Thedford v. Sheriff, Clark County
| Decision Date | 02 November 1970 |
| Docket Number | No. 6272,6272 |
| Citation | 476 P.2d 25,86 Nev. 741 |
| Parties | Edna Lou THEDFORD, Appellant, v. SHERIFF, CLARK COUNTY, Nevada, Respondent. |
| Court | Nevada Supreme Court |
Heaton & Spizzirri and James D. Santini, Las Vegas, for appellant.
Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty. and Lorin D. Parraguirre, Deputy Dist. Atty., Las Vegas, for respondent.
After a preliminary examination the appellant was bound over to district court on an open charge of murder and on a charge of abortion. In her petition for a writ of habeas corpus the appellant contended that no reasonable or probable cause had been presented to support a belief that the offenses charged had been committed or that the appellant had committed them. The appellant further contended that the information as filed failed to give her adequate notice of the exact offense upon which she was being charged.
At the preliminary examination the following pertinent facts were presented: On October 29, 1969, the victim, Patricia Kohlman, was picked up at her home by Patricia Irene Eastley. They drove to the latter's home and arrived at approximately 5:20 p.m. At approximately 6:00 p.m., Patricia Ann Eastley, sister-in-law of Patricia Irene Eastley, arrived at the home of Patricia Irene. At some time between 6:30 p.m. and 7:00 p.m. the appellant, Edna Lou Thedford, arrived at the Eastley residence carrying a paper bag. Immediately thereafter, the appellant and the victim went into a bedroom of the residence. Neither Patricia Irene nor Patricia Ann saw the events which occurred in the bedroom. The appellant emerged one from the bedroom, made a phone call, and requested the use of a flashlight. After acquiring the flashlight she returned to the bedroom.
The appellant and decedent were alone in the bedroom for approximately ten to fifteen minutes. At the end of this time they left the bedroom and Patricia Kohlman requested Patricia Irene to drive the appellant to a location in North Las Vegas. As the appellant left the Eastley residence, she discarded in a trash container the paper bag she had carried into the bedroom.
Patricia Irene then drove the victim and the appellant to North Las Vegas, where the latter was let out and the two remaining occupants traveled toward the home of the victim.
As Patricia Irene and Patricia Kohlman were traveling from North Las Vegas to the latter's home, Mrs. Kohlman began to vomit and she was in an unconscious state when they arrived at her home. While Patricia Irene drove the appellant and victim to their respective homes, Patricia Ann, who had remained at her sister-in-law's home, examined the paper bag discarded by the appellant. In the bag she found a paper enclosure with the words 'knitting needle' thereon, and a sales slip for the item.
From Mrs. Kohlman's residence, Patricia Irene called Patricia Ann, who drove immediately to the Kohlman home. Upon her arrival, Patricia Ann, an x-ray technician, determined that the victim was unconscious but still alive, and while the police and an ambulance were being summoned she attempted mouth-to-mouth resuscitation. Patricia Ann then accompanied the victim to the hospital, and remained at the hospital until the victim died later that evening.
After the death of Patricia Kohlman, Patricia Ann returned to the home of Patricia Irene. In the bathroom she discovered a bottle of menthyl salicylate, commonly known as oil of wintergreen. Patricia Irene testified that she never kept this substance in her home.
At 10:00 a.m. on the following day, Dr. Thorne Jefferson Butler performed an autopsy upon the decedent, whom he had personally attended immediately prior to and at the time of her death. The autopsy revealed that the uterus of the victim was approximately 18 weeks pregnant and contained traces of menthyl salicylate as well as small puncture marks in the cervix. The doctor testified that menthyl salicylate was a substance foreign to the uterus and not normally present in it. He further testified that the puncture marks in the cervix were not normal in the pregnant uterus.
Dr. Butler stated that, in his opinion, the menthyl salicylate had entered the blood stream of the victim from the uterus causing pulmonary edema and death. (The lungs filled with blood and the victim literally drowned in her own blood.)
It is well established that a preliminary examination is not a trial. NRS 171.206; 1 Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86 (1969); State v. Holt, 47 Nev. 233, 219 P. 557 (1923); Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962). Its purpose is not to determine guilt or innocence but to determine whether or not there is probable cause to believe that an offense has been committed and that the defendant has committed it. Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969), and cases cited therein. Here there was introduced sufficient evidence of probable cause to justify the magistrate in binding the appellant over to the district court on an open murder charge and on a charge of abortion.
The appellant and the victim were alone for a period of time and shortly thereafter the victim died of a lethal dose of menthyl salicylate. See Miner v. Lamb, 86 Nev. 54, 464 P.2d 451 (1970). It was reasonable for the magistrate to infer from the evidence that the appellant purposely administered the lethal substance. It was also permissible for him to infer from the evidence that there was probable cause to believe that the menthyl salicylate was administered in a manner that would amount to murder.
The appellant claims that because there was no showing, by the state, at the preliminary examination, of malice expressed or implied, that the writ of habeas corpus should have been granted.
Malice as applied to murder does not necessarily import ill will toward the victim, but signifies general malignant recklessness of others' lives and safety or disregard of social duty. State v. Judge, 208 S.C. 497, 38 S.E.2d 715 (1946); Chisley v. State, 202 Md. 875, 95 A.2d 577 (1953).
It cannot be said from the facts adduced at the preliminary examination that malice was not shown, the presence of malice is a question of fact which bears directly on the guilt or innocence of a defendant and upon the degree of the crime charged. It is not a question to be determined by the magistrate at a preliminary examination--it is a question to be determined by...
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