him the second time and getting no answer he shot.

At about the hour of 10:30 on the morning of the homicide the defendant was taken from his cell and confronted with the chief of police, the sheriff, and the district attorney, and was asked by the sheriff for a statement as to how the killing occurred. The defendant stated, in substance, that he and the deceased had met at about 8 or 9 o'clock in the evening in Douglas alley; that they went down the alley and bought a bottle, had a drink apiece, and Kelly discovered that he had lost his barber case; that a third party informed him where the case was; and that either he or the deceased gave the party four bits to go and get the barber case. After that Kelly said that he wanted to get shaved and asked him, "Do you think you are too drunk to shave me?" and he replied, "No; I am not. Come on, we will go down in the barber shop, and I will shave you." He stated that he shaved him, and while cleaning up he noticed Kelly taking a pair of clippers off the stand and putting them in his barber case. He asked him what he was doing, and Kelly replied that he was going to take the clippers. He told him he could not do that and Kelly said, "Why can't I? What the hell is it to you whether I do it or not?" Kelly then walked over to the safe and said that he was going to open the safe, and he told him that he could not do that, that he was in charge of the barber shop and was responsible, and that he could not open the safe. Kelly then stepped over in the direction of the safe and he ordered him to stop. He ordered him again to stop, and when he ordered him the third time he shot him three or four times, and then telephoned to Hartung and to the chief.

After the homicide occurred the furnishings in the barber shop were rearranged and the safe removed. Afterward, at the request of the district attorney, H. F. Hartung reconstructed the scene in the shop by placing objects therein to represent the pool of blood, the body of the deceased, the barber case, and the safe as they appeared at the time of the homicide. Three photographs were taken of the reconstructed scene, and upon the trial Hartung and other witnesses for the state were permitted to testify from them.

Upon the trial the defendant gave substantially this account of the killing:

That he had known the deceased about six months, but not intimately; that they were together from 8 or 9 o'clock until the killing occurred; that during the evening the deceased asked him if he was too drunk to shave him, as he wanted to be shaved, but was drunk and would be too nervous to shave himself before going to work at 8 o'clock the next morning; that when they entered the shop Kelly fastened the door and spent a few moments in looking around the shop, all the time talking in a friendly way. Kelly took a bottle from his barber case, and they each had a drink; that he went to his workstand and unlocked the drawer that held his tools and a gun and shaved the deceased, who appeared to be restless and nervous. When he had finished shaving him, Kelly conversed about matters concerning the business of the shop and stated that he was in need of tools and walked across the room to Mr. Hartung's barber chair and took a pair of clippers off the stand and said he was an expert safe cracker, then he took the clippers in his left hand and bent over the safe and turned the tumblers; that he told him to stop and not to do anything like that, that he was responsible for everything in the stop and to put the clippers back and get away and remonstrated with the deceased and protested against the opening of the safe; that Kelly used very offensive, insulting, and threatening words and said, "I will silence you, and then I can do as I please." During the affray, the deceased grappled with him for the gun. He said, "I was scared, for I thought he meant business, as I knew that he was an addict and an exconvict, and all that, that scared me all the more." He said he fired one shot to attract attention, and fired the second shot as they ran around the room; that Kelly grabbed the headrest off Hartung's barber chair and said, "I will cave your damn head in;" that he then pointed the gun toward Kelly and told him to stop, then becoming desperate he shot, he did not know how many times, and did not realize what had happened until he saw the body of the deceased lying head forward near Hartung's chair, about 6 or 7 feet from the safe; that he did not touch the body of the deceased, but called Mr. Hartung and the chief of police.

Upon the conclusion of the evidence, the jury were fully instructed upon the law of murder, the degrees of murder, self-defense, and justifiable homicide.

We shall review the assignments of error in the order of the argument:

First that the court erred in limiting and restricting the examination of William V. Lane and Joe El Cano and other veniremen on voir dire, with respect to determining whether or not the veniremen had such conscientious opinions as would preclude them from inflicting the death...