Whitley v. State
| Decision Date | 22 October 1963 |
| Docket Number | No. 4631,4631 |
| Citation | 79 Nev. 406,386 P.2d 93 |
| Parties | Herman Francis WHITLEY, Lois Kern, Roger Leon Graves, and William D. Embry, Bail Bondsman, as Attorney in Fact for Cosmopolitan Insurance Company, Appellants, v. STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Foley Brothers, Las Vegas, for appellants.
Harvey Dickerson, Atty. Gen., Carson City, Roscoe H. Wilkes, Lincoln County Dist. Atty., Pioche, for respondent.
On October 12, 1960, after dark, or on October 13th before daybreak, three business houses in Caliente, Lincoln County, one of which was the Shamrock Club, were burglarized. Upon discovery of the burglaries an investigation was conducted by county officials. They ascertained the following facts:
Three strangers in a 1955 model Dodge sedan, two-toned green in color bearing a New Mexico license plate, had been seen in Lincoln County on the afternoon and evening before the burglaries. They had attempted to buy a gun at a service station. They were white, two were younger men 20 to 25 years of age, one of whom was dark-complexioned and the other of small stature. The third man was older. Two burglaries recently had taken place in McGill, Nevada. The articles stolen in all five burglaries were ascertained including cash in the sum of approximately $12,000. These articles consisted in part of a 22 caliber Hi-Standard pistol, a cap and ball pistol (a relic), a hospital corpsman's ring of cheap silver, one imitation ruby ring in a Tiffany setting, one gold ring with Fire Department badge on it with initials inside one ring with a Roman's head engraved in a setting, an imitation diamond ring with large stone in center with two small stones on each side, a Rotary past-president ring, an Elgin wrist watch, shoes with rubber soles having a cross-ribbed design, vinyl jackets, one of which was brown or orange in color and one steel gray.
The results of this investigation were transmitted to the Las Vegas Police Department. Las Vegas police officers Reed and Stopka, after receipt of this information and while patrolling in Las Vegas on October 14, 1960, noticed a two-toned green 1955 Dodge sedan with New Mexico plates parked in a parking lot of the Wittwer Motel on North Main Street in Las Vegas. Two young men, later ascertained to be Denny and Graves, were observed to be standing on the motel balcony at a position above the Dodge automobile near the door of Room 44. Shortly afterwards these two men were observed driving the Dodge sedan out of the Wittwer Motel parking lot proceeding northerly on North Main Street. The officers caused the vehicle to stop. 1 Denny and Graves were ordered to step out of the vehicle. As they did so a black sock on the floor of the automobile filled with coins was observed by the officers. When the men opened their wallets to show their identifications each wallet was seen to contain much currency in large denominations. At this time Officers Handlon and Compton arrived. Neither suspect would give any information regarding the sock full of coins. They were placed under arrest, a search was made of the trunk of the automobile, wherein between the folds of a blanket was found a 22 caliber Hi-Standard pistol. The black sock contained coins with wrappers, one wrapper marked 'Red Wing Specialty Company, Caliente, Nevada.' Handlon, who had been informed of the circumstances of the burglaries, proceeded to the Wittwer Motel. He determined that the green Dodge was not the automobile of any tenant there registered and that Denny and Graves were not tenants of the motel. Handlon then returned to the police station and ascertained that $858 had been taken from Denny and $528 from Graves and that Denny and Graves were staying at the Normandie Motel. A key to a room in said motel was found on one of the prisoner. Handlon, in the company of Officers Compton and DeWeert, then went to the Normandie Motel on Las Vegas Boulevard South. They learned that Room 3 was occupied by Mr. Ted Baird and two guests, whose registration card revealed that their automobile was a Dodge sedan having a New Mexico license plate bearing the number of the car then being held at the police station. The officers proceeded to Room 3, knocked on the door several times, and when no one answered the key was placed in the lock and the door opened. They found D. W. Black lying on the bed. After receiving Black's consent a search was made of the room. In this connection, the consent was given while each of the officers was bearing a gun more or less exposed. 2 The search revealed the following objects: A ring fitting the description of one of the rings that had been stolen a pair of boots and a pair of oxfords, both of which had rubber soles with a 'cross-ribbed' design, two antennas, two microphones, two new vinyl jackets, a sock containing 99 dimes and a sock containing 101 nickels, a gun holster, and some white cotton gloves. Black was placed under arrest. Handlon returned to the police station where he received a phone call from the Wittwer Motel that Denny and Graves, when at the motel, had been visting Room 44. Another phone call from the Normandie Motel advised Handlon that a call had come from Room 44 of the Wittwer Motel to Room 3 of the Normandie Motel. Thereupon Handlon with Compton and DeWeert proceeded to the Wittwer Motel where they knocked on the door of Room 44. They were permitted to enter the room by the wife of Denny. They entered the room with their sidearms drawn. Herman Whitley was lying on the bed. Permission was given by Whitley to search the room. Through the open door of the closet two new vinyl jackets could be seen, one steel gray and the other burnt orange or mustard in color. On a chest of drawers was a piece of paper on which was written 'Normandie Motel, Room 3, South Las Vegas Street.' Also in plain view was a purchaser's receipt of a cashier's check in the sum of $1,000. A cap and ball pistol was found in a suitcase. A black sock identical to the one found in the Dodge containing $124.28 in miscellaneous coins also was found. Whitley and Mrs. Denny were arrested and taken to the police station where Mrs. Denny was later released. A second call from the Wittwer Motel was received advising that there was a lady in Room 44. Officers proceeded there where they were admitted by Lois Kern (Whitley). 3 Mrs. Kern was arrested.
After all of said persons had been arrested, Lincoln County authorities were notified and they proceeded at once to Las Vegas. A further search was conducted in Room 3 of the Normandie Motel which revealed a Roi-Tan cigar box lid and a new pair of men's argyle socks with a Gottfredson's Department Store 4 price tag affixed to same. They then further searched Room 44 of the Wittwer Motel where further items of evidence were picked up. The car being used by Whitley and Lois Kern, a tan Oldsmobile, was also searched and it revealed a sledge hammer, a 3/8-inch punch, two battery-powered radio transceivers, a pair of leather boots with ribbed soles, a pair of tan leather gloves, and a Roi-Tan cigar box without a lid.
No warrant of arrest had been issued prior to the arrest of any of the five persons. No search warrant had been issued prior to the seizure of the articles later offered in evidence during the trials.
Two trials were required because on June 19, 1961, at the time of the commencement of the trial of Whitley, Kern, and Black, defendants Denny and Graves had absconded while at liberty under bail. After their apprehension and on August 20, 1962, their trial took place. All defendants in the two trials were found guilty. The defendants were tried for the burglary of the Shamrock Club only.
Black did not appeal from his conviction. Denny, after appealing, dismissed his appeal. Thus we are concerned only with the appeal taken by Whitley and his wife, Lois Kern, from the judgments against them and from the order denying their motion for new trial, the appeal of Graves from the judgment, and the appeal...
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