White v. State

• Citation: 285 P. 503,52 Nev. 235
• Decision Date: 05 March 1930
• Docket Number: 2857.
• Parties: WHITE v. STATE. [a1]
• Court: Nevada Supreme Court

285 P. 503

52 Nev. 235

WHITE v. STATE. ^[a1]

No. 2857.

Supreme Court of Nevada

March 5, 1930

Appeal from District Court, Elko County; Hon. L. O. Hawkins, Judge.

R. H White, sometimes known as Bob White, was convicted of first degree murder, and he appeals.

Affirmed.

H. U Castle, of Elko, and Cantwell & Springmeyer, of Reno, for appellant.

J. L Clark, Dist. Atty., and J. M. McNamara, both of Elko, M. A. Diskin, Atty. Gen., Wm. J. Forman, Deputy Atty. Gen., and Ioannis A. Lougaris, of Reno, for the State.

DUCKER C.J.

The appellant was convicted in the district court of Elko county of the crime of murder of the first degree. The jury did not exercise their discretion to fix the punishment, and the court imposed the penalty of death. This appeal is from the judgment and order denying appellant's motion for a new trial. As it was argued most earnestly that neither the corpus delicti nor appellant's guilt were proved sufficiently to warrant the verdict, a statement of the case is deemed advisable.

In the month of February, 1928, in the city of Elko, Mike Connis and Louis Lavell, who were then associated together in gambling, entered into a gambling scheme with appellant. The scheme was proposed by appellant. By the terms of this arrangement Connis and Lavell were to furnish marked cards to be used in gambling games in the Commercial Hotel in Elko. Appellant was to get the marked cards into the games. Connis and Lavell were to play and give appellant twenty-five per cent. of the winnings. The scheme was carried out accordingly, and the parties divided more than $2,000 as the result of the winnings. The parties met in the country to divide the spoils. Connis and Lavell occupied adjoining rooms in the hotel, and the cards were marked by them in the latter's room. On the evening of May 4, 1928, Lavell played in the game in the hotel and won $680. On the evening of May 6, 1928, Connis and Lavell were together in the lobby of the Commercial Hotel. Lavell than had on his person $1,050 or $1,100 in paper money in denominations of one hundred, twenty and five dollar bills. He had in his possession a diamond ring. He wore a stickpin in his necktie, and carried a watch. On the night before he had in his possession a loose diamond valued at $325 or $350. He usually carried this diamond in his trouser pocket, wrapped up in cotton and tissue paper. He was wearing a blue suit and a light hat. Lavell was in the habit of carrying large sums of money on his person, and this habit was known to appellant. Between the hours of 10:30 and 11 o'clock Sunday evening May 6, 1928, he left the lobby of the hotel, going through the front door. As he was leaving, he said, "I want to see Bob." The appellant was then standing in front of the hotel. He was seen at this time talking to the appellant for a few minutes, and then to get into a car with him and ride away. Lavell was never seen again.

A building called the Hesson powder house is situated in a small ravine about one and one-half miles easterly from Elko and about a quarter of a mile north of the Victory Highway. Appellant was seen in a car coming from near this powder house between 4 and 6 o'clock on the afternoon of May 6, 1928. On the same evening at 11 o'clock, or 7 or 8 minutes thereafter, appellant was seen at this powder house sitting behind the wheel of a car, and, when the persons who saw him drove by his car, appellant drove away and into Elko at a rapid gait.

On the day of May 6, 1928, the appellant had a rug or mat on the floor of his car between the seats. On the following day there was no rug or mat in the car, and appellant told the witness who asked him where it was that he had taken it out because he was hauling whisky and did not want it cut up with the kegs. There was a gun, a piece of canvass, and a laprobe in the car on the afternoon of that day, and in the forenoon of the same day a witness saw two square five-gallons cans, a piece of canvass three or four feet square, and a gun in the car. This witness thought the gun was a 16-gauge, single barrel shotgun. The witness had seen the gun in the car before quite often. On the afternoon of May 6, 1928, appellant was seen unloading at his home a couple of boxes, which had red labels on them, and which, to the witness, looked like cases in which gasoline cans are carried. Appellant bought a case of gasoline on Saturday May 5, 1928. This case was placed in the back of his car. The witness thought appellant said he was going to return some of the gas he had borrowed in the country. Immediately afterwards he said he was going out in the country; that gasoline was pretty high, and he was going to carry some with him. Appellant tried to buy a flash-light in the Victory garage in Elko on the night of May 6, 1928, between the hours of 10:30 and 11 o'clock, and was told that he might get one at the Mayer garage. Between twenty minutes to 11 and 11 of the same evening, or about that time, appellant borrowed a flash-light at the Mayer Garage in Elko.

On the evening of Tuesday May 8, 1928, somewhere between the hours of 1:30 and 2, or about that time, appellant came to the Mayer Hotel in Elko and engaged a room. At this time he made an engagement with the clerk of the hotel to go fishing with him and Mr. Mayer, the manager of the hotel, on the next day and to take his (appellant's) car for the expedition. The clerk took him to his room. He saw appellant next morning when he came down from his room, and told him that he had a flat tire on his car. Early on the morning of the 8th appellant came into the hotel and told Mr. Mayer that he could not go fishing; that he was going to Currie to look at some horses. About 8:30 that evening appellant telephoned to the clerk of the Mayer Hotel, and told him that he would not want the room that night, as he was going to stay home. Monday evening, May 7th, at about 6:30 or 7 o'clock, Connis saw appellant come into the Commercial Hotel, and the following conversation took place:

"Q. State the conversation. A. When he came in he says, 'Hello, Mike,' I says, 'Hello, Bob, where's Louis?' He says, 'I didn't see Louis.' I says, 'You didn't see him-you was with him last night.' He says, 'No, I didn't see him.' So I says, 'My God, there is something terrible happened. * * *'

Q. Did you have any further conversation? A. Yes, sir, I says, the minute I asked him if he saw Louis and he says no, and I told him he is with Louis, something terrible happened to him, and I turned around to tell Red. I said, 'My God, Louis is a dead man by now,' and of course I saw Mr. White. He turned kind of pale and was kind of nervous.

Q. Did he reply to that? Did he make any reply? A. No, sir."

Connis saw appellant at the Mayer garage in Elko the next morning at about ten minutes past 7 o'clock. In reply to a question concerning this meeting, Connis said, "Well, before we got about ten feet he spoke to us. He says, 'Good morning boys.' I said, 'Good morning, Bob. He says, 'Did you find out anything about Louis yet?' I says, 'No, you ought to know better than we do because you was with him Sunday night.' He says, 'No, I didn't was with him.' I said, 'You were outside of the Commercial Hotel between 10:30 and 11 o'clock Sunday night.' He says, 'Yes, I was, but,' he says, 'I left him and went home and stayed all night and the time I got in home,' he says, 'my wife asked me what time it was and on account of my watch was stopped I can't tell the time and I called up Central and Central told me it was about 11 o'clock.'" Ed. Kendricks, deputy sheriff of Elko County, saw appellant Monday night, May 7, 1928, in his Packard car in front of the Mayer Hotel around 10:30 or 11 o'clock. He did not see him later that evening, but saw his car parked in front of the Mayer Hotel around 3 o'clock or 3:30 the next morning, and observed the condition of the car at that time. There was a flat tire on the rear left wheel, and the car was very dusty. When Kendricks saw the car earlier in the evening, it did not seem to be very dusty. There was a great difference in the appearance of dust on the car at 3 o'clock and when the witness saw it at about 11 o'clock.

Two or three years prior to the disappearance of Lavell, appellant and his wife occupied a cabin situated in Secret Valley about thirty-six miles southeast of Elko. The place on which the cabin was situated was known as the "Ryan Place," and the cabin as the "Ryan Cabin." Some time during the Monday night, May 7, 1928, this cabin was completely destroyed by fire. The road from Elko to the Ryan cabin at this time was described as good. On the morning of Tuesday May 8, 1928, at about 5 o'clock appellant was seen at the Mayer garage. He had a tire repaired, bought some gasoline, and said he was going to Cobre to look at some horses.

At about 7:30 or 8 o'clock Tuesday morning, May 8, 1928 appellant was seen by Morley Murphy and John McKissick at the 71 mail post, which is about five miles from the Ryan cabin in the direction of Elko. Appellant was in a Packard sedan, and overtook them at this point where they stopped on account of a flat tire. He was driving fast. He loaned them his jack to jack up their car, and told them he was going to Currie to see about some horses. At this time Murphy did not know that the Ryan cabin was burned, and there was no conversation about it. Murphy and McKissick continued on their journey, and arrived at the Ryan place a few minutes afterwards, and found that the Ryan cabin had been burned. They saw appellant there. When they arrived, he was the only person there, and was down by an old cabin about one hundred and fifty feet from the ruins. W. B. Wright met appellant on the Halleck Secret Pass road about a quarter of a mile south of the Ft. Halleck...