Nevada, G-K, 1882-1994, Undated

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dark hair done up in pin-curlers, an-
swered their knock. Her eyes widened
when she saw the uniformed officer
and the articles in his hand.

“Are you Thelma Rabail?” he asked
her.

“Why, no, I’m her sister. Thelma
isn’t home. What’s wrong? That’s
Thelma’s bag, isn’t it? Has—has some-
thing happened to her?”

The sister was extremely upset when
her early-morning visitors explained
their errand. The shoes as well as
the bag certainly belonged to Thelma,
who should have been home hours
ago, she said.

Thelma Rabail, it developed, was a
25-year-old divorcee who worked
nights as a shill, or house-player, in
one of the gambling casinos on Center

Street. She lived with her older sister, -

Viola Francis, who worked days at
a downtown cafe. Thelma got off shift
at midnight, but frequently went out
on late dates and came home in the
small hours of the morning.

She had said nothing about having
a date Thursday night, but her sister,
who was just getting ready to go to
work herself, hadn’t been’ particularly
worried when Thelma didn’t come
home by early morning. But now the
finding of her bag and shoes in the
street suggested ominous possibilities.
Thelma had no car of her own. She
usually took a cab when she wasn’t
driven home by friends.

“Something must have happened to
her, right out in front here,” Viola
was positive. “She. must have been
kidnapped in a car! That’s the only
thing that could have happened.
Thelma never gets drunk. She couldn’t
possibly have lost her. bag, with all
her money, and her shoes, unless some-
one took her away by force. And to
think, it happened right at her own
door! Why, if she’d screamed for
help I would have heard her.”

Viola wanted a missing person alarm
broadcast at once, However, at the
practical suggestion of the radio pa-
trolman, she undertook to call Thelma’s
employer. and some of her friends
first, to make sure there was no other
explanation of her absence and to find
out just what time and with whom,
if anyone, the gambling divorcee had
left the casino. ‘

Before starting her phone calls,
the distraught brunette riffled quickly
through the contents of Thelma’s hand-
bag and said nothing appeared to be
missing, as far as she could ascertain.
Thelma had been paid a couple of
nights before, and habitually carried
most of her money, around in her bag.
While at work, she of course gambled
with house money and turned in her
winnings, if any, when she went off
duty. _

Viola gave the conscientious cabbie
a handful of silver dollars as a reward,
and agreed to go right down to» police

headquarters’ and file a formal report
if she couldn’t locate the missing girl
or to call if Thelma should turn up
safely. The visitors left her thumb-
ing through Thelma’s address book,
ready to start telephoning.

The policeman rang several adjoin-
ing doorbells and talked to the startled
neighbors, but was unable to find any-
one who had seen or heard anything
at all suspicious during. the night;
much less a scream or a’ scuffle. Due
to go off shift, he drove back to head-
quarters and filed his report on the
incident. :

Reno Detective -Captain Joseph
Kirkley barely had seated himself at
his desk a few minutes after 8 o’clock
that morning, when Viola Francis was
ushered in. Her calls to a dozen people
had turned up no clue at all, and
Thelma’s boss and friends agreed a
full-scale police investigation was war-
ranted. There had been a number of
sex crimes in Nevada recently, and
they feared the attractive young di-
vorcee had been snatched from the
street. by some night-prowling rapist
or pervert.

The sister described Thelma as a
brown-eyed brunette like herself,
about 5 feet 5, 130 pounds. Viola hadn’t
been home when Thelma left for work
late the previous afternoon, but a
check of the clothes closet showed
Thelma had been wearing her new
black bolero dress and a white blouse.

Killer’s capture in quiet San Francisco parking lot overlooking ocean, shocked romantic couples engrossed in watching sunset

Dep. Sheriff Jac

While she ha
divorce decree o1
before, Thelma
of those impatier
Reno solely to
dence for a quicl
plained to the d«
said that Thelma
She had split u
Leo Gambetta, <
tender almost 20
more than two y
year ago she cam
in with her sister
originally for h
decided to becon
dent.

Thelma, a \
young woman, |
ing night life ;
niche as a paid
Captain Kirkley
be a perfectly r:
in Nevada, wher:
and booming inc
sinos all emplc
shills, both men
with bankrolls t
keep the games g
ers betting. The
worked in severe
and down Center
and knew her we
was respected a
the gaming frate

Thelma resume

‘after leaving he

hadn’t been in
divorce. Eventu

Sarter noted further
iarris’ shoes showed,
ics on microscopic
dinute dog hairs em-
soil from the Lip-
» were some white
(rs. Lipson’s clothes.
spect’s T-shirt.
iutopsy report con-
ate woman had died
: twisted wire. She

derly witness, who
an from the porch,
ae-up, but was un-
However, the old
is eyes were so bad
e’d be able to pick
2ly under any cir-
thick “beer-bottle”

ked on suspicion of

continued, giving
e doubt. The homi-
ozen slim but possi-
slain woman’s busi-
nated a number of
ts. After two days

they came back to °

R. Harris.

Harris, despite his

d his new car, was

trying to negotiate
1e had gone to
try to borrow

his new car in- ©

_ _fused, they be-
w into a rage and
e originally refused
ie, and he came to
») kill and rob her,
ble sums of money

ller might have in-
oting the real estate

rifle her purse, he.

ut to flight by the

young ex-convict,
a attorney for him,
»ment or to take a
wouldn’t even dis-
er. “I’ve told you
morning,” he re-
e told you all I

ith, convinced that
an, the Hollenbeck
i their evidence be-
aey and secured a
int. After several
f his attorney, Har-
y hearing on April
Judge George B.
and crime labora-

ited their carefully ©
al evidence. Harris - |
One alibi witness. -

aughter, who now
was closer to 9:30
2ft home the second

2aring the entirely
rincipally physical

: Harris held with- i

al on the murder

Harris entered a
ore Superior Judge ~) .
id his trial was set —
guilt or innocence ~

by a jury. $¢@

tiago, as used
_. | mot the real
concerned. This

va fictitious name | 3

‘Her Love Gamble
‘Paid Off in Lead

(Continued from page 53)

Detectives Mike Salonisen and William
.Backer to check further on Thelma’s
‘movements of the night before, and he
‘wired San Francisco police for a routine
rundown on Leo Gambetta.

The detectives talked with several night
,cab drivers who hung out on Center
Street, but found no one who had seen
Thelma leave the club at midnight. How-
-ever, they soon located some of the all-

night gambling people breakfasting in a
cafe nearby, and picked up further infor-
mation on the brunette divorcee’s love
life. Her current boy friend was Bill
Harper, a tall blond ex-GI from Los An-
geles, who was in Reno selling automobile
accessories. She and Bill seemed quite
wrapped up in each other and he called
for her after work nearly every night,
-but Thelma, who maintained she didn’t
~ want to be tied down, still went out with
- other men once in a while. In particular
there was a wealthy young Texan named
.Harvey Weber, who had dropped consid-
‘erable money at the casino the previous
“week end.

Bill Harper was believed to be staying
sat a motel somewhere on the west side
“of town. Harvey Weber, who drove a
“brand-new blue Cadillac convertible, had
been stopping at one of the downtown
‘hotels. The detectives set out to find the
“two men.

., Meantime Joe Kirkley was glancing
«through the sheriff’s crime reports of the

night before, and he did an electrified
double-take. A woman who lived on USS.
Highway 40 near Idlewild Park on the
western outksirts of Reno had called the
sheriff at 3 a.m. to report she had been
awakened by two gunshots on the boule-
vard. She got up and looked out her
front window, just in time to see a man
close the trunk of a light-colored sedan
parked at the curb, jump behind the
wheel and speed away westward. By the
time deputies arrived, the car had van-
ished. It was pitch-black and the wo-
man couldn’t describe the man, but she
thought the sedan was a late-model Ford.
She was an outdoor woman and she was
quite positive the two loud blasts in rapid
successsion were pistol shots and not auto-
mobile backfires.

The spot on Route 40, the busy trans-
continental Victory Highway that bisects
Reno before climbing the High Sierra into
California, was only a few blocks from
the junction of the West Second and West

Fourth Street traffic arteries, and less than’

a mile from Thelma Rabail’s apartment.
And when Kirkley’s men, still hunting
Harper and Weber, reported in midmorn-
ing that everything they had learned in-
dicated Thelma must have been snatched
violently from the street, Kirkley and
Police Chief L. R. Greeson were almost
positive the two incidents were related.
The picture blackened further when a
team of Sheriff Ray J. Root’s deputies, dis-
patched to make a more thorough daylight
search of the area on U.S. 40, found a new-
ly discharged .30 Luger cartridge case
lying in the weeds. The sketchy descrip-
tion of the sedan was added to the all-
points bulletin.

Salonisen and Backer had located Har-
vey Weber’s hotel room, but he wasn’t in
it. They staked out a team of officers
there while they pressed their motel hunt

for Bill Harper. Then, at 11 a.m., the
awaited San Francisco report on Leo
Gambetta came in by teletype.

Captain of Inspectors Bernard J. McDon-
ald of the California metropolis reported
that the swarthy bartender was on vaca-
tion from his job and hadn’t been around
his hotel, on lower Turk Street in the
Tenderloin district, for more than a week.
The clerk assumed he had gone out of
town. However, Gambetta had dropped
into a nearby tavern at 8:30 that very
morning, just before the Reno inquiry
came in. Detectives were still looking for
him. He drove an old dark green Buick
sedan, of which San Francisco supplied
the license number.

The report added that Thelma’s ex-hus-
band, a short, muscular, barrel-chested,
hawk-nosed man whose full name was
Eugene Leo Gambetta, had been arrested
in San Francisco and elsewhere in Cali-
fornia for gambling, pimping and assault
and had once served a federal prison term
for white-slaving. On learning this, Joe
Kirkley called Viola Francis. The miss-
ing woman’s sister was shocked to learn
Gambetta was an ex-convict. Thelma
never had told her this, if indeed she had
known it herself. Viola only knew that
Leo “had some trouble with the police”
in the past. He was as close-mouthed as
was his ex-wife, about their personal
affairs.

Studying the report, Kirkley and Chief
Greeson concluded that Leo Gambetta,
despite his unsavory record, was not a
very good suspect in the apparent abduc-
tion of his ex-wife. The San Francisco
detective chief reported Gambetta had been
seen there, 230 miles from Reno, at 8:30
that morning, just two hours after
Thelma’s purse and shoes were found in
the Reno street and five and a half hours
after the shots were heard on Route 40. It

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Dep. Sheriff Jack Goss (r.) printed many suspects, finally added right one to file

While she had secured her final
divorce decree only a couple. of weeks
before, Thelma Rabail was not one
of those impatient wives who come to
Reno solely to establish brief resi-
dence for a quickie divorce, Viola ex-
plained to the detective captain. She
said that Thelma came from California.
She had split up with: her husband,
Leo Gambetta, a San Francisco bar-
tender almost 20 years older than she,
more than two years before. About a
year ago she came to Reno and moved
in with her sister, who had gone there
originally for her own divorce and

decided to become a permanent resi--

dent.

Thelma, a vivacious, fun-loving
young woman, liked the free-wheel-
ing. night life. and soon found her
niche as a paid gambling shill. As
Captain Kirkley was aware, this can
be a perfectly respectable occupation.
in Nevada, where gambling is a legal
and booming industry. The big ca-
sinos all employ house-players or

- shills, both men and women, supplied

with bankrolls to liven things up, to
keep the games going and the custom-
ers betting. The young brunette had
worked in’ several different places up
and down Center and Virginia Streets,
and knew her way around town. She
was respected and esteemed among
the gaming fraternity. .

Thelma resumed her maiden name

‘after leaving her husband, but she.

hadn’t been in any hurry to get. a
divorce. Eventually she filed in the

spring of 1948, citing routine grounds
of cruelty, and just recently picked up
her uncontested final decree at the
Washoe County courthouse.

Captain Kirkley was interested in
the men with whom Thelma had been
keeping company, but her sister
couldn’t tell him very much. “Thelma’s

- never been one to talk about her per-
sonal affairs,” the worried woman ex~
plained. “She keeps her mouth closed.
I guess that’s why she gets along so
well with the gambling people. And
before the divorce, she specially didn’t
want Leo to find out anything about
her business. He was carrying the
torch for her, for a long time, trying to
get her back, you know.”

Since Viola worked days and Thelma
nights, sometimes they hardly saw
each other all week. Viola had met
two or three of her sister’s boy friends
in recent months, but she paid little
attention and knew only their first
names. Lately, for ‘several weeks,
Thelma had been going around with
a tall, handsome young fellow named
Bill, a salesman of some kind from
Los Angeles. In_ fact, the ‘couple
seemed half-serious about each other,
but Thelma had never confided any

’ plans for marriage and Viola hadn’t
inquired.

Viola had last spoken to Thelma
Wednesday noon. She was asleep when
Thelma got home Thursday morning.
Thursday evening when Viola came
home, there was a note on the kitchen
table about some ‘ routine household

‘

matter. That was all. Thelma had
apparently gone to work. about 3:30
P.M.

The brunette shill’s boss confirmed
that Thelma had been at work as usual.
He didn’t recall anything out of the
ordinary Thursday night. The casino
had been filled as usual, and Thelma,
a piquant figure in her black bolero
outfit, had gone about her regular
duties at the roulette, faro, blackjack
and dice tables. She turned in her
chips and bankroll at midnight. As
far as the boss knew, she left alone,
though he. couldn’t be sure. She said
nothing about going anywhere in par-
ticular.

Thelma’s girl friends, including some
of her coworkers, and other mutual
acquaintances whom Viola had called
could contribute nothing at all. Thelma
had been going fairly steady with Bill
for some weeks, most of them knew.

‘But Bill hadn’t been seen around the

casino Thursday night, and Thelma
still dated other men occasionally,

Captain Kirkley, making swift notes,
turned back to Leo Gambetta, the miss-
ing brunette’s ex-husband. He was 44
years old and worked as a bartender
in San Francisco night clubs. Thelma
had met him when she was a hat-check
girl and had fallen for his swarthy
Latin charm. They had been married
only a year or so before they split up.
According to Viola, Leo was too brutal
and demanding for Thelma’s taste. He
was unreasoningly possessive. He in-
sisted she stay home all the time he
was at work, while young Thelma
wanted to have her own friends in
addition to his.

For some time after Thelma left
‘Leo, her sister told the Reno detective
commander, the bartender had annoyed
and harassed her. He ordered, ca-
joled and begged her to come back
to him, and even threatened harm to
her and her new boy friends. In fact,
that was one reason why Thelma left
San Francisco a year before and came
to Reno. Leo followed her to Reno and
took a bartending job there. He visited
the sisters’ apartment several times.
But finally, when Thelma made it clear
she wanted nothing more to do with
him and planned to get a divorce, ‘he
desisted and went back to San Fran-
cisco. Viola hadn’t seen nor heard of

- him for a couple of months. She gave

the captain Leo’s address in the bay
city.

Viola signed a missing person report.
After double-checking personally with
the gambling boss, who confirmed that
Thelma Rabail was a strictly level-
headed, responsible young woman who
could take care of herself, Kirkley at
9 a.m. issued an all-points radio and
teletype bulletin to police and sheriffs
throughout Nevada, California and
Arizona, with the description of the
missing 25-year-old brunette. He dis-
patched (Continued on page 67)

was possible, of course, that he could have

driven the distance over the mountains
| and across California in that time, but it
| hardly seemed likely. Further, Gambetta
drove an old dark green car and the
hunted sedan was new and light in color.
The hunt concentrated on the two Reno
Playboys Thelma had been dating.

It centered on Harvey Weber when
one of Thelma’s girl friends, a blond
casino hostess, disclosed that the lively
brunette had a late date with the husky
Texan the night before. She was to meet
him after getting off work. She had men-
tioned they were going to a roadhouse.

A few minutes before noon, Weber
walked into the stakeout at his hotel room.
Without telling him why he was wanted,
the detectives rushed him down to head-
quarters. His car was impounded for
laboratory examination.

Chief Greeson and Captain Kirkley
calmed down the protesting young Texan,
| whose dark-ringed eyes betrayed lack of
| sleep, and asked him to account for his
movements of Thursday night and Friday
morning. He readily told them about his
date with Thelma Rabail, whom he had
met when he first visited the casino and
taken out once before. “I took her home
about 2:45 a.m.,” he said. “I left her at
Second and Ralston, in front of her house.
She didn’t want me to come in because
her sister and the neighbors were asleep.
I kissed her goodnight in the car.”

Weber said he went straight back to
his hotel and to bed. He got up at 8 a.m.
and went out to keep an early appoint-
ment with an attorney. He was deeply
shocked to learn that Thelma was missing
and feared slain. ‘So she wasn’t kidding,
then, when she told me she was afraid
of somebody!” he exclaimed.

“What do you mean?”

“Why, Thelma said she was scared of
some fellow who was jealous of her. Seems
he’d threatened to beat her up if he
caught her out with anyone else. That’s
why she didn’t want me to pick her up
where she worked. She met me at a little
bar a block down the street, and all the
way out to the roadhouse she kept look-
ing back to see if we were followed. I
thought maybe she was putting on an act,
but now it looks like it was the real
thing.”

“Did she tell you who this man was?”
Captain Kirkley pressed.

“No, sir, I asked her but she never did
tell me. I told her I'd be glad to take
care of anybody that bothered her. But

was her business and she could handle it.”

The officers took Weber again over his
account of exactly how he had left
Thelma in front of her door. He had
double-parked, he said, because there was
no room at the curb in front of the house.
The brunette said not to bother helping
her out. Harvey watched as she started
up the dark driveway toward her door at
the rear. He drove off without actually
seeing her enter her apartment. It was
entirely possible, he agreed, that someone
was lurking in the shrubbery and jumped
her the moment he left. He didn’t recall
| having seen anyone on the block, and all
| the houses were dark and silent.

The wealthy young man’s story sounded
straightforward enough. He assured his
questioners the only guns he owned were
home in Texas. He was held while Dallas
Seever, the ID officer, examined the blue
Cadillac and detectives checked on the
time Harvey had returned to his hotel.

Detectives Salonisen and Backer mean-
time had picked up the trail of Bill Har-
per, the handsome salesman, by checking

M auto accessory shops. They were only a
0 jump behind him as he made his busi-
ness calls. Their interest sharpened when
they learned he drove a late-model light

she said I needn’t worry about it, that it -

gray Plymouth sedan.

And the spotlight of suspicion swung
directly on the Los Angeles man when still
another of Thelma’s girl friends, who had
just learned she was missing, called de-
tective headquarters with the informa-
tion that Bill Harper had objected strong-
ly to Thelma’s going out with Harvey
Weber. In fact the couple had quite a
spat Wednesday night, and Thelma told
Bill she didn’t care whether she ever
saw him again, her friend reported.

By this time Greeson and Kirkley had
concluded that the fact Thelma hadn’t
screamed for help indicated she was ab-
ducted by someone she knew, rather than
by some. wandering sex prowler. Every-
thing indicated that a jealous swain had
waited in the bushes and grabbed her as
she walked up the drive after getting out
of Weber’s car. Bill Harper seemed the
Number One candidate. It would be just
like Thelma, her sister and friends agreed,
to keep quiet in the confidence that she
could handle matters herself without any
fuss. She hated to have her personal af-
fairs limelighted. But this time, it ap-
peared, the dark-haired playgirl had fa-
tally over-estimated her own powers of
diplomacy and persuasion.

With half a dozen detectives working on
the case, and uniformed police and deputies
combing the streets and highways for any
sign of Thelma or Bill or his car, things
moved fast. Early in the afternoon Dallas

WATCH FOR
BITTER END FOR THE EXTRA WIFE

Was she really faithless, as he said?
Or was she just in the way?

in the October issue of
MASTER DETECTIVE
on sale AUGUST 28th

Seever reported there was no physical
evidence in Weber’s car to indicate that
any violence had taken place in it, and at
the same time it was established that he
drove the Cadillac into the hotel parking
lot and went up to his room at 2:55, five
minutes before the shots were heard on
Route 40 more than a mile away. The tired
young Texan was cleared of suspicion and
released.

A few minutes after Weber walked out
of the police station, Kirkley’s men picked
up Bill Harper when he returned to his
motel, which was out on West Second only
a few blocks from Thelma’s apartment. He
was brought down to headquarters and his
gray Plymouth turned over to the ID ex-
pert.

Harper, who expressed bewilderment at
his arrest, had a ready alibi for Thursday
night. He had been playing poker with
five other men in a friend’s downtown hotel
room, from 9 p.m. till 4:30 a.m. Friday.
After that he sat in a cafe with several
men till after 6, then snatched a few hours
sleep before starting his belated business
rounds.

Kirkley dispatched officers to check on
Bill’s alibi. It was only then, with his story
on record, that they told him Thelma Ra-
bail was missing and asked him about his
relations with her. Appalled at the news,
the handsome blond ex-GI disclosed that
he and the gambling girl had a halfway
understanding that they were to be mar-
ried. In fact, it was.just after they met
that Thelma filed for divorce, at his urg-
ing. But the lively young brunette in-
sisted on preserving her freedom till they
were married. It was more or less as a
gesture to assert her independence that
she had accepted the two dates with
Harvey Weber. Still Harper hadn't liked

it, and he admitted they had quarreled
Wednesday night. But it was just an or-
dinary lovers’ spat, and he assured the
detectives he hadn’t threatened Thelma,
and it never occurred to him to follow
or check up on her. j

“I knew this Weber didn’t really mean
anything to Thelma,” Bill explained, “and »
I figured she’d cool off pretty quick. I
was going to call her tonight and take her’
out after work.”

Harper said he had last seen Thelma
when he took her home Wednesday night,
or rather Thursday morning about 2
o’clock. He didn’t own a gun, and the
laboratory reported his gray car was clean.
He began to fade as a suspect.

Then, when Kirkley told Harper the
circumstances of Thelma’s disappearance,
the case broke wide open. When Thelma’s
boy friend learned about the shoes and’
purse found in the street, he jumped up
with an exclamation. “Gambetta’s the :
man you want! That ex-husband of hers. 4
He’s got Thelma!” R

“What makes you so positive of that? |
What do you know about Leo Gambetta?”
the officers asked. 4

“Why, Thelma was scared stiff of him. Hi
When she filed the divorce, he phoned her 4
at work, from San Francisco, and threat- -
ened to come up here and kill her if she.
went through with it. Then one night, *
about a week ago, when I drove Thelma -
home, she saw him sitting in his car g
across the street, watching her place. I#
wanted to go after him, but she held meq
back, and he drove away when he saw us #]
looking at him. That was when Thelma ;
told me about him. I urged her to tell the »
police and have him arrested or run out of i
town, but she said she could take care 7
of it and I shouldn’t worry. She was afraid -
of any scandal that might hurt her on her «
job. ‘

“But I couldn’t help worrying about her. 2
According to what she told me, this Leo ©
is dangerous. Finally, just the other night, :
Thelma agreed on a code between US.
If Leo ever caught up with her and forced *
her to go with him, she’d kick off her shoes ©
and drop her bag. :

“Tf I should turn up missing and my #
purse and shoes are found in the street,’ FS
she told me, ‘you’ll know Leo’s got meq
and you can call the police. They'll know @
who to look for.’ ;

“So now he’s got her—and if you're/} hours after Thelma Rabai
right about the shots out on the highway, 4 had been found on the
maybe it’s too late to save her. But maybe i Francisco Radio Patrolme:
those shots were something else. Maybe | and Dick Dwyer were cr
he’s holding her somewhere. You say he™ Great Highway at the oce
was seen in San Francisco this morning. 4 ing Fleishhacker Pool an
Maybe he took her there, forced her to playground at Sloat Boul
go with him.” 4 ern limit of their patr

It was 2 p.m. Chief Greeson immediately | slowly around to go back.
broadcast an emergency all-points bulletin Dick Dwyer casually
for Leo Gambetta and his green Buick, 4 row of cars parked on th
which Harper confirmed was the car the ~ overlooking the ocean. TI
ex-convict bartender had been driving }a favorite parking place
when he was spying on Thelma’s apart- { night, and that late afterno
ment. Perhaps the description of the light & were sitting watching the
sedan was mistaken. Joe Kirkley hit the™ set over the blue Pacific
telephone to San Francisco. Captain Mc- # young officer tensed. “Hey-
Donald there had no further word on4 parked over there—the )
Gambetta, but promised to broadcast aMisn’t that the one?”
radio alarm and intensify the search in! Hurriedly Bourke che
the Tenderloin. Kirkley asked him to Tush 3¥ sheet” of wanted cars. “Tt
mug photos of the hawk-nosed bartender © New gray Ford, 25-L-683.
to Reno by airmail special. 4 0n suspicion of kidnapin;

Bill Harper’s alibi stood up completely,“— The officers had noted th
and he was cleared. Sheriff Root joined » only an hour before, a
forces with Chief Greeson in the all-out J through Golden Gate Park
hunt for Leo Gambetta. 4 listed as armed and dang:

In midafternoon police and_ sheriff's” They pulled up, jumpe
cars swarmed over the Reno area. They*| proached the Ford from «¢
searched the bushes of Idlewild Park ] service guns drawn. A m
and along the banks of the Truckee River.. the wheel. The officers ya)
Deputies cruised U.S. 40 as far as Donner * open at the same instant a
Pass on the California line 11 miles west | The swarthy, hawk-nos
of Reno, scanning the shrubbery and‘ looked thoroughly beat, «
checking side roads for spots where a body 4 surprised. He raised his

might lie hidden. The ¢
} patrol was alerted, and

down the western slop
i] Sierra. The officers avre
4 if indeed he acti
| Francisco, 230 mi
morning, after lea\
have driven at top sp«
Route 40, down through
lejo and Oakland and ov

Captain Kirkley’s me:
suspected killer’s trail in
the bar near the casino
where he had hung out
ing to himself and drink
an ominous scowl on hi
of the time. He had las:
Thursday afternoon. The
he had made about his fo
ing Gambetta once wor!
and had friends there,
authorities of the south
which at that time, 10 y:
beginning to rival Rer
gaming mecca.

At 3:30 p.m. came a |
old green Buick was fou
Reno parking lot, wher
five days before. On t
development came a cal)
cisco: the hunted barten:
in the bay city. Homicide
Ahern and George Mur)
through the Tenderloin,
him in another bar wh
drinking between 2 anc
alone, and sat off in
morosely into his drink

“There’s only one ans\
decided. “He’s driving a r
up his own car after The
_him in it, and rented one
low her without being s

Detectives hit Reno’s <
cies. Intensive legwork s
4:30 they found the p
Gambetta had rented a
two-door sedan on Jul:
checked in Thursday aft
up to date, saying he wc
car a few days more.

Radio and teletype c
description of the grav Fo:
25-L-683, and the te
between Reno and

The payoff was
6:30 that Friday aftern

. 104. Nevada Historical Society Quarterly ©

Death, Law,”’ San Francisco Call-and Post, 9 February 1924; Nevada State Journal, 9 February
1924; Scrugham ta Kime, 9 April 1924, NSP-2320; Nevada, Legislature, Assembly, Journal of the
Assembly, 30th sess. (1921); 247; Nevada, Nevada Statutes (1921): ch. 246, p. 387.

27. ‘Las Vegas Age, 19 March 1921: Pioche Record, 25 March 1921; Nevada State Journal, 29

March 1921; Carson City Daily Appeal, 6 January 1923; Reno Evening Gazette, 18 January 1924. °

28. Nevada, Legislature, Assembly, Journal of the Assembly, 30th sess. (1921): 247, 301, 314;
Nevada, Legislature, Senate, Journal of the Senate, 30th sess. (1921): 255, 257, 262, 272.

(29. Nevada, Nevada Statutes (1921): ch. 246, p. 387.
30. Carson City Daily Appeal, 29 March 1921.
31. - Ibid., 26 January 1922; Nevada, Revised Laws 2 (1912): sec. 7,286, p. 2,041.
32. Carson City Daily Appeal, 27 January 1922.
ec “93.21 bid: et
"34. ‘Ibid., 27 February 1922. : ;
35. Nevada, Supreme Court, Nevada Reports 46 (1922-1923): 419-420, 422-424, 435-438:
Nevada, Supreme Court, Clerk, Biennial Report, 1923-1924, p. 11.
36. Nevada State Journal, 6 July 1923.

. 37. Ibid., 28 July 1923; Carson City Daily Appeal, 9, 27 July 1923; Nevada, Attorney General,
Biennial Report, 1923-1924, p. 196.
38. Carson City Daily Appeal, 27 July, 14, 20-21, 31 August 1923; Nevada State Journal, 21
August 1923; Nevada, Supreme Court, Clerk, Biennial Report, 1923-1924, p. 12.

39. Carson City Daily Appeal, 5, 29 September 1923; William Kennett to James M. Frame and

Fiore Raffetto, 11-September 1923, case file no. 2,547, Nevada Supreme Court Clerk, Carson City
(hereafter referred to as NSC-2547). * :

40. Carson City Daily Appeal, 11 September 1923.
41: - William Kennett to Jay H. White, 27 December 1923, NSC-2547.
42. Gardnerville Record-Courtier, 11 January 1924.

43. Christen Jensen, The Pardoning Power in the American States (Chicago: University of
Chicago Press, 1922), p. 71. ,

44. Reno Evening Gazette, 22 January 1924; Gardnerville Record-Courier, 25 January 1924.
45. Carson City Daily Appeal, 16 January 1924.

46. Reno Evening Gazette, 22 January 1924,

47.- Ibid. ~

48. Walker Lake Bulletin, 12 January 1924.

49. Reno Evening Gazette, 11 January 1924,

50. Ibid., 22 January 1924; Carson C ity Daily Appeal, 24 January 1924; Nevada State Journal,
25 January 1924. :

Sl. Nevada State Journal, 24 January 1924.

52. Reno Evening Gazette ,.23 January 1924.
53. Fallon Standard, 16 January 1924.

54. Tonopah Daily Times, 26 January 1924.

nh Carson City ‘Daily Appeal, 25 January 1924.

56. Ibid., 26 January 1924; Nevada State Journal, 27 January 1924; Young China. 28 January
1924. In addition to Hughie Sing’s sentence, the state board of pardons and parole commissioners
acted on those of three other Chinese during the 1923— 1924 period. Paroles were granted to Lee
Sing, convicted of first degree burglary; Yee Toy, convicted of first degree murder; and Chin Gim,
convicted of narcotics possession. Nevada, Governor, Message of Gov. James G. Scrugham to the
Legislature of 1925, 32d sess.. pp. 37- 38.
57. Reno Evening Gazette. 28 January 1924,
After commutation of his sentence, Hughie Sing was incarcerated at the Nevada State Prison until

- Example For The Nation a 105

-he was paroled in 1938. As an inmate, his general conduct was described as ‘‘very good.’’ Between

1930 and 1938 he made fifteen applications for parole. All of them were denied except for the last
one. Governor Richard Kirman and other memberé of the board of parole commissioners finally
approved of Hughie’s petition. wee

In his applications, Hughie indicated his desire to go.to China with his aged mother, where they

’ would live the remainder of their days. By 1938, however, China and Japan were at war, and even.

the exertions of Senator Patrick A. McCarran’s secretary in Washington could not convince the

- Department of State to issue Hughie’a passport. He had to be content with staying in the United

States, but a special condition of his parole was that he leave Nevada and never return.
Following his release, Hughie traveled to San Francisco's Chinatown, where he stayed at the

Gum Mon Hotel (Chin-men lu-kuan) on Grant Avenue. Then, he went southwards to join his family -

in Los Angeles. By 1940 he was working as a waiter ina Chinese cafe in Los Angeles. NSP-2321.
58. Carson City Daily Appeal, 4—5 February 1924.

59. Ibid., 5 February 1924; Young China, 6 February 1924,”

60. Reno Evening Gazette, 6—7 February 1924; Young China, 7 February 1924.
61. Nevada State Journal, 8 February 1924. ee

62. Carson City Daily Appeal, 15, 28 January 1924; San Francisco Call and Post, 22 January
1924; Reno Evening Gazette, 26 January, 5 February 1924; Pioche Record, | February 1924; Las
Vegas Age, 2 February 1924. -

63. Las Vegas Age, 2 February 1924. . :
64. Chung Sai Yat Po, 8 February 1924; Nevada State Journal . 8 February 1924,

65. Delos A. Turner to Chief of Chemical Warfare Service, U.S. War Department, February
1924, NSP-2320; Young China, 9 February 1924; Nevada State Journal, 9 February 1924; SanJose

Mercury Herald, 9 February 1924; New York Times, 9 February 1924.
66. Nevada, State Prison, Warden, Biennial Report, 1923-1924, p. 4.
67. Turner to Chief of Chemical Warfare Service, February 1924, NSP-2320.

68. Reno Evening Gazette, 8 February 1924; San Francisco Examiner, 9 February 1924: SanJose
Mercury Herald, 9 February 1924. ee

69. San Francisco Chronicle, 9-10 February 1924.. __
70. Turner to Chief of Chemical Warfare Service, February 1924, NSP-2320.

71. Reno Evening Gazette, 8 February 1924: San Francisco Chronicle, 9 February 1924; .

Gardnerville Record-Courier, 15 February 1924.

72. Young China, 5 February 1924: New York Times , 8 February 1924; Literary Digest, | March
1924. :

73. San Jose Mercury Herald, 9 February 1924.

74. Nevada, State Prison, Warden, Biennial Report, 1 923-1924, p. 4; Literary Digest. 1 March
1924. ,

75. San Francisco Call and Post, 9 February 1924; LC. Owen, **Lethal Gas Law Holds in

76. Carson City Daily Appeal. 21 May 1926; Lillard, Desert Challenge, pp. 39-40. The account

in Scrugham, Nevada: A Narrative of the C onquest of a Frontier Land, 1:549, n. 5, incorrectly

states that the Jukich execution was the first in which lethal gas was used.

77. Bob Smith, ** Young Slayer Smiles, Winks at Execution,”* Vevada State Journal, 24 August
1961. .

78. Luman H. Long, ed.. World Almanac and Book of Facts, 1971 (New York: Newspaper
Enterprise Association, Inc., 1970), p. 79.

79. Consult Bedau, Death Penalty in America. Eugene B. Block. dnd May God Have Mere
2 The Case Against Capital Punishment (San Francisco: Fearon Publishers, 1962): James Avery

Joyee. Capital Punishment: A World View (New York: Thomas Nelson and Sons, 1961): James A.

McCatterty. ed.. Cupital Punishment (Chicago and New York: Aldine- Atherton, Inc.. 1972); and
Thorsten Sellin, ed.. Capital Punishment (New York: Harper and Row, Publishers, 1967).

ns “ amt

* é : 2 oe. &
106 Nevada Historical Society Quarterly

80. José M. Ferrer, III, ‘*The Death Penalty: Cruel and Unusual?"’, Time, 24 January 1972; U.S.

. News and World Report, 31 January, 1972; KL VX, ‘A Deadly Diternma, videotape, Las Vegas,

Nev., August 1973. _

81. Newsweek, 10 July 1972; Time, 10 July 1972; U.S. oe ws and World Report, 10 July 1972:
82. Newsiveek, 18 December 1972.

83. U.S. News and W ‘orld Re port, 4 December 1972.

84. Ibid., 10 July 1972. During the early years of the 1960s, there were attempts in Nevada to
change the state’s capital punishment law,.and to give the governor sole power to commute death
sentences. The efforts were not successful. See Lester D. Summerfield, ‘‘For the Death Penalty,’
Nevada State Bar Journal’ 25 (July 1960): 105-118; Charles E. Springer, ‘‘Against the Death
Penalty,"” Nevada State Bar Journal 25 (October 1960): 210-215; and Joe Digles, ‘‘Sawyer’s
Plan: Execution Law Change Sought,’’ Las Vegas Review-Journal, 24 August 1961.

85.. KLVX, ‘tA Deadly Dilemma.”

86. ° Nevada, Nevada Statutes 2 (1973): ch. 798, pp. 1,801 — 1,807.

4
.
.*

Change The Date From November

2 to November 3, 1863.

- by William C. Miller os

LIKE E. B. WHITE who scurried around, compulsively, straightening pictu
aslant and rugs awry, I must change a date from November 2 to November
1863, an inconsequential thing; for November 3, not November 2, 1863, v
the date of the first meeting of the delegates who assembled in Carson Ci
Nevada Territory, to ‘‘prepare and frame a Constitution for the State
Washoe.”’ Historically nothing but the date would be changed. Of course
erratum sheet would have to be printed and inserted in: (1) Myron Ange
History of Nevada, 1881, calling attention to the-error on p. 81; (2) Hub

. Howe Bancroft’s History of Nevada, Colorado, and Wyoming, 1890, the er

occurring on p. 178; (3) Thomas Wren’s 4 History of the State of Nevada, 19
p. 65; (4) Sam P. Davis’s History of Nevada, 1913, p. 193; (5) James
Scrugham’s Nevada, 1935, p. 191; (6) Effie Mona Mack's Nevada, 1936,
250; (7) Effie Mona Mack and Byrd Wall Sawyer’s Here 1s Nevada, 1965,
78; (8) John Koontz’s Political History of Nevada, 1965, p. 78; and (9) Russ
R. Elliott’s History of Nevada, 1973, p. 78. But one standard work, James
Hulse’s The Nevada Adventure, 1972, avoids the error; it cites the year on
And why not? Think of all the erratum sheets that need not be printed.
But the historian likes specificity, right or wrong. Those in error—especiz
the historians after 1904—should have challenged Angel and Bancroft, rega
less of what they thought of Wren. Challenging primary sources were availa

William C. Miller is Professor of Speech and Drama Emeritus at the University of Nevada, Re
He was the first editor of the Nevada Historical Society Quarterly. Mr. Miller's articles F
appeared in the Nevada Historical Society Quarterly, California Historical Society Quarte
American Literature, The Twainian, and the Mark Twain Jounal. He ws-cocditorot Letters f
Nevada Territory, 1861-1862. and Reports of the 1863 Constitutional Convention of the Terr:
of Nevada.

162 EXECUTIONS

state. Many easterners still felt that Boyle’s state was
composed mainly of the lawless, rootless flotsam follow-
ing in the backwash of a gold rush that had made a few
men rich and had brought violent death to many hun-
dreds more.

Clearly, one way to bring Nevada’s newly civilized
status to the attention of the country would be to stop
shooting and hanging people, either illegally or legally.
The state legislature, sitting in 1921, could not agree
whether to abolish completely the death penalty or to
substitute some ameliorative form of execution in capital
cases. Electrocution was considered, but it was thought
to be little better than hanging; finally, a suggestion was
put forth proposing what surely must remain as one of
the most fatuous solutions to the problem of capital
punishment in the annals of American jurisprudence.

Why not, the Nevada lawmakers asked, simply let
se condemned man retire in his cell for the night, in-
_ troduce a death dealing’ gas while he slept, and thus
; painlessly put him to eternal rest? Incredibly, the legis-
lature passed a bill to this effect, and Governor Boyle,
an intelligent man and an honest opponent of the death
penalty, quickly signed it, feeling that he had, in effect,
outlawed capital punishment by the simple method of
rendering its implementation impossible.

The new statute had to wait an unusually lengthy,
law-abiding two years until Gee Jon was found guilty of
murder and sentenced to death. As the governor had
surmised, the intricacies of introducing lethal gas into

Lethal Gas - 163

an ordinary cell proved too difficult for the public execu-
tioner to master and, short of evacuating the entire town,
it appeared that Gee Jon was destined to live by default.
In a surprise move the Supreme Court of Nevada
shortened Jon’s odds by declaring the gas execution bill
valid and ordering that the sentence be carried out. A |
makeshift structure was hurriedly built and rendered
air-tight and, on February 8, 1924, in what one Nevada
ne waep hailed as “one step further from the savage
state,” Gee Jon was executed by the inhalation of cya-
nide gas.

The intimate details of the manner of Gee Jon’s
death remain obscure; they could not have differed too
much from the more than adequate descriptions provided
us by today’s well-publicized lethal gas executions. The
present day mechanical preparations, while perhaps a
little more elaborate than in the Nevada of the early
twenties, are not without interest. .

On the morning of an execution the official execu-
tioner brings one pound of cyanide pellets to a specially
constructed “mix” room adjacent to the death chamber.
He carefully tues the sixteen cyanide pellets in a gauze
sack, carries the sack into the glass enclosed, air-tight
“chair” room, and suspends it on a small metal hook
beneath the death chair itself. A few minutes before the

- condemned enters the chamber the executioner in the

“mix” room combines sulfuric acid with a gallon of
distilled water and lets the mixture stand in a jar con-
nected by tube to a shallow pan under the death seat.

13. AM,
= LETHAL GAS

A hot, desert wind sent sliding wisps of sand
skimming along the cobbled streets on the outskirts of
Carson City, Nevada. The sand, pausing to whirl play-
fully against a sunbaked, pitted adobe wall, made its

way down the main street to the state capitol court-—

house and lodged itself in dry rivulets at the base of the
granite steps.

The courthouse, a three-story sandstone building
that could have been a suburban school in a larger city,
stood well back from the main street; a small crowd of
curious people kept glancing at a barred window in the
right hand corner of the top floor, then returning to
their murmured conversations.

Not too many years before that day, the gathering

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Lethal Gas 161

crowd mighz well have been a lynch mob seeking quick
justice for a claim jumper or a mule thief, and it wasn’t
too difficult to imagine the sheriff, shotgun cradled in
his arms and long barrelled revolver jammed in his belt,
standing at the top of the broad steps urging the towns-
people to disperse.

The man who stood on the springs of the simple
army cot inside the third floor cell, peering through the
high window, looked down at the increasingly large
knot of citizens with no such fear in his heart. He was,
in point of fact, happy to see them.

Gee Jon, an innocuous looking, mild mannered
little man of mixed blood, had been found guilty of
murder, and was being held in the Carson City Court-
house under sentence of death. They hanged people in
the State of Nevada, but Gee Jon knew—although he
did not fully comprehend the circumstances—that he
was the center of a great controversy involving his own
life and death. He could not know, as he stretched his
small frame to squint into the brilliant rays of the desert
sun, that he would become the first man to be executed

by a lethal dose of cyanide gas; it is doubtful if he had.

even heard of sucha possibility.
They—the people who would. decide Gee" Ton’ s
fate—included Governor Emmet Boyle of Nevada-'The

governor accurately reflected the mood of the court-

house crowd in his desire to reverse a national trend
toward capital punishment and, more than incidentally,
to change Nevada’s image as a freewheeling frontier

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' the bdit whieh te ehoat in te intrndd,
cod in the Nevads Aawembiy by Hon.
soba Guntigg, of thie Coanty I
acoms 19 B82 thatthe pregened reduc
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‘ B- doatt the rent of the Ceunty det.
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the (az psyers va sate in pura

seh jeet,

We are very mach rbliged for the
~ forge beaten of deerumenia sent py i
eur Democrat ia Repro iad t vem during
the prreent term of ihe Neved« Legian
lature, There are 8 few penile jar |
voters) el itt in Nye whe seid ike |
( be. informed of whet bee been |
trenapiring ihere.

Tn the iteers im tent wenk’a Covatxa |
Grorerning Kate achrel aemege, read {
senianuaal for biennial and $2.49 par
@oneue child ingtead of $419. The
Bitekee were aut Mr Sirvi: berger’ s,

‘The queatian uf how are. yoo gring
* € the masquerade ball is agitating the |
wind at irippere om the ligtt fowtaniie |
ef the town of Brimont avd the
Coamy ot Spe. *

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deen ably detected and Beoetdand é

leis Ural was tonad gaiti7 ae chatgod.
Doce der 4 judgmesa for murter was
ad, aod a warrant far the execution

save ibe Bussg af Pardous commute
the eemtence te inprincnansns tar life
Rialto AR eee STS

on the Jird ineten(, Seerif Ham phewy
sad Dr, J.J. Calleham ‘emitted the
Jat wo bring ihe evmdemusd ous for
serene; 6 aviary of only a few me-
Susie oocurted owing t@ bie reiuat-
aqsz 2 seuss foreard;z xo 5 ne wae
he. append tu the .asrthdur:.al the
Jeil where tue denth warrant was
fread; af this ime be was weeping

aahed fur @ Unek Whack was given,
and iaimediaiely Ris arose ptnrsed. |
Heo ies Haiked Letuvoe ihe Sineril
aud Uomsiebie sad eputy sworul Late,
weit te ihe gailews. Arriving tues
he salted permeate tatail tu ite Ii
siewe wiw hed Lee permitied tu
witness ihe execute. Tis having
ews granted, be widromed thea is
Simalwee, bud whajerer be way lave

j went of eeard, be wet with = lew re

sputiews Grou sume of Sie Jodie
sputisians—aua, let it ‘be abt, “ere
porlrotiy Quist ebd order!y, Bitineresg ta
eovk une as edinitied’ wae varcialiy
watched, vuly (wh of siuw bad tu
be diwarmed Afiec being tuid thet he
Bad oaly wu its iesiee Heeaget, the Oure-
mruved taiking is Hugiien, u betug «
fecha: of bis temtuneny un the tia

At 21d the primper was placed iu

i pomittom = =‘Thees Guus adjusted, “the

op drawn over bis bead ast at 3.1
tee dup foil Whee the exe emughi
‘the. pera of tye quademoacd siau,
§ wes fraund that zibe now bad slips

of the Meare uf Nevada, has ur thenks | ped under the oar je the pack af
tars ropy of nie biennial eepuPt int | ine ahek, but the fall bad alcomty die
the niasieeatb and iwentieh Mevel Peaint be the seek, aud nut one pes
‘ muds motion af hand vt limb wan
* Beth Honan of the Logisiatare have | smerved. The puice of the executed
grenied Lar, W. 4. Besdem @ atx : 5
| if tenth’ jours af -aheenes from the a ae <
sk ® 4 bie oh flee. In one minute ~ 170.
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| - the apperianity of seeing ic. _tncight © LL.
«
There {a ehinriding being done in Pe, forcsian = socio” OO
wine of the mines of Laat Beiimnt, Re OE ere pee:
In eleven 4 oo Lom
_ The wearher.enatinues csid aud Bin Chet e ee eccee ES
eiear, . Tr 1t§ ae putew
—EEs In fourteen pronvaneed dead,

_taslert.

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the gi of (awe wher deve enmet hing
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BM es on gem, TS hee by he Logis
tere Gummo” Wake Pine Comat 9
W920 to setuid te Courteous and
dali.

And whet ewnes sext on the aweet
Charity Pound?

Of enarse, Linenis County wiih ite
“Sadly” compeaard= Gusness; next
Crerehlii @iineat a Coerthouse, with
ute and withous @ secherii hoow,
Chee pt thut ihera owe gard neuen bes)
furetehed. a athosithouss thet is 8
‘Medel fer the Stgte: and Nyro County,
one of the poorest’ of alt, wants $1¢.-
008 fer ita Geneorsi Fund. _

We veel kaow something more
about that fire before we can ony that
‘hie chart y was imentty bectawed. r

: : * : es

-- "The tear Rapa ditens Convention ef
Nye County passed the fut! towing
: Reeetuting :. P

4 #&P Reavi ved, ‘Thar im theapinion af this
Coarention ile salary of the Anewesoe

at Nye Cadary hac teem placed on

+ €0d allot Jaimiuncy 1, 1685, ab w Bante
we low thet no. eapahis man cam be |

found we atest fig ofhee and that |
OUF repreeentatives of wierted, be ati |
Ors herehs insirneied im une thoi? in
scenes ja (ee Lensincore in here the
Salary ree aie! at ong ak Me present

Syure $2,000 gor vear’

In BOPer damon wii fhe ahoye enn

3 Wand ger Srisior ‘Mo. M hai

_. inteedoret ~ Wil, okie uae
Brnada by a gon 8 orm yens Sane ‘ia
hist. hee sete oy:

oe Aman By.

and asher hanging sights minnie<
fener, @ac cul doan aud fa tweniy-
sig migates (he bedy wae ow, ts way
te the gtave. As an execition if hae

\ Bever heen exon iat by banding.

Thin fs the Gree facietal axequtinn
tan Indian b3 ftom fe thie Shale,
The ¢2}=m=e@ a ape maaan tee.
the County le pror—ie i not ia neder
fet memiere iw the Legmiatnre in aay
foe a pre rata retthbarsing domaine?
I. jo safe tm may thet this ereenution
hae heen worth more fie the peotes
thom of Hite then all the decteinae of alt
(ne Sepreme Courta of ali the Sates
under existisg laws. This le am ne
Gest free of the decieinn of car
Sugreme Coart in the conse w hieb, for
brerity, we witl syle Sate of
Sereda vs. Spenieh Jim, Tudian.
We will wet_critietee Lhe htecininn of
the Court iw that case bet'sin ner heel.
late in way thet t was heme? epne Lae
damaanie law, and a8 & conmequence
five Indian murders were. committed
in thie vieini:y within sa many week»
thereafter, and within as = meny
montha thle murderer's victim was
kiliedone Imiiaw hae Henn emnd to
the Pesventiary fer ten years from
White Pioe Coanty foe man Nangtrter,
and qummitted within that Bre, and
one ie waiting an appearance before
the next Grand Jury of this Onan y4
tee the alleged marder of BE. Lamb
nvar White River. :
The irarmeciiate effeet of thet deeia
inn Waeate makerbe Indiana af this
vicinty believe that they could rave,
roe, end murder with tapraity. i:
ia beileved thet the hamedinie off-os
of this ezecuiida will prove mors.
miwtary than the Saprema OCnart

: i Sb bier ites:

Qecimon te whies we bere referred.

As 2eevucrsac yl tiem ph wae uae to |

+l omy thar dinewnt ing. Tew hem be aii
tomar and frame give for their ice |
stégment ang moral euurses,

Poseit, . The ext Louielovere wit |
reguigte “ew owa astions #1 ks sag.
whiten Visite, wawieder tae Pees

Mr. Foley Is che shesrent buncaube,

a an

dian 06 enie laid weed, So may we
acid with the following grtd backing
| from the Rees G-aetio; The seigrinns |
| af jedgue wmter the propiend district
ing would he $23.509 and in midision |
[2 he Set ee: eee emo coe |
Camart oman me jaatomers. a9 in direns tex:
silen, which atc-d te the asiarion o¢
the Jadg~s weaid amoent to ike saa

steed exefciee due care anid cunsiier
beth fa merits and demarka, Ware
We to mivisa, {98 would sey thet Laure
should Be na haat y actiowin « peter
im pertemt, that the arises

, sanuid have a special hearing, ang
that every of suc aa importaad
change Le bly dlecuneed. }

The mitries of the Jodges ander the
propemed didriciing woutd be $23,

jhe fone of toarteen Court commision.
ora, an imdireet tazailn, thick aedhided
te the saleries of the Judges wonld
amount to (he same asin new pa io!

Ne Jydgea in the secon Judirial die

trietiPagsregaiing the »um of $24,000.
We fa? where the rvtrench aiwet
men in,

We Wa been asked for the Pntlow
Liew alah iad len ¢ es

The mumier &f murders ia the
Deited Mates daring 1634 waa 3,997.
Or4 313 were wiymerion= and re
walned as, Forty ehh! children sere
Milled bwitetr paredia, 53 wires ware

bande by theie wires; Only 193 legal
“Kerutinne ‘ne murder Weearred. tie’ |
219 deagiegs are reported,

Beate Cum‘ rniler Halloek fa hie re
pert i@ the fogisiature sepa: Toe
thate.ald Nevmia instead of being hank
rupt, owes ne man ner carporsiion «
dediar, and tis eee futike same
| wher Niates, et baie hawked
Fabwnt the 9 are prompily
paid on presen ie

a,
inn.

sa.

a
Wo beileve that dearly ai) our som

towing teen

Ui cents $296 a dey to pay the Logie
jainee and attaches now in Caren,

Will some one of then please aoe
ie wut?

_ at the Preeent wriing there ia a
Sead lows in the Calilnenia and Oregon
Sate Benetee While aeme of the re
calelirante manifest a destre to, join
the Kepubticane, 1% is hoped ther aii
partion will preserve theic aatoqomy.

Gearge M-ady, of Regie Vailey.witt
«town 96 1@ prove en the iat of Febra-
ary, thet the tania are ant ail deat, by
~ating nine pies nf the usual diene
come, whheat ———— te eet bie
mond wind.

In the ‘mninsted, slection cane of
Paimer (Rep) ea. Byrne (Dem) in the
hommidy & was deehted that Byrene,
the ehting member, waa entitled to
the sett, Witheet dowbt thie was
correct. :

. The femmes piscine vote cath from
EKnreke has been. reporied upen ad-
versely, 20d by motion of the gentle
man (Mr. Déennia) whe jatroduced ft
now lise apna the Beanie tabie,

The ** latent thing om ' im the way |
of something tr afford home amas
iment for winter evenings, er a side
show for ehurch faire, consiete of 2
wrt of Magic Laaiern thet deean't re
qite pleturun om giaes, The Polyep-
titan, on 1 is called heeuwee tt will
show ap ao many different things,
wakes ue af ordinary mews aper ple-
meres, family phetegrapiva, chrome
vada, home made skeienes, ete, ent
thas affords e new mee far the sole.

x |

Twig | t
onmen ste Marker, Minty, Regain wad |

| eh ree may te, aed is apparel cle |

jas 2 new paid the jJodges in ihe seren |
Peeeieij, aunt nem pusew mind ob ive, | justictal divtricta, Rex regatitig the ome |
Ai Line miwcinelen OF tie. fending we j of $34.500.° The Sadiciary Camminice

$00 and fa additvom to thie wonld be:

Killed by thelr husbamte, and 12 huse-4

Om prrarion sive grthority to the fol. :

{
Ce cm cre, evade,

SeseTS FotSs.
i Mr. Dennis pramented petitios free,
jas payers of Dike coum y Bide re Le
i er diem com pansion fae Grand and

Triad Jurer, aod wigseeswe ia aria

Se Seite ne r ff te J atie
on 5 wary 23; ish, | | eat Sho, dacradiactice of thie resale. | real cunge, Referred te Jatisiery
then be an forigtne & Cees it ot imal it ag

Corsten tar 13 ig

Mr. Weeteetjedd aieniaaied Sonate

hoe
teiem and referred to Commies on
Put la Landa :
My, Downie inteadaced Sor eta Qi!
an Act pore fully dwiineng |
the pewers cf Fagerta of the State
rorsiiy, Teed tion and reierred
14s Chenentiton si Silieesaton: ts
- Me. Saag ee be mertcmmeet: — Rpereee

at, 3a. 17. 42 Act te repeni mu
Act optitied “As dot wapplental te a9
Act ts provide revenues for the Santa
;Guvernmnent.’* Baad twire and be
ited io Comenitiiw-on Ways aad
' Meeen, 4
Senate Bill, Mo. 1% relative te ving.
(nme, wee reed © third time and ar ai
¥ i4 youre,

| 7escie 0. nmi Ow jrins

id «2
ore 2G

Jomen found tn hare 6 majority af

the vatos och Hoare sind he wp
olowtod.,

Mr. lat rnd goed Senate Bill,

Ne, 16. Aw Act to emend an Act de
faing the rights of hespaad and wife,

Mr.
Bill, Ne, i9, Aw Act to provide fur
inl destruetion ef sozioas asimais
wibin thie Siete, Read twice tog re
(forced to Committawen Agricultara.

Mr. Briggs intvodsesd Senate BIN,
Ne. 2). A® Act to repesl Section 9 of
an Act to gomeniicsia and fund the in-
dettedoem of White Pine County,
Approved Maren 7, 1883. Reed ibree
times and passed eaanimousiy.
+ Mr. Markee Mu redeced Senase. Bill,
No, 21. Aa Act tm reciaha arabie
desert lands and develope the ‘agricul.
lure) resnarces of the Stats. Read
iwies and referred te Commities on
Asreu)tare,

Mr. Briggs intial Senate Bill,

of ardent apirits (oIndiena.

Awmemiiy Bill. Ne. 2 An Act to
astherige Lander Connty to teed aix
percent boades for the purpras ef te
leemiog the obGtanding tem per reat
R, KR. pands.-

Mr. Mame intenduced Senate Bill,
Ne. Il. An Act im reistion ta the eal.
ary e€ Cugnty; Asssesors wae rend a
third tine aed paseed anaaiimoualy.

Cutting Down Salaries,

‘The fnijnwing tas enpy of « bit cat.
ting dows the sslariee of Cuenty
Oficers of Nys, and Assembiyman
j Jute Gooding has given natieos (hat he
will introioce in the rs
ovuue fuiare Gey:

A™M ACT
Fizing the salary and compensation
nf the seversi County Oficers of Nye
Coant s, aud mratrers reiating therete,
The peaple of the Sate nt Merada,

in Se aad Ameabiy
do enact an foijosd:
Segtion L. Frow snd afer the Gret

Menday ja Margh, A. D, sighteon
burdred and eighty five (1685) the
folowing ramet ficers of Nye
Pi Aa reveive in adriting ta

fear amt! cemnzissinns as provited

i ja4, the fuliowing monthly sslary:

Jatier, shail reesive seventy doilace
per monih, in fail fer al! qesimance
require? te him for the praper care
and guarding of the prigucers in the
Jail, ‘ .

The Covey Clerk shall reesdem fac
alb services required by him as Clerk,
of the Board of County Cpnenign-
ere, twenty dollars.

The Coanty Treasorer shell receive
mereanty -five doliaes,

‘ The Distries Attorney shall resaive
goventy.five @uiiare.

The Coowty Aattor -ehali meen
fifty dollars,

The Soperintendent of Schools shall
receive Sifieen doliara,

The Amennr mse receive one has
Arad dnitare,

The Connty Pnisaicibiegsks shall
each receive tweniy deitara, but in na
ease ebail the salary and mileage for
rach of ther hree oxcoed three hundred
i iace per annum,

Section 2. The afpeweaid. salarion
and gempensetion ahail he adited,
allowed and paid Ya the «ame manner,
on ihe serricgs ware, prieg to the prar

tren of pretly canie weiel so many
have teen ae todaw rio
Theagh paten-ad, i ean te wate sevd |
rid at mae fourth tine psecie oo
PMagie Lantern,

Descriptive etroaiars om bo
od the Murray Hull Po:
120 Ham Teenty-oig*:
Tort Cap .

tei om ong. |

HR pete
3

and wight? one, a
or

SUBSCRIBE |

iTreR Tur

URTER

23 ‘?

Gatiegher intraduced Senate |

Ne. 23. An Act ta prohibit the ssie}

;

bein Hownen Het. . 4. PF

A. D. ane theanend eight bundred |’

Te, witt toh: she anon ak at conas Pi, Mo 15, - Aa Act (a encournge the)
ponigtore birne, sud be buried anking of grieving weiis to secare a
siongride of the An ‘smandwg tee {tos of weier jor j

‘ke cetasiteall ‘wong Set wibeaties

wnt eerefaity enieetod slack af rary <ba*
Taamsty |

Grocéties ‘and Provisioc:

\CIGARS and

Centiemen’s Fine

TOSATE.S

Fur-
nishing Cocde,

HZANWDEEBRCHIZEYFS

Tollet Articles,’

* *
+ Perfumery, eto.

Pocket Cutlery,

Hardware,

MINING SUPPLIES

The Kheriff, in |eq of services as!

Extensive Line of Genuine

STOCKER AND

res

e.g # a | ae a ee
A fair share of pubile pa

og naretomnenedrareig shen anna tteman sa Senate em

MeerschauntGoeds -

~*%

WARBURTON

tronage is sollcited.

162 EXECUTIONS

Clearly, one way to bring Nevada’s newly civilized

status to the attention of the country would be to stop
shooting and hanging people, either illegally or legally.
The state legislature, sitting in 1921, could not agree

whether to abolish completely the death penalty or to |

substitute some ameliorative form of execution in capital
cases. Electrocution was considered, but it was thought
to be little better than hanging; finally, a suggestion was
put forth proposing what surely must remain as one of
the most fatuous solutions to the problem of capital
ee in the annals of American jurisprudence.

_ Why not, the Nevada lawmakers asked, simply let
the condemned man retire in his cell for the night, in-

_troduce a death dealing gas while he slept, and thus”

painlessly put him to eternal rest? Incredibly, the legis-
lature passed a bill to this effect, and Governor Boyle,
an intelligent man and an honest opponent of the death
penalty, quickly signed it, feeling that he had, in effect,

outlawed capital punishment by the simple method of

rendering its implementation impossible. |

Lethal Gas a 163

an ordinary cell proved too difficult for the public execu-
tioner to master and, short of evacuating the entire town,
it appeared that Gee Jon was destined to live by default.
In a surprise move the Supreme Court of Nevada
shortened Jon’s odds by declaring the gas execution bill
valid and ordering that the sentence be carried out. A.
makeshift structure was hurriedly built and rendered
air-tight and, on February 8, 1924, in what one Nevada
newspaper hailed as “one step further from the savage
state,” Gee Jon was executed by the inhalation of cya-_

_ nide gas.

The intimate details of the manner of Gee Jon’s
death remain obscure; they could not have differed too
much from the more than adequate descriptions provided
us by today’s well-publicized lethal gas executions. The
present day mechanical preparations, while perhaps a
little more elaborate than ‘in the Nevada of the early
twenties, are not without interest. _

On the morning of an execution the amieul execu-
tioner brings one pound of cyanide pellets to a specially
constructed ‘‘mix” room adjacent to the death chamber.
He carefully ties the sixteen cyanide pellets i in a gauze
sack, carries the sack into the glass enclosed, air-tight
“chair”. room, and suspends it on a small metal hook —
beneath the death chair itself. A few minutes before the

condemned ehters the ‘chamber the executioner in the

“mix” room combines sulfuric acid with a gallon of
distilled water and lets the mixture stand in a jar con-
nected by tube to a shallow pan under the death seat.

13. AM,
LETHAL GAS

way down the main street to the state capitol court- -

house and lodged itself in dry rivulets at the base of the
granite steps; er ote
The courthouse, a three-story sandstone building

that could have been a suburban school in a larger city,

stood well back from the main street; a small crowd of
curious people kept glancing at a barred window in the

right hand corner of the top floor, then returning to

their murmured conversations.
Not too many years before that day, the gathering

Bo eee th rl. ar Sere TTT erry eal) coe Pere NO Md! EMG DHS OK AS 2 PANN ss Ma. 4

SskODRARS SASS eRNeRS) LANA yes MMMM EEN eESRUSEE NGS. ree

Lethal Gas 161

crowd might well have been a lynch mob seeking quick
justice for a claim jumper or a mule thief, and it wasn’t
too difficult to imagine the sheriff, shotgun cradled in
his arms and long barrelled revolver jammed in his belt,
standing at the top of the broad steps urging the towns-
people to disperse. | .

life and death. He could not know, as he stretched: his

small frame to squint into the brilliant rays of the desert
sun, that he would become the first man to be executed.

ener

by a lethal dose of cyanide gas; it is doubtful if he had

even heard of such a possibility. Cyl aeSe

They—the people who would. decide Gee’ Jon’s —
fate—included Governor. Emmet Boyle of Nevada<’The
governor accurately reflected the mood of the court-
house crowd in his desire to reverse a national trend
toward capital punishment and, more than incidentally,
to change Nevada’s image as a freewheeling frontier

corrals and
Carpenter,
came back.
‘e the men

, the three
ir cars; he
i his gun.
k-up,” said
who had
they didn’t
n down for
one. I took
asn’t a hell
I took them
em walking
was to tie

, there was
: have lived
in the little
‘ed there tie
there aftet

ap when he
d I shot him
‘oor and one
Help, oh my

1 of them.

ppened after
and covered
making any
ind put some
vent out onto
ne along and

> Reno, and
- until 10:30;
ind got some
a shave and
I got into a
my money. I
- while I was
iperator must

cident of his
in extenuation
been drinking
e out of the

: unbelievable
d was almost
» hope that a
ild be made to
he utter futili-

beer-guzzling
‘staurant with-
taken the lives
. single excuse
<ing.”

val thing to the
aed to the con-
been so brazen
3in and crime.
+; one of those
wv and then into
who has no re-

his weird story
: Luther Jones
id then begged
out of town be-
hat he had done.
ig the door and
Sheriff Harper.
your own class,
dirty hide; quit
your cell.”

vith which. Sher-

iff Harper shoved the quadruple killer

along the corridor to the steel cage where

he was to stay until he was brought up
to plead.

A day or so passed before Luther Jones
faced Judge James Dysart; to the utter
amazement of Sheriff Harper, who had
made a “horse trade” with the violent-
tempered Basques, promising that the killer
would plead guilty and be speedily exe-
cuted, Luther Jones pleaded “Not Guilty.”

He now said he had knowledge of the
killings but that Heitman, Godecke and
Arrascada had been killed by a “pal” to:
whom he had loaned his gun, which had
Jater been returned to him. Nobody be-
lieved the. preposterous story which Jones
had set up merely as an excuse to gain
time, but it meant a trial would have to
be held. Attorney C. B. Tapscott, of Elko,
over his vigorous protest; was ordered by
Judge Dysart to defend the killer.

Luther Jones is destined to end a career
of crime begun as an 18-year-old Hoosier
lad, in Marion, Indiana, where he was first
convicted of petty larceny, in the lethal
gas chamber of the state penitentiary at
Carson City. ;

Ballistic experts have already determined
that the gun taken from Jones by Officer
Thornton is the one with which the four,
men were slaughtered, that fourth man
having been identified as old John Elias, a
harmless sheep-shearer, many years a resi-
dent of the willows; he wouldn’t have
harmed a flea in the wool he cut, but the
Elko killer shot him down.

It also became evident when Luther
Jones’ career was trailed backward, that
he had come out of the Montana State
Penitentiary on October 9th, intent upon
pulling a big job; he had graduated into
big time crime he thought. Hadn’t Bill
Mahan, a graduate from that same institu-
tion, managed to extract $200,000 from the.
Weyerhaeuser family for the return of
their 12-year-old child? Mahan had been
caught, but that was Mahan’s mistake, and
one that Luther Jones felt he was too
smart to make. .

Through -the years he had served sen-
tences in many jails, reformatories and
penitentiaries ; he didn’t intend to be caught
again.

From Deer Lodge, when the gates of the
penitentiary closed behind him on that
bright October day, Luther Jones had gone
Straight to Blackfoot, Idaho, where he
added a few dollars to the meager store:
received from the warden, by begging $5
from the mother of a lad he had met in
prison. But even, this was not enough for
the purpose he had in mind, so he paused
in Pocatello, Idaho, long enough to, forge
$24.20 in checks, and with these he bought
some toys, consisting of 20 feet of small
rope, a butcher knife, the .22° target pistol
and an electric iron,

OU could hold up a man or a woman

or a child with a .22 pistol; you could
bind them with the rope; you could scare
them with the keen edge of the knife and a
hot electric iron applied to the soles of a
man’s feet ought to make him “come
through.” Luther Jones was all set for a
kidnapping.

On to Ogden and the next thing he need-
ed—a car. He got that through kidnapping
LeVon: Neal. But, even though it was a
new car, it balked at the nefarious purpose

AMERICAN DETECTIVE

to which it was no doubt to be put and so
his plans went awry, before he reached the
victim he had selected, somewhere far
from:the place where he had been released
and from the place where he had bought
his playthings of crime—the rope, the
knife,‘ the gun, the iron.

But ‘just when the world seemed darkest
and all had been lost, Luther Jones spotted
three affluent appearing men in the stock-
yards at the edge of the town. He waited,
watched and:hoped. Opportunity comes
to those who wait; when his came he
grasped it with a singleness of purpose
seldom equaled in any business, much less,
murder.

él

in the humble shack and Luther Jones’
great scheme was reduced to the dashes of
four murders for $40.

Justice moved swiftly in that Nevada
city, and on November 18th, the 32-year-
old ex-convict was convicted of murder and
sentenced to death. The jury deliberated
only 35 minutes.

-Yet another chapter to the story seems
inevitable; it will be finished when the
little cyanide eggs roll down the trough
into the acid which will release the deadly
gas throughout the glass room in which
Luther Jones sits rigidly at attention await-
ing. the little whiff of banana oil scent
which will tell him that he has come at

Everyone departed except the three men,
so Jones stuck them up. Then he couldn’t
get a car key; that was bad. He was angry
now; he commanded the men to march and
into the willows ahead of him they went.
He would tie them up and hold them for
a quick collection of ransom. He reached
the hut; it was ideal for his purposes but
here again, as it so often does, fate stepped
in; John Elias, the sheepherder, was at
home. ©

Old John didn’t like the looks of things ;
he started a fight; again and again the

little gun. spoke until four men lay dead

Luther Jones

last to the end of his murderous string.
That will probably happen along about
the time when the grass is green again and

the broad Nevada prairies are sweet with —

the smell of spring; Luther. Jones will have
then even more cause to hate that lethal
chamber about which he inquired so bland-
ly in Carlin that night in October when
Thornton disarmed him and his last chance
at being a free man again flickered away.
But, back in Carson Valley, and among
the Basques of Elko County, they ask to-
day: What Price Parole?
Tue Enp

of three Nevada
G-Men arrested

NV& (Elko) January 26, XMBR@X 1937.

a fi Tal Se ae
staring ose “a mn i
ruthlessly slew four mew for.

in a gambling ein

bbtos sical. [re Wie Pew 7) © Vey a omy At YT VOA YY TY 3 VER

Pallid Kidnaper and —

By Detective Sergeant C. K. KEETER

of the Ogden, Utah, police department
as told to JACK DeWITT

Wee a

See

The abduction of a cab driver in Utah and the disappearance of three Nevada
stockimen bad little connection until police of tyo states and the G-Men arrested

a wild-eyed gambler .

DARING DETECTIVE, Aucust, 1937

etd 4

cas Ss aay

Wt TP)

Bea 6 a tac Sas

ET ex

5h ek eats MA apna chen

before he met death.

of seeing the three cattlemen near the
corrals and with them a fourth man, He
had observed them casually. But soon
he thought it was strange when -he
looked that way again, that all four
were out of sight. As the day wore on
Lynch had noticed the cars near the
cattle corrals but had seen nothing of
their owners.

The cattlemen and their companion
were then presumed to have gone to the
hills to look at stock. The sheriff phoned
to neighboring ranches without success.
Horses would be needed if the men had
gone very far from the railroad yards,-
and no one had seen the men riding.
Neither was there any sign around the
cars or corrals that horses had been
brought there. The cattlemen could not
have walked back to town without being
recognized, especially near the railway
station buildings which they must have
passed. The sheriff became disturbed and
widened his inquiries.

It was pointed out that the cattlemen
might have taken a train to some distant
cow town to look over stock, but. no
tickets had been sold for the two pas-
senger trains that left Elko that day,
one eastbound, and the other west. There
remained the freight trains, double-
engined for the stiff grades, that rattle

Interior view of the shack in which the three
cattlemen were killed. The shack owner, also
slain, ate his last meal here just a few minutes

over the El

day. But f

bered noth

travelers w!

cars. All th

| often trave

blooded sto

well known

Sheriff H

| the men hi

passenger t

a freight ca

has long si

wild gunp!

stress. Suc!

effete East.
work.

Sheriff

with each

learned tha

to the Basx

The inconspicuous black taxi, in
which the killer kidnaped an
Ogden, Utah, cab driver, is
shown below, where the driver
was forced out near Montello,
in the Nevada wilds.

Mrs. Gussie Courtney, an Ely tavern keeper, saw the mur-
derous attack from across the street. When the gunman fled,
she took after him like a bloodhound.

“Call the law!” she shrieked back at the crowd as she fol-
lowed the killer into the alley,

Some one shouted a warning—“Come back—he’ll kill you,
too!” But Mrs. Courtney didn’t turn back. From the inky
depths of the alley she heard retreating footsteps, and she
followed them with a burst of speed.

Suddenly a voice growled from the darkness: “Stop,
you ——,, or I'll drill you!”

The killer had stopped. Undoubtedly he had the weapon
which had sent one woman to her doom, leveled at the ap-
proaching figure. He was barely forty feet away.

Mrs. Courtney hesitated a moment, then flared back: “I’m
not afraid of you—you cowardly rat!” And she kept coming.
She heard the click of a
hammer as it fell upon a
dead shell. Then came the
thumping of retreating foot-
steps on the frozen ground.

Back in the Ozark hills,
as a little girl, Mrs. Court-
ney had often taken prizes
for foot racing. Once, in her
Ely tavern, she had boasted
that she could outrun any
man in the state of Nevada.
A couple of young punks
called her outside for a hun-
dred-yard race—and lost $2
apiece.

She figured that she could
easily catch the killer before
he reached the end of the
alley. She was gaining on
him. A few more steps and
she could bring him down
with a flying tackle and hold
him until help arrived.

“Stop or I’ll kill you,” the
man yelled as he ran.

UDDENLY - something
unexpected happened. A
Chinese kept five large bull-
dogs in his yard near the
rear of the old Alamo Hotel.
Excited by the chase, they
began growling and barking
like a pack of wolves,

Mrs. Courtney, who was brave enough to chase an armed
murderer down a dark alley, slowed down and stopped, terror-
stricken. Once during her childhood she had been badly bitten
by a savage dog. She had never forgotten.

The bulldogs leaped over the yard fence and, ignoring the
fleeing gunman, blocked the path of the courageous woman.
She shuddered at their vicious growls and turned back.

She ran back to the mouth of the alley, screaming for some
one to bring her a gun. Several people, including a number
of men, timidly hung back behind a brick building at the end
of the alley. Some one assured her that the officers would: be
on hand in a minute.

“In a minute!” she snorted. “In a minute that coyote will
be a mile away. If some one will get those dogs out of the
way, I’ll catch him.”

There were no volunteers.

Dr. W. G. Merrill, whose offices were in the Collins Hotel. -.

building overlooking the spot where Frances Jones had fallen,
had heard the shots in the street below. He hurried downstairs
and elbowed his way through the crowd.

“We called an ambulance,” Mrs. John Casselli, one of the
witnesses to the tragedy, informed him.

“Pa

SACK KRAMER, according to rumor, had :
once been an ardent admirer of the former ©
actress. Although friends said he had been.
elsewhere at the time of the shooting, police

wanted to talk to the elderly bachelor, —

The physician felt the woman’s pulse and shook his head.
“An ambulance will not do much good,” he said. “She is
dead.”

The news of Frances Jones’ ruthless murder spread through
Ely like wildfire. Grizzled miners, enraged by the brutal
attack, streamed from gambling houses and saloons. A few

minutes before, the din created by the free spending of four

thousand pay checks sounded like laughing thunder. Now the
din that rose over Ely had a more ominous tone. :

By the time that Marshal Henry Marriott and Sheriff J. E..
Orrock arrived, a muttering crowd of several hundred people
had gathered in the street.

The body was still bleeding and a crimson pool was spread-
ing on the frozen pavement of the gutter.

“The murderer went down the alley behind Sewell’s,” a
chorus of voices shouted to the officers.

Three deputies with drawn
guns followed Orrock and
Marriott into the alley. A
brief search convinced them
that the killer had made a
clean getaway. They looked
for footprints but found none
on the frozen ground. °

While Marriott stood over
the body and kept back the
crowd, Sheriff Orrock made
lightning moves to organize
the manhunt. After getting
a description of the slayer, he
dispatched deputies to guard
the four roads leading from
Ely to Eureka, Caliente, Mc-
Gill and Tonopah. By tele-
phone he also notified every
officer along these routes to be
on the lookout for the fugi-
tive.

The description that he
broadcast, unfortunately, was
Se ee very meager. The gunman,
according to information
which he had gleaned from
eye-witnesses,. was a_ tall,
heavy-set man wearing a dark
overcoat and a dark hat. Some
of the witnesses were certain
that they had seen him previ-
ously in Ely. Others were
certain they had not.

When Sheriff Orrock re-
turned to the crime scene, he dispersed the crowd and began
a systematic search for clues. District Attorney John Bonner,
who had been attracted by the commotion, joined him.

Near the mouth of the alley they discovered four discharged
.32-20 pistol shells and one which had not been fired. Orrock
picked them up and sniffed at them.

“They smell strongly of powder,” he said. “Evidently the
murderer emptied his gun as he fled.”

Further search turned up one other clue—a_bloodstained
slug which had ripped through the woman’s body. It had
hit the front of Sewell’s grocery store and fallen to the side-
walk. Miraculously, it. was damaged very little and showed
promise of being excellent ballistics evidence.

The next move of the officers was to assemble the eye-wit-
nesses for more thorough questioning. Mrs. Lillian Millick
and Mrs. John Casselli, who were almost within the line of
fire after the bullets passed through the victim’s body, offered
the best account.

“She was standing there in the cold—just like she was
waiting for some one,” Mrs. Casselli told the sheriff.

“Did the man quarrel with her before he opened fire?”
Orrock asked.

waa
yk
ig

_the fact that the as-

_ spot to make an at-

“He didn’t have time to do any quarreling,” she replied.
“He walked up and grabbed hold of her. It was a sort of
cave-man embrace. At first I thought he was only fooling
until he pulled out that gun and began shooting like a maniac.”

Here indeed was a baffling riddle. Whom -was the woman

waiting for? The man who killed her, or some one else ?

What was the motive behind the wanton killing? Cer-
tainly not robbery, Orrock speculated, for no attempt had been
made to molest the woman’s purse, which contained thirty-odd
dollars, or to strip several pieces of expensive jewelry from
her fallen body.

Nor was it pos-
sible to put much
credence in a purely
sex motive, despite

= pe

sassin had _ seized
the woman in his
arms before he shot
her down. A sex
fiend, the sheriff
concluded, would
pick a more isolated

tack.

That left two
other possible mo-
tives—jealousy and
revenge.

The officers were
well acquainted
with the back-
ground of the slain
woman. They knew
that her beauty and
charm had been a
powerful magnet,
through the years, to attract many men. It was
not unreasonable to suppose that one of. them had
killed her in a fit of jealous rage.

The victim’s husband, Harry B. Jones, was quickly
eliminated as a possible suspect. A fireman on a
train that carried ore from the rich copper deposits
at nearby Kimberly, he was working night-shift at
the time of his mate’s death.

When he learned of ‘the tragedy, he rushed into’
Ely. Stunned, heart-broken, and filled with hot
vengeance, he grimly told Orrock: “Tf you don’t
get your man, Sheriff, I will. And I swear before
God, if the law doesn’t deal out justice after he is
caught—I will!”

He bent over the bullet-riddled body of his wife
and held her tenderly in his arms. Obviously. he
loved her dearly, and the shock of having her taken
from him in this violent manner was almost, more
than he could bear.

ALPH MANGUM pulled up with an ambulance and the

remains were taken to the Wilson-Bates mortuary where °

Dr. Merrill, assisted by Dr. T. V. Ross, made an immediate
examination.

They found that four slugs had entered the body. Three
had passed entirely through the abdomen. The fourth had
pierced the heart and lodged within the chest cavity.

“All of the bullets struck vital organs,” they reported, “and
any one of them would have proved fatal.”

Severe powder burns, they said, indicated that the weapon

~~ ,was held only a few inches from the victim each time it was

fired.

Sheriff Orrock knew that his description of the killer was
so meager that the crime might never be solved unless he pro-
ceeded along other angles than an intensive search. Hopeful
for a lead, he closely questioned Jones.

NOVEMRER, 1940

i ape
RT a ala

: ah dogs pared her way. ne made

“Looks like jealousy or revenge,” he told him.
suspicious of any one ?”

“No,” said Jones. “I’m sure she didn’t have an enemy
in the whole town.”

“Or a lover?”

“Certainly not.”

“Has any one been making a play for her ?”

Not to his knowledge, the man replied. However, he stated
quite frankly that the woman whom he had wooed and won
three years before had been courted by numerous men previous

to their marriage. Men of Ely had sought her, as
well as many others whom she had met in her long
and colorful professional life. But if any of these
former admirers had murder in his heart, that fact
was unknown to Jones.

He was as much bewildered as the officers. It was
natural that he should be. Every one knew that his
romance with the lovely creature known to thousands
of fans as Frances Wilson was a legend. Their three
years of married life had been idyllic. It was no
secret that she had spurned the attentions of many
men of wealth to marry the man whom she loved.
Although Jones was in modest circumstances, his
rugged honesty and kindliness had won her heart.

Such a romance in a small town easily makes a
legend. A beautiful legend—the kind often encoun-
tered in fiction, but which seldom comes to life with
flesh-and-blood characters.

It was incredible, even to Sheriff Orrock, that
anyone would harm
Frances. Jones. P

He recalled when
she had first come
to Ely, from Duluth,
Minnesota, in the
early 1920's, a slen-
der, beautiful girl
who caused a sensa-
tion among the min-
ing camp’s young
swains. And the day
soon thereafter when
a talent scout had in-
vited her to Holly-
wood. He remem-
bered press dis-
patches through the
years recording the
activities of the
glamorous girl that
Ely claimed as_ its
own.

He recalled the
day many years later,
in 1932, when she re-
turned to the mining

camp where she had
Although the world was at her feet, she
“T love the
she explained simply.

“Aren’t you

‘slayer, but a pack of ;

“discovered.”
vowed that she would never leave Ely again.
deserts and the mountains of Nevada,”
“They look finer to me than anything else in all the world.”

been

In her girlhood she had trained as a nurse. Now that she
had made the decision to live in Ely permanently, she turned
to the profession that she had learned before stage lights and
movie cameras lured her around the world. In the few years
that followed, before her marriage to the railroad fireman,
many patients owed their lives to her tenderness and skill.

Who had murdered her?

That tantalizing question spurred Sheriff Orrock and his
men to work hard and fast, and their determined efforts soon
produced results.

Discreet inquiry among the victim’s intimate women friends

Tevealed that she had at least one (Continued on page 52)

“Come back,” yelled the other deputy.
“We've got to have help!”

One stood on guard while the other
summoned aid. A few minutes later the
city hall was surrounded by more than a
dozen officers. Sheriff Orrock produced
four tear gas bombs the size of baseballs.

“Tl take them,” said Neill.

He and Deputy Schloerb entered a rear
entrance and crawled up the stairway to
the second floor. They crawled over to
the porthole in the firemen’s sleeping quar-
ters and flung their tear gas bombs into
the engine room below.

They ducked back from the porthole just
in time to miss singing bullets that rattled

plaster down over their heads. They heard’

a door bang shut.

“He’s gone into the lavatory and closed
the door to escape the gas,” Neill told his
partner. “There’s another lavatory joining
that one, but it opens from the other side.
We can blast him through the wall.”

They hurried downstairs and riddled the
partition with bullet holes. No sound came
in reply. They reported to Orrock.

“We better wait and let the fumes
smoke him out,” cautioned the sheriff. “We
can’t take chances. He’s killed once—he
wouldn’t hesitate to kill again.” ‘

His decision was a wise one. They
waited patiently for nearly an hour. The
engine room remained as silent as a tomb.
It was clearing of the milky gas.

“Tll go in and get him,” said Schloerb,
breaking the tenseness.

“We'll back your play,” said Neill and
Van Volkenberg.

Schloerb smashed in a glass window
on the double doors of the engine room.
Reaching inside, he jerked the bolt. The
doors flipped outward. Crouching low, he
dashed around the fire engine and jerked
open the lavatory door. From a con-
cealed position the two other deputies had
the entrance covered. ;

“Come out with your hands up!”
Schloerb commanded.

A gun rattled out upon the floor. A
large man came crawling on his hands and
knees.

“You've got me,” he whimpered, rub-
bing his eyes. “My God, don’t shoot—
you’ve got me!” His hands covered his
face. Sheriff Orrock stepped forward,

jerked them down, and snapped on hand-. .

cuffs.

His jaw dropped as he stared in amaze-
ment, His prisoner was 60-year-old Jack
Kramer.

“You're under arrest for the murder of
Frances Jones,” said Orrock.

Kramer’s lips trembled. “You’ve made
a mistake,” he said indignantly. “I was in
a gambling house last night. I-had a drink
or two. After that I can’t remember what
happened. I woke up here in the fire
station. Last night I had over $200 on
‘me, but it’s gone. That gun—I don’t know
’ where it came from. It’s not mine.”

A_naive story, indeed. It was -smashed
to pieces within an hour when several wit-
nesses to the outrage identified him as
the killer.

The loaded gun which he surrendered
was a Spanish type revolver, .32-20 caliber
—the same caliber as the gun which had
dealt death to the luckless woman.

As a clinching bit of evidence, the of-
ficers searched his hotel room and dis-
covered a partially filled box of .32-20
cartridges.

“There’s no use lying,” Orrock told the
prisoner when he attempted to question
him in_a jail cell. “You killed her, all
right. But why?” ;

Kramer shrugged wearily. “I have noth-
ing to say,” he said as he rubbed his hands
nervously over his bald head.

Later that morning the hunted . bar-
tender walked into Orrock’s office with an

NOVEMBER, 1940

interesting comment. “I suspected that you
would be looking for me,” he said. “So
right after I heard of the shooting I
dropped from sight and started gunning
for Kramer. I knew damned well he had
killed her.”

“How did you know he killed her?”
asked Orrock.

But the bartender had nothing more to
‘say. Nor did Kramer have anything to
say regarding the motive of his callous
crime. As the weeks wore on and the day
of his trial approached, he maintained a
sullen silence.

Following the capture, lynch talk sub-
sided when Ely townsmen were assured
that the State had an open and shut case,
that without doubt the killer would be
found guilty and sentenced to death.

But the unsolved question of motive kept
public interest at a fever heat. As could
be expected, there were many rumors. One
version was that Kramer had made re-
peated attempts to gain. Mrs. Jones’ affec-
tions while her husband was away from
home working night-shift; that he con-
stantly molested her with his unwanted
attentions; that he had made threats to
kill her unless she left her husband and
came to live with him.

With confident audacity, Kramer pleaded
not guilty to the charge of first degree
murder.

ON March 19 he went on trial for his
life in Judge George P. Annand’s
Seventh District Court at Ely. Throughout
the trial the motive of the crime remained
a secret. Kramer never took the witness
stand, and District Attorney Bonner was
not required by Nevada law to prove a
motive when the testimony of eye-witnesses
was available.

Kramer sat through the trial without
emotion. He appeared unimpressed when
the jury promptly found him guilty of
first degree murder. He smiled cynically
when Judge Annand sentenced him to die
by lethal gas at the state penitentiary in
Carson City. TO

As he was led from the courtroom, Mrs.
Courtney, the woman who chased him
down the alley, told him: “I’d have saved
you from getting messed up with that tear
-gas if those dogs hadn’t. blocked. my way.
I could have caught you in another ten
steps.” ,

Kramer merely glared at her disdain-
fully.

The day the prison guards arrived to
take the condemned man to Carson City,
he called Sheriff Orrock.

“I have a favor to ask,” he said. Those
‘were the first words he had spoken in
weeks. And for the first time he broke
under the terrific strain. He continued
brokenly: “There’s a special necktie—I
want to wear it the morning I die. It’s
a red one with pretty figures set in.”

Orrock remembered the tie. He had
found it hanging on Kramer’s dresser the
morning he searched his hotel room. It
was old and worn, not nearly so elegant
as many other ties in Kramer’s collection.
Orrock wondered at the strange request.

When Jack Kramer walked from White
Pine County jail between prison guards,
he held the old red tie tenderly in hand-
cuffed hands.

That old tie, according to rumors, was a
gift from Frances Wilson in the days gone
by when she was a Follies girl. But that
is only rumor. Although Frances Wilson
Jones’ life was well known by thousands
of admirers, some aspects of her death
might forever remain a mystery.

Kramer’s execution, originally set for
the third week in June, has been delayed
by an appeal to the Nevada Supreme
Court. Before his day of doom, he might
choose to talk.

Get out that
old pipe that
burns your
tongue and make
this test with

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Who Killed the
Mack Sennett
Beauty ?

“Continued from page 37)

ardent admirer who had been “consider-
ably upset” when she married Jones. He
was a handsome fellow and tended bar in
one of the town’s largest gambling houses.
He was large and powerfully built, intelli-
gent and jovial, but hot-tempered.

When two deputies went to locate him,
he was missing. Fully as significant, “he
had asked to take the night off. It was the
first night he -had missed work in over
a year!

Still another suspect developed from this
inquiry. It was rumored that Jack Kramer,
a local plumber and mining man, also had

been devoted to the popular woman at the

time she married Jones.

But when Kramer’s name was mentioned
among a group of possemen, two of them
spoke up promptly and said that they had
seen Kramer in the Copper Club about the
time the shots were fired. The Copper
Club was three blocks from the murder
scene. It would have been virtually im-
possible for him to be implicated in .the
crime.

Besides, Kramer’s reputation was above
reproach. He was 60 years old and led
a quiet life as a bachelor. For years he
had been employed by a local mining com-
pany as a plumber and pipe fitter. Con-
servative and thrifty, he had saved his
money and now owned extensive mining
claims in the Awakening District.

Meanwhile, a posse had encircled the
town with a wall of bristling rifles and
shotguns. Still other posses, under com-
mand of Deputy Sheriffs Bill Neill, Bill
Van Volkenberg and Ed Schloerb, literally
tore the town apart in an effort to drive
the wanted man from hiding.

It was a tough night to hunt a killer.
As the possemen scoured through the town
and kept watchful posts on the surrounding
hilltops, they beat their arms against their
chests and danced up and down to keep
from freezing.

Yet it was not difficult to enlist sufficient
volunteers for a systematic search. Grim-
featured men uttered fierce oaths of ven-
geance as they joined the swelling posses.

At 11 o’clock Deputy Bill Neill reported
to Sheriff Orrock.

“The killer has eluded us,” he declared
flatly. “Must have got out of town before
we threw up our dragnet.”

RROCK GROANED at this dis-
couraging news. He had heard no

word from officers ‘in any of the surround-
ing towns. That meant that the killer
probably had detoured somewhere on a
side-road into the mesquite-covered desert.
In that case his identity might never be
known, the brutal slaying never solved.

“We can’t miss the only chance we've
got,” the sheriff muttered. “Let’s keep up
the search in town here until morning
anyway.”

An hour later Neill reported again. This
time he was bearing more important news.

“A couple of witnesses who saw the
shooting say that the slayer looked a whole
lot like that fellow Kramer,” he revealed.
“No one’s willing to make a positive state-
ment and they are not even willing that
their names should be known.”

“Kramer should be easy enough to find,”
said Orrock. “He lives at the Northern
Hotel.”

‘a bean-shooter. ,
“t * *

“ peded by onion field workers who played.

“That's just it,’ continued the deputy
excitedly. “I’ve just come from the hotel.
He hasn’t been to his room at all since
around noon.”

“He might be with one of the posses,”

suggested the sheriff. “Nearly everyone _

else is.”

If the stories were true that Kramer
was in love with Frances before her mar-
riage to Jones, it was very likely that "he
was out helping to capture her slayer.

Jones himself was doing exactly that—
and God pity the guilty man if and when
he caught up with him. -

But Sheriff Orrock was too smart an
officer to pass up the slightest opportunity
that might trap the wanted man. To the
picked squad which he had sent out to look
for the bartender, he now issued instruc-
tions to search for Kramer also.

Strangely enough, neither suspect could

Its THE
We OTRUTE.

.Dead-eyed Policeman Paul Glick of |
Lancaster, Pa., won the last city police
shoot. But Glick’s accuracy won him a
reprimand when, at police school, he
scored bullseyes on fellow officers -with

Just as W. T. Stansbury of Oklahoma.
City sat in his taxicab listening to the —

“war news, a bullet ripped through the .
_. newspaper he held, hit him softly in the

“chest and fell harmlessly to his lap. The

bullet was one fired by a policeman at a

fugitive two blocks gway.
. Admitting she had gone to funeral
_magsses in Pittsburgh to rob mourn-__
ers, Helene Eichenlaub pleaded for |
leniency because of “desperate need
for money.” She said her: system |

~ was to sit in church behind the de-

- ceased’s relatives and loot their purses
while they bowed their heads. . ENS

t he Pe cae

Said Joseph Garcia to Judge J. Abner »

_ Sayler in Baltimore: “I used those herbs
‘to bathe my feet.” Said Judge Sayler to ~

Joseph Garcia: “They’re marijuana;
three years in the penitentiary.”
Ue 3 . * * *

Motorists in Orange County, N. Y.,
complained that trafic was being im-—

dice on pavements, State police broke
up many games, arrested ten dice ~

layers.
play oe ts

In New York City, Harrison Mat-
thews, -Negro, was arrested on a
charge that during a quarrel with
his wife he had picked her up and |
set her down on a hot stove in which -

gw roast was being prepared.

_ be located anywhere.

When the first fingers of daylight
reached upward from the eastern horizon,
weary possemen straggled in for coffee
and a bite to eat. Some of them had
frost-bitten hands and feet. During the
night the moaning wind had died, driving
the temperature down sharply.

During the night-long search no trace
of the mad gunman had been discovered.
The trail he had left was as cold as the
bleak hills. As swiftly as he had struck,
he had disappeared, perhaps never to pay
the penalty for his wanton crime.

Yet even then events were shaping to
turn a surprising climax to the sensational

case. \.

At 7:30 that morning Charles Bon-
durant, a member of the Ely fire depart-
ment, pulled on his trousers and stretched ~
a good morning to the cold dawn, Bon-
durant had slept alone that night in the
upstairs quarters of the fire station in the —
city hall building.

He slid down the iron pipe to the large
room below where the fire engine was
kept. As he walked around the machine
toward the washroom, he _ noticed a
stranger sitting at the fire chief’s desk.
He was a large man with powerful hands,

‘and he wore a heavy long overcoat.

“Hello, there,” the fireman greeted him. |
The man’s half-closed eyes instantly be-
came alive as he sprang to his feet. ;

“Y’m sorry,” he said, embarrassed. “You == —
startled me. I dropped in here to get
warm on my way home. It’s morning,
isn’t it?” .

He offered the fireman a drink from a
flask which he pulled from his overcoat
pocket.

“No, thanks,” said Bondurant. ‘Got to
get washed up.”

The stranger continued with sociable
chatter. Finally he said: “I hear a woman
was killed uptown last night.”

“Yuh, I heard something about it,” said
the fireman. He wiped his face dry.
“Wonder if they’ve found the fellow who
killed her yet?”

“No.” The man’s tone was positive. It
was almost a growl. When the fireman
glanced up to determine what the tone
meant, he was looking into the barrel of a
pistol.

“They haven’t found him yet,” con-
tinued the man, evenly, “because I’m the
man who killed her.”

Bondurant’s face turned pale. He gulped
for words, then decided it was best to say
nothing.

The man behind the gun was in a po-
sition to give orders, and he proceeded to
give them.

“Go about your business just as if you
hadn’t seen me,” he said tersely. “If you
pull a false move, I’ll fill you so full of
lead they won’t be able to carry you to
your coffin,

“You know,” he went on wryly, “after
you've killed once, another time doesn’t
matter.”

The fireman considered his predicament
and began using his wits. “This is how it
is,’ he lied shrewdly. “If I’m not uptown
to the cafe within ten minutes, somebody’s
going to come looking for me. My habits
are as regular as a clock.”

His ruse worked. The stranger per-
mitted him to go for his breakfast, warning
him that bullets would be his fare if he
“talked.”

Bondurant hurried over to Aultman
Street. The first person he met was-
Deputy Bill Neill. He told him that the
killer was hiding in the city hall.

Neill was in no mood for jokes; he had
been up all night. “Stop kidding,” he said.

“But I’m not kidding,” exploded the
fireman. “He is in there—in the fire-
engine room. He told me with his own
lips that he killed her!”

T WAS SUDDENLY plain to Neill why. |
the gunman had escaped the posses. The —
city hall was about the only building in
town which they had not searched. oa
Neill waved to Deputy Van Volkenberg =
as he stepped from a nearby coffee shop.
“Follow me,” he called to him.
Cautiously the two officers crept up to_
the side entrance of the fire station. Neill
crouched low, pushed the door open, and ~
entered.
A pistol roared. Wood from the door
frame splintered into his face.

Deep lines showed on the woman’s
face as she stared at them anxiously.
“What happened to Thelma?” she
asked, in a low, fearful voice. “I
haven’t seen her since yesterday
evening. She went out on a date
and hasn’t come home, yet.”

“T see,” the cop acknowledged
briefly. “Who was the date she went
out with?”

“Glenn Borden. I don’t know very
much about him. Thelma only met
him about a week ago. I believe he’s
from Chicago.”

The cop made a note of the name.
“Do you know which hotel he’s
staying at?”

“I'm sorry, I don’t. I only saw him
once and Thelma never mentioned
it.”

“What does he look like?” the
officer asked.

“Well, he’s about thirty-five, me-
dium height and built rather broad.
He’s got light brown hair and, I
think, blue eyes, but I’m not sure.”

“It’s not bad,” the cop said. “It

Parking lot in suburban San Francisco where the body and killer were found.

ought to be good enough to locate
him. Do you know if they had a
car?”

““T don’t think so,” the woman re-
plied. .

“How about your sister,
does she look like?”

“She’s twenty-five and very at-
tractive. She has dark hair and...
As a matter of fact I have a picture
of her.”

Thelma Ribaill was very attrac-
tive. Vivacious was the best word
to describe her,. with dark, spark-
ling, fun-loving eyes and a broad
open smile. The officer tucked the
photo into his wallet, nodded, turn-
ed, and retraced his steps down-
stairs. Perhaps there would be some
trivial explanation, but he doubted
it. He took the articles down to
headquarters and made his report.

what

THE CASE was handed to Deputy
Sheriff Jack Goss of Washoe County,
Nevada. He began in the routine

way, checking the morgue and the
local hospitals with a description of
the missing woman. When that pro-
duced nothing he called the hotels,
starting with the largest ones and
working down.

The seventh call gave him the
hotel at which Glenn Borden was
registered. The man was not in his
room at the time, but the Deputy
left word at the desk for. him to call
Headquarters as soon as he came in.

Goss waited a couple of hours,
and when he failed to hear from
Borden, he decided to visit the hotel
personally. A new clerk, the night

‘man, was on duty now. He had the

switchboard ring Borden’s room, and
a bell-hop went up with a pass key
to investigate further, but no one
was there. They had him paged in
the lobby, the restaurant, and the
gambling Casino, but he was not
around.

“When did you see him last?”
Goss asked the clerk.

“TI believe the last time I saw Mr.

Borden was early this morning, just
before dawn. He came to the desk to
ask if there were any meségages for
him and then he went up to his
room.”

“And you haven’t
since?”

“T went off duty a short time later.
One of the day men would probably
have seen him go out.”

“When Borden came in early this
morning,” Goss continued, “was he
alone?”

“Yes sir, he definitely was.”

For his final question the deputy
held out the snapshot of Thelma
Ribaill. “Have you ever seen this
woman befere?”

_The clerk studied the portrait and
shook his head. “No sir, I haven’t.”

The next stop was the apartment
house on the corner of Ralston and
West Second. Lydia De Lente was
definitely on edge when Goss en-
tered her apartment.

“J haven’t heard a word from
Thelma all evening,” she declared.
“I calied some of her friends, and
the place where she works, but no
one has seen her since yesterday.”

“Where does your sister work?”
Goss asked.

The woman mentioned the name
of one of the local gambling casinos.
“What kind of work does she do?”

“She’s just a shill. You know, pre-
tends to play at the tables when
things are slow.”

“How long has she been working
there?”

“About six weeks. Thelma came
here a few months ago to get a
divorce, and she took this job to
make some money while she was
waiting for the final decree.”

“Ts that where she met Borden?”

“I don’t know where she met
Glenn. It could have been there. It
could have been any place.”

“Do you know if she ever had
any trouble with any of them, any
of these people she’s met?”

“What
woman eyed him suspiciously.

Goss smiled. “A good-looking girl
like your sister...”

“Oh that!”. Lydia smiled back. “I
suppose we all have a little of that
kind of trouble. It gets so you don’t
even notice it after a while.”

In the nearest phone booth he
called Glenn Borden's hotel. ‘Has
Mr. Borden come in, yet?” he asked
the clerk. ©

“Yes he has,” the clerk reported.
“Just a few minutes ago. I gave him
your message.”

“Do you know if he called any-
one?”

“No sir, he hasn’t made any calls
from his room.”

“Is that where he is now?”

“T believe so.”

“If he starts to go out, do every-
thing you can to keep him there. I'll
be right over.”

(Continued on page 62)

seen him

kind of trouble?” the |

Thelma Ribaill’s mutilated corpse lying in the San Francisco morgue.

i they had quarreled might lie hidden. The California highway
sut it was just an or- patrol was alerted, and pressed the search
_and he assured the gown the western slope of the forested
t threatened Thelma, Sierra. The officers agreed that Gambetta,
red to him to follow j¢ jndeed he actually had been in San
Be igh es Francisco, 230 miles away, at 8:30 that
ver didn’t really mean morning, after leaving Reno at 3 a.M., must
.” Bill explained, “and have driven at top speed, straight over
1 off pretty quick. I Route 40, down through Sacramento, Val-
tonight and take her jejo and Oakland and over the Bay Bridge.
Captain Kirkley’s men backtracked the
had last seen Thelma suspected killer’s trail in Reno. They found
iome Wednesday night, the bar near the casino on Center Street,
ay morning about 2 > where he had hung out for a week, keep-
own a gun, and the jing to himself and drinking steadily, with
his gray car was clean. an ominous scowl on his dark face most
as a suspect. of the time. He had last been seen there
kley told _Harper the’ Thursday afternoon. They traced inquiries
helma’s disappearance, he had made about his former wife. Learn-
e open. When Thelma’s jing Gambetta once worked in Las Vegas
| about the shoes and and had friends there, Kirkley alerted
: street, he jumped up authorities of the southern Nevada city,
tion. “Gambetta’s the which at that time, 10 years ago, was just
at ex-husband of hers. peginning to rival Reno as the state’s
rr gaming mecca.
uso positive of that? ~ At 3:30 p.m. came a break. Gambetta’s
about Leo Gambetta?” ojq green Buick was found in a downtown
; " Reno parking lot, where he had left it
vas scared stiff of him. fye days before. On the heels of this
divorce, he phoned her gevelopment came a call from San Fran-
Francisco, and threat-. cisco: the hunted bartender was definitely
rere and kill her if she jn the bay city. Homicide Inspectors Frank
h it. Then one night, Anern and George Murray, tracking him
. when I drove Thelma through the Tenderloin, had just missed
lim sitting in his car him in another bar where he had been
watching her place. I’ grinking between 2 and 3 p.m. He was
n, but she held me ajone, and sat off in a corner staring
ay when he saw US* morosely into his drink.
was when Thelma) «There’s only one answer,” Joe Kirkley
. I urged her to tell the” gecided. “He’s driving a rented car. He laid
m arrested or run out of.) yp his own car after Thelma and Bill saw
id she could take care’ him in it, and rented one so he could fol-
t worry. She was afraid jow her without being spotted.”
t might hurt her on her= petectives hit Reno’s auto rental agen-
- cies. Intensive legwork soon paid‘ off. At
ielp worrying about her. 4:30 they found the place where Leo
t she told me, this Leo Gambetta had rented a new gray Ford
lly, just the other night, two-door sedan on July llth. He had
n a code between us..checked in Thursday afternoon and paid
: up with her and forced up to date, saying he would be using the
, she’d kick off her shoes car a few days more.
a. Radio and teletype crackled out the
im up missing and my description of the gray Ford, Nevada license
ire found in the street,’ 25-L-683, and the telephone wires hummed
v1l know Leo’s got me. between Reno and San Francisco.
the police. They’ll know’ The payoff wasn’t long delayed. At
: °6:30 that Friday afternoon, exactly 12
got her—and if you’re; hours after Thelma Rabail’s shoes and bag
1ots out on the highway, had been found on the Reno street, San
» to save her. But maybe. Francisco Radio Patrolmen Barney Bourke
something else. Maybe and Dick Dwyer were cruising along the
somewhere. You say he’ Great Highway at the ocean beach. Reach-
Francisco this morning. jing Fleishhacker Pool and the municipal
ier there, forced her to’ playground at Sloat Boulevard, the south-
-ern limit of their patrol, they turned
1ief Greeson immediately ; slowly around to go back.
cgency all-points bulletin) Dick Dwyer casually eyed the sparse
a and his green Buick,row of cars parked on the sandy turnout
nfirmed was the car the overlooking the ocean. The scenic spot is
ader had been driving a favorite parking place for lovers at
ying on Thelma’s apart-. night, and that late afternoon a few couples
2 description of the light were sitting watching the reddening sun-
cen. Joe Kirkley hit the set over the blue Pacific. Suddenly the
Francisco. Captain Mc- young officer tensed. “Hey—that gray Ford
id no further word on parked over there—the Nevada license—
rromised to broadcast a isn’t that the one?”
intensify the search in’ Hurriedly Bourke checked the “hot
‘irkley asked him to rush,’ sheet” of wanted cars. “That’s it, all right.
ie hawk-nosed bartender New gray Ford, 25-L-683. Wanted in Reno
\ail special. gon suspicion of kidnaping and murder.”
libi stood up completely, The officers had noted the Reno bulletin
red. Sheriff Root joined; only an hour before, as they cruised
f Greeson in the all-out through Golden Gate Park. Gambetta was
abetta. ‘listed as armed and dangerous.
police and_ sheriff’s) They pulled up, jumped out and ap-
he Reno area. They * proached the Ford from either side, with
; of Idlewild Park’ service guns drawn. A man sat alone at
aun. of the Truckee River.;the wheel. The officers yanked both doors
U.S. 40 as far as Donner {open at the same instant and covered him.
fornia line 11 miles west, The swarthy, hawk-nosed driver, who
ing the shrubbery and)looked thoroughly beat, didn’t seem too
ids for spots where a body’ surprised. He raised his hands wearily.

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A Luger pistol lay on the seat beside him.
Dwyer snatched it up, and the man
clambered out at the officers’ order.

“Are you Leo Gambetta?” Barney
Bourke demanded.

“Yes, that’s me.”

“Where’s your wife—your ex-wife?”

“Thelma’s back in the trunk,” the husky
little bartender indicated with a jerk of
his head.

They opened the trunk. The brunette
gambling divorcee had taken her last ride.
She was crumpled in the narrow compart-
ment, lying on her back, legs bent up
under her. Her bolero jacket was pulled
up, and there was bldod on the rumpled
white blouse. The shoeless body was al-
ready stiffening with rigor mortis.

“You boys came along just in time,”
the handcuffed man told the radio officers.
“I was just getting up nerve to shoot
myself.”

A few minutes later Gambetta was
telling his story to Inspectors Ahern and
Murray, while a deputy coroner took
charge of the body, which had two bullet
holes in the back.

“JT couldn’t stand the thought of another
man having her,” the killer said, shaking
his head mournfully. “I went up there to
beg her to come back to me. When I saw
her out with that blond fellow and heard
she was figuring on marrying him, I blew
my top. I decided I’d kill her first, if she
wouldn’t change her mind.

“I was waiting in the bushes when she
came home last night. I jumped out and
jammed the gun in her ribs. I told her
to come with me, and she didn’t say any-
thing. I thought she was going to follow
my orders. She got into the car with me
and I started to drive out of town.

“I stopped near the park and told her
I wanted her to come back to me. I grabbed

her and tried to kiss her. She pushed me
away, called me a dirty name and jumped
out of the car. That did it. I shot her in
the back, dumped her in the trunk and
got out of there fast.”

After driving around the Reno outskirts
for a while, Gambetta said, he headed
over the mountains, back to San Fran-
cisco, stopping only once for gasoline.
Thelma’s body was outside in the parked
car when he visited the Tenderloin bar
at 8:30. He spent the day drinking, trying
to decide what to do. He said he had made
up his mind to kill himself, but the
homicide men were skeptical, since the
killer had already fled 230 miles with the
body, and was caught only by the alert-
ness of the young radio officers. It was
entirely possible Gambetta had planned
to bury the body at the beach after dark
and keep going.

The confessed love-killer waived ex-
tradition, and Kirkley’s men took him back
to Reno that night. He said he wanted to
get things over with as quickly as possible,
that he didn’t want to live, now that
Thelma was gone. Swift Nevada law ac-
commodated him. On August 2lst, 1948,
Eugene Leo Gambetta was found guilty
of first-degree murder in Washoe County
district court, and on October 15th, three
months after the killing of his young
ex-wife, he went stolidly to his death
in the gas chamber. rx x)

Eprtor’s NOTE
The names Viola Francis, Bill Harper
and Harvey Weber, as used in the fore-
going story, are not the real names of
the persons involved. These persons
have been given fictitious names to
protect their identities.

‘

a
Mr

The cops found her red shoes e

in the gutter,
her bloodstained clothing
further up the street.

The next question was

and ‘Mrs. Gambetto. sefore divorce an

“at

apart

re,

ous color, and people must
have noticed the leather slip-
per with its three-inch heel,
but nobody bothered to pick it up.
What would be the point? It was
only a single shoe. The cabbie, Eric
Davis, of Reno, Nevada, reacted
differently. He had nothing to do at
that moment and he was bored. He
got out of his cab, picked up the
shoe and examined it. At first he
thought the darker spots on the
bright red leather were smudges of
dirt, but when he tried wiping them
off, he changed his mind. They. were
blood. He took the shoe to a cop.
They both went back to the corner
of Ralston and West Second, where

R ED IS HARDLY an inconspicu-

By
Roger
Oliver

POLICE DETECTIVE,

October, 196.

the shoe had been found. They saw
a white hat twenty feet up the
street from where the shoe had lain.
The hat was smeared with blood. So
was the purse they discovered.

They opened the purse and rum-
maged through it. There was a little
bit of money—just a few dollars—the
usual compact, lipstick and hand-
kerchief ... and some personal pap-
ers. That was a break, because
among the papers there was a name,
Thelma Ribaill, and-an address right
on the same street.

The cop grunted with satisfaction.
“Well, this might not be as hard as
it seemed at first.”

The small apartment house on the
corner had the name Ribaill over

one of the bells downstairs. The cop
pressed the button and went in.
Two floors up, a young, attractive
brunette stood in the doorway of the
rear apartment and stared anxiously
at the patrolman.

“Are you Thelma Ribaill?”

“No, I’m her sister, Lydia De
Lente. I live here with her.”

The cop held up the white purse.
“Do you know if. this belongs to
your sister?”

The woman recognized the bag
but apparently did not notice the
bloodstains, for she breathed a sign
of relief. “Oh yes, that belongs to
Thelma.”

“T also found these.” He displayed
the shoe and hat. “Look familiar?”

The end of the road. Thelma Ribaill’s
body in the trunk of a rented auto.

“me

See ee ee

Burks, or Adams. The officers tried his
mother’s home at Banks and drew a
blank.

When they tried his sister’s and Cap-
tain John W. Jones, of the Arkansas
state police, and Sheriff C. W. Hick-
man, of Worren, walked up to the door,
Burks came out and shook hands with
his captors!

Burks denied that he had anything to
do with the actual killing, and in Lake
Charles jail, the accused killers flew at
each other’s throats, each trying to pin
the blame on the other. Toni wouldn’t
be tried with him jointly, got a sever-
ance, and went to. trial first on March
27, 1940.

She came into court wearing a fur-
coat and a defiant smile. The courtroom
was packed with curious folks who
came to see the “Tiger Girk’ get the
works. One member of the jury before
testimony was completed, smiled at a
friend and drew his hand across his
throat in a cutting gesture.

A jury deliberated seven hours and
convicted Toni Jo of murder. She was
sentenced to die in the electric chair.
Several weeks later, Burks also received
the death sentence.

Neither was ready to die yet. Toni
Joe’s lawyers filed an appeal. She was
granted a new trial. This time, Burks
testified against her. She was again
sentenced to die. Her attorneys obtain-
ing a third trial, on January 24th, 1942.
Again she was convicted and sentenced
to die. Her execution date was set for
Saturday, November 28th, 1942. Despite
the fact that he had turned stool pig-
eon, Burks had no better luck. He also
remained scheduled for death.

Eight days before her date with the
electric chair, Toni Jo resigned herself
to the inevitable. She assumed respon-
sibility for Joseph Calloway’s death, in
an attempt to exonerate Burks. Of Cow-
boy Henry, she said, “That guy is king
of my heart. Nobody ever really cared
about me until he came along. The
only thing I’m sorry about is, that I
can’t say good-bye to him before I go.”

The Cowboy determined that she
should have the opportunity—and then
some. He felt responsible for getting
her into trouble. Deciding that “turn-
about” was only fair play, he decided
to get her out—to spring her from her
death cell at Lake Charles.

Six days before her execution date,
the Cowboy and another convict knock-
ed out the driver of a laundry truck
that had entered the prison, smashed
through the gates with it, and headed
toward Lake Charles.

The truck was found abandoned six
miles away. But the Cowboy continued
his quest east.

An intensive search was organized by
police along the route. When he was
not found. the Lake Charles and coun-

ty police went on 24-hour duty, sur-
rounding the small jail. Floodlights
illumined its yard all night.

Toni Jo knew her husband didn’t
have a chance. “He’s crazy if he thinks
he can set me free,” she confided. But
she refused to eat or to sleep, and stood
at her cell window all night, ready to
scream warning if he came. A report
was received that a high-speed car had
been stolen less than 20 miles away.
Cowboy Henry apparently was ap-
proaching his rendezvous with destiny.
That night posses of armed citizens
patrolled Lake Charles and approach-
ing roads. Meanwhile, lawmen honey-
combed the area all the way to Houston.

On Thursday morning, three days
after the Cowboy’s escape, he was iden-
tified as the man who had registered
late the night before in a small hotel
near the railroad depot in Beaumont,
Texas, about 20 miles from Lake
Charles. Police surrounded the hotel
with submachine guns, while others
crept up the narrow stairs, and threw
open the door.

Cowboy Henry knew when he was
licked. He threw up his hands, and
readily admitted his identity. Also, his
attempt to rescue Toni Jo. He pleaded
to be allowed to telephone her before
his return to Huntsville. But his request
was denied.

But the public had taken the roman-
tic couple to its heart, instigated by
widespread newspaper publicity. Law-
enforcement officials bowed to general
interest in the pair to the extent of al-
lowing the Cowboy to telephone her on
Friday, the day before her execution
date.

“I’m sorry you broke out, honey,” she
said. “You couldn’t have done anything.

“I-guess it just had to happen this
way. Please be a good man and get rid
of that prison uniform. Go straight and
make something of your life. Goodbye,
honey.” Toni Jo hung up the phone,
happy and prepared to go to her death.

She showed no fear as she was led by
a priest down the concrete stairway to
the execution chamber, which had been
especially prepared in the county jail.
Only once had she expressed any fur-
ther emotion—when the prison barber
prepared to shave her head, she asked,
“Do you have to do that?” She request-
ed, and was allowed to wear a bandanna
over her head until she was strapped in
the electric chair. She died without fear
in the electric chair, on November 28th,
1942. Harold Burks was executed the
following March.

If things had been different, possibly
Toni Jo and the Cowboy would have
made a go of it. But it was already too
late when they first met. And Toni Jo,
by her brutal killing of Joseph Callo-
way, made it an impossibility.

THE END

WHERE'S THELMA?

(Continued from page 33)

When Goss arrived he found Bor-
den just coming out of a shower.
They went through the formal pre-
liminaries of identification, and then
Goss asked, “When did you see
Thelma Ribaill last?”

Borden looked up apprehensively.
“Has anything happened to her?” he
asked.

“She hasn’t come home since her
date with you last night,” the dep-
uty told him. “I wonder if you know
where she is.”

The man shook his head. “No I
don’t, but what you say worries me

-very much.”

“Why?”

“Something very unusual hap-
pened last night. I brought Thelma
home about four in the morning,
and when we approached the door
to her building a man got out of a
car and came over to us. Thelma
recognized him and asked him what
he wanted. He said she knew very
well what he wanted, and then he
pulled out a pistol and waved it at
me and told me to beat it. I was
reluctant to leave Thelma with him,
but he was sticking that gun right
in my face, and I was scared. Finally,
Thelma said, ‘It’s okay, Glenn. I’ll be
all right.’ That was the last time I
saw her.”

“What did this man look like?”
Goss demanded. :

“He was about my height and
heavy set. It seemed to me he had
dark hair. He looked to be older
than me, maybe in his forties, or
even older, and he spoke in a low,
husky voice.”
_ “What were this man and Miss
Ribail doing when you left?”

“The last I saw of them they

- were standing in front of the house

yelling at each other.”

The deputy looked at him with
disgust. “And you never even
bothered to call during the day to
find out if she was all right?”

Borden squirmed uncomfortably
“I guess I should have done that. But
you see, I figured maybe she was
mixed up in something that was
none of my business. After all, I
didn’t want to get involved in any
kind of messy situation.”

It was a lame explanation, and
Goss took it with a considerable dose
of salt, but he let it go for the time
being. “You say this man got out
of a car. Do you remember what
kind of car it was?”

“J think it was a light-colored
sedan.”

The deputy then asked. “Do you
recall what kind of shoes and hat
Miss Ribail wore on her date with
you last night?”

“Yes, I do. She was wearing high-
heeled red shoes and a white hat.
She also had on a black dress and
carried a white bag.”

Goss badgered Borden with a flock
of other questions, but nothing was
added to what he had already learn-
ed. He stuck to his story tenaciously
and could not be shaken, despite con-
siderable cross-examination. Finally
the deputy gave up and got to his
feet. “Okay, Mr. Borden, that’s all
for the present. However, I’ll ap-
preciate it if you keep yourself
available to us.”

Borden nodded and said he would,
and Goss left. As he stepped out of
the hotel room into the corridor, he
consulted his watch. It was ten-
fifty, still early enough for one last
call. He went back to see Lydia De
Lente. .

By this time the sister was ab-
solutely frantic. Goss’ report of his
interview with Borden did not help
her frame of mina at all. “Do you
suppose Glenn-is really telling the
truth?” she asked the policeman
distractedly.

The deputy shrugged. “I have no
way of knowing. Off hand I’d say he
was, but I wouldn’t guarantee it.
Anyway, let’s assume for the mo-
ment his story is on the level. That
means we've got to find someone
who fits this description: a medium-
sized, stocky guy with dark hair
who drives a light-colored sedan
and speaks in a husky voice. Can
you think of anyone?”

For a moment Lydia’s eyes went
wide, but then she shook her head
and said, “‘No, it couldn’t be Eugene,
her ex-husband. He’s dark and
stocky but he doesn’t have a light-
colored sedan. Besides, he’s in San
Francisco.”

Goss was interested, “What’s Eu-
gene’s last name?” he asked.

“Gambetta. But he hasn’t been
in Reno for several weeks, not since
the final decree came through.”

“Does he have a car?” Goss per-
sisted,

“A black convertible.” She re-
flected a moment, and added. “At
least that was what he had the last
I knew. When he was in Reno a
month ago he didn’t bring any car.
He rented one here in town for a
couple of days.”

Goss leaned forward eagerly.
“What were the conditions under
which your sister and Gambetta
broke up?”

“Thelma left him,” Lydia replied.
“Gene didn’t contest it, but he was
very unhappy, and the last time he
came here he tried to get Thelma
to change her mind.”

Goss rose to his feet. “Do you
know Gambetta’s address in San
Francisco?” he asked.

He left the apartment and rushed
back to his office. There he had a
call put through to San Francisco.
The operator reported that nobody
answered.

“Tell her to keep ringing that
number at half-hour intervals until
she gets the party,” Goss ordered.
Then he issued instructions which
started the phones ringing at a half

dozen different automobile renting
agencies in Reno. It was a good
hunch and it paid off. From one of
the agencies Goss got the informa-
tion he wanted. Eugene Gambetta
of San Francisco had rented a light
gray sedan the day before, but had
failed to bring it back.”

- The Reno police department was
alerted and a comprehensive search
was instituted in all the hotels and
rooming houses in town. It went on
all through the rest of the night, but’
failed to produce the missing man.
Meanwhile San Francisco was ring-
ing Gambetta’s phone at fixed in-
tervals, and nobody was answering.

By the next morning Goss and his
associates were convinced they had
a fugitive to deal with, and an alarm
was sent out to every state west of
the Mississippi.

They found the car on the outskirts
of San Francisco. Two city patrol-
men, Barney Bourke and Richard
Dwyer, noticed it just before noon
the next day, July 17, 1948, parked
on Great Highway near the Fleisch-
aker Pool. It was the only car
around, and its light gray color
made it quite conspicuous. So did
the number on the license plate.

_ They found Eugene Gambetta sit-
ting stiffly behind the wheel, staring
blankly at the road before him. He
offered no resistance when they told
him to come out, and when they
pointed to the blood on his light
slacks, he nodded his head and said
“That’s Thelma’s blood.”

“Where is the woman?” Dwyer
demanded.

Silently Gambetta moved to the
rear of the car and lifted’ up the lid
of the trunk compartment. Doubled
up inside, lay the stiff figure of a
young, attractive brunette. “There
she is,” Gambetta said, and turned
away.

He confessed readily to Inspectors
Frank Ahern and George Murray of
the San Francisco homicide Squad.
“I wanted her to come back with
me. I couldn’t stand living without
her,’’ he explained calmly, almost
conversationally. “But she wouldn't
do it. She said we were through for
good. So I lost my temper and slug-
ged her on the head with the gun
butt. Then I threw her in the car
and started to drive away, but she
managed to get the door half open
and fell out into the street. I stopped
the car and went back after her.
She was lying there unconscious,
and I lifted her up and pushed her
into the trunk compartment. About
a dozen cars must have passed us,
but it was dark and they didn’t no-
tice anything. Anyway, nobody
stopped. I finally slammed the trunk
lid cown and got the car going
again. I drove around Reno for
hours trying to get up enough guts
to turn myself in. Then I gave up
trying, and drove back here.”

The authorities came from Reno

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ant of all negligence which was the prox-
imate cause of the injuries to and death of
the decedent. It did this despite the un-
controverted evidence (1) that the caboose
from which the decedent fell was being
propelled ahead of the locomotive and of
the train, thereby rendering such an acci-
dent possible; and (2) that the safety
chain mentioned in the evidence was in-
adequate, at least that when it was put to
the test it failed to perform the function
for which it was intended”.

Is he not assuming that the proof of the
alleged acts of negligence, of necessity
carries with it the proof of the required
causal connection to the death of deceased ?
Stating it in a different way, the court has,
in effect, said this: The jury freed defend-
ant from the responsibility for its negli-
gence in spite of the fact that the evidence
stands uncontroverted that it was negligent.

This is just another-way of saying that
uncontradicted proof of negligence in and
of itself establishes the proximate cause
relationship to the death. I have tried,
above, to illustrate the fallacy of this rea-

. soning by an imaginary peek into the jury
room. r

212 PACIFIC REPORTER, 2d SERIES

If it be assumed that what the court
meant was that the jury found the defend-
ant not negligent at all; then I ask: How
can he arrive at such a conclusion in view
of the fact that he did not know what took
place in the jury room? The imaginary
argument illustrates what might well have
taken place.

I find it impossible to measure the sound-
ness of the lower courts exercise of dis-
cretion by his reasoning and to conclude
that he was justified in granting a new
trial. I know of no better measure fo-
the soundness of his exercise of discretio:
than that advanced by himself. Referrin,
to Section 104-40—7, U.C.A.1943 (quoted
in the prevailing opinion) the expressicn
“plain disregard * * * of Ae Se
the evidence * * *” is used. It seems
reasonable to look for something in the
record or in the court’s reasoning viewed
in the light of the record to which one
may point as evidencing that “plain disre-
gard” of the evidence. The lower court,
apparenily, advanced the uncontroverted
character of the evidence, but the prevail-
ing opinion holds that he was in error as
to that. What then is the foundation of
this decision?

Cy aad

ANN SER a Hee 8 —

STATE y. GREGORY Nev. TOL

Cite as 212

MOODY v. RILEY.
No, 3512.

Supreme Court of Nevada.
Dec. 6, 1949.

The Supreme Court entered a judgment
affirming decision of the trial court against
Frances ‘M. Moody, plaintiff, and in favor
of H. A. Riley, 198 p.2d 447, and subse-
quently granted a rehearing, 202 P.2d 7386,
for the purpose of considering whether the
eause should be remanded in order to give
the appellant an opportunity to apply to the
trial court for leave to amend her complaint
in order to state a cause of action for spe-
cific performance,

On rehearing the court, Hatton, District
Judge, refused to remand the cause for
further proceedings on the ground that there
was no error attributable to the trial court.

Appeal and error <>! 178(8)

Where the trial court properly sus-
tained a demurrer to the plaintiff's com-
plaint and on plaintiff's refusal to plead fur-
ther, entered a judgment against her, there
was no error attributable to the trial court,
and the Supreme Court was without juris-
diction to remand the cause for further pro-
ceedings in order to give the plaintiff a
chance to amend her complaint.

———_>———_

Gordon W. Rice, of Reno, for appellant.

Royal A. Stewart, of Reno, for respond-
ent.

HATTON, District Judge.

In this cause, a demurrer to the com-
plaint was sustained, judgment against
plaintiff was entered, and plaintifi appealed.
No error appearing in the record, the judg-
ment was affirmed. A rehearing was grant-
ed for the purpose of considering whether
or not the cause should be remanded for the
purpose of giving the appellant an oppor-
tunity to apply to the court below for leave
to amend her complaint in order to state, if
she could, a cause of action for specific per-
formance.

On the argument on rehearing, the ap-
pellant acceded to the argument and au-

P.2d 701

thorities presented by respondent to the ef-
fect that, if there be no error attributable
to the trial court, this court is without jur-
jsdiction to remand the cause for further
proceedings. On the authorities presented,
we conclude that the cause should not be
vefmandeds. N.C. Secs: S927, 9385.62; 5
C.J.S., p. 1358, § 1872, note 83; People ex
rel. Hastings v. Jackson, 24 Cal. 630; Sut-
ter v. City and County of San Francisco,
36 Cal 112+ O'Hara v.Los Angeles Coun-
ty Flood Control District, 19 Cal.2d 61, 119
P.2d 23,

HORSEY, C. J., and BADT, J., concur.

On the original appeal of this cause, the
Governor commissioned Hon. Wm. D. Hat-
ton, Judge of the Fifth Judicial District, to
sit in the place of Eather, J., by reason of
the latter’s illness. Judge Hatton, accord-
ingly, likewise participated, in place of Jus-
tice Eather, in the rehearing.

‘Oo. © KEY NUMBER SYSTEM

anme

STATE v. GREGORY. 4
No. 3570.

Supreme Court of Nevada.
Dee, 12, 1949.

Theodore William Gregory was convicted
in the Second Judicial District Court, Wa-
shoe County, William McKnight, J., of mur-
der in the first degree and he appealed.

The Supreme Court, “Hatton, J., affirmed
the judgment and order denying defendant’s
motion for new trial and denied petition for
modification of judgment by reducing the
degree of the crime, and directed trial court
to make proper order for carrying judgment
into effect, holding, inter alia, that evidence
sustained conviction.

1. Homicide €=23(!)

Words or conduct calculated to arouse,
and arousing, sudden passion, may be suffi-
cient to modify homicide from murder in
the first degree to murder in the second
degree.

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MAAWVERSITY OF ALABATA

—— = meee

702 Nev.

2. Homicide €=22(3)

When a design to kill another person
is once formed, the haste with which the
design is put into execution does not modify
the homicide from murder in the first de-
gree to murder in the second degree.

3. Criminal law G=1159(2)

. Verdict of a jury in criminal prosecu-
tion will not be disturbed on appeal when
it is supported by substantial evidence.

4. Homicide @=253(1)
Evidence sustained conviction for mur-
der in the first degree.

5. Criminal law €=1186(4)
Homicide €=157(3)

In prosecution for murder in the first
degree, of a defendant who shot and killed
his former wife with a pistol, proof of com-
paratively recent divorce obtained by de-
cedent from defendant was admissible to
show state of feelings between defendant
and decedent, but inclusion in the proof of
statement in divorce decree that divorce
was granted for extreme cruelty was in-
competent but was not prejudicial in view

of other evidence. N.C.L.1929, § 11266.

6. Criminal law ©=823(17)

In prosecution for murder in the first
degree, instruction on manslaughter, alleg-
edly giving impression to jury that to re-
duce the crime from murder in the first de-
gree, and to consider the heat of passion,

‘passion must be irresistible, and which did

not contain words restricting instruction to
voluntary manslaughter, did not confuse
jury in view of other instructions, bearing
on subject of manslaughter and referring
to irresistible passion. N.C.L.1929, §§
10069-10071.

7. Criminal law €=993
Homicide €=347

Evidence did not show that defendant
was not guilty of murder in the first degree
and guilty only of murder in the second
degree or of a lesser crime included in the
crime of murder, so.as to permit Supreme
Court or trial court under statute to modify
conviction for murder in the first degree
by reducing crime to murder in the second
degree. N.C.L.1931-1941 Supp. § 11032.

212 PACIFIC REPORTER, 2d SERIES

Leslie B. Gray, of Reno, for appellant.

Alan Bible, Atty. Gen., Homer Mooney
and Robert L. McDonald, Deputy Attys.
Gen., Harold O. Taber, Dist. Atty. of
Washoe County, and Grant L. Bowen, Dep-
uty Dist. Atty., Reno, for respondent.

HATTON, District Judge.

Theodore William Gregory, the defend-
ant below, is the appellant here. He will
be referred to herein as the defendant.
The defendant was charged with the mur-
der of Margaret Tarr by an Information
filed by the District Attorney of Washoe
County, Nevada, on October 8th, 1948, to
which he entered his plea of not guilty.
Upon the trial he was found guilty of mur-
der in the first degree and the death penalty
was imposed by the jury. He brings this
appeal frori the judgment and from the
trial court’s order denying his motion for a
new trial, or, in the alternative, for a
modification of the judgment by reducing
the same from murder in the first degree to
murder in the second degree or a lesser
crime included in the crime of murder.

One of the assignments of error in this
case is “that the evidence is insufficient to
sustain or justify a verdict that the appel-
lant is guilty of murder in the first degree”.

The defendant and the deceased, Mar-
garet Tarr, were married in Elko, Nevada,
on December 16th, 1946. Thereafter they
went to Detroit, Michigan, their former
home, remaining there for a period of about
three months. They then returned to Ne-
vada, taking up their residence at Las
Vegas, where defendant was employed as a
barber and later as caretaker of an apart-
ment house. They were divorced at Las
Vegas on May 18th, 1948, deceased resum-
ing the name of Margaret Tarr. Defend-
ant testified that, immediately after the di-
vorce, she promised to remarry him, that
she broke her promise, that she lived with
him after the promise, and that he spent
money on her and on her daughter by a
prior marriage. He suspected her of inti-
macy with another man, and he brooded
over these conditions. Mrs. Engelberger,
with whom they were rooming, testified
that the defendant said‘to her, before the

STATE v. GREGORY Nev. 703
Cite as 212 P.2d 701

shooting, “I guess I lost her, she double-
crossed me, I found out where she was
that night, and Ixknow what I’m going to
do”. Police officer Geiscking testified that
the defendant said “he was tired of her
‘chippying’ around and he warned her if
she wouldn’t quit that he was going to do
what he did’. The defendant, in the carly
morning of the homicide, lay awake for
hours awaiting the return of Mrs. ‘Tarr:
when he heard the arrival of the automo-
bile, he armed himself with a pistol and
went out to the car. He testified that he
took the pistol for protection. The evi-
dence shows that, after the door of the car
had been opened and the defendant had
drawn the pistol, a long conversation and
argument ensued between the defendant,
Mrs. Tarr and her companion Birch. The
defendant evidently desired to satisfy him-
self as to the degree of the intimacy be-
tween Mrs. Tarr and Birch and also to
compel Mrs. Tarr to admit that mutual
promises of remarriage existed between
them and that they had been living together
since the divorce as husband and wife. For
a time, she refused to make either of these
admissions, and the defendant testified that
she called him a liar. He testified that
Birch “tried to get her to agree with me
and she would not; she did make the state-
ment, she said ‘Darrel, I won’t do it for
Ted, but I will do it for you’ and that is
when it happened”. So, according to the
defendant’s testimony, he had finally ob-
tained from her an admission of the cor-
rectness of his contentions, but with her
assertion, in substance, that she was making
the admission because Birch requested it.
Birch testified that his relations with Mrs.
Tarr extended only to their drinking to-
gether and his taking her home on the two
occasions. During their argument, as tes-
tified to by the defendant, neither Birch nor
Mrs. Tarr would admit any .further in-
timacy. This left the defendant with only
his surmise as to the extent of their inti-
macy but with the definite knowledge that
Mrs. Tarr no longer cared for him and
that her affections were directed towards
Birch. He told Birch that he did not blame
him and his resentment appeared to be di-
rected mainly towards the woman. He was

sufficiently calm to direct Birch to drive the
car away from the Engelbergers’ residence
in order not to disturb them. From the
time of the drawing of the pistol until the
moment of the shooting, an interval of
about an hour elapsed, according to the de-
fendant’s testimony, and, according to the
testimony of Birch, the interval covered
about two hours. The jury therefore had
before them, in the evidence, a substantial
period of time in which the defendant
could reflect upon and consider what he
was about to do. There is substantial evi-
dence that, prior to the night of the homi-
cide, he had at least entertained the thought
of killing her. This the jury no doubt con-
sidered in connection with the defendant's
anger and his indecision, as testified to by
Birch, as to whether or not he would kill
Birch also. It is the defendant’s contention
that his mind was so disturbed by the events
which had transpired between himself and
Mrs. Tarr, her calling him a liar and her
expressed preference for Birch, that he was
incapable of forming, and did not form
or entertain any design or purpose to kill
her,—that the killing was not deliberate
and premeditated but was the result of pas-
sion. Immediately prior to the shooting,
Birch ran from the car, and, while running,
he heard the three shots.

[1,2] It is stated in 26 American Juris-
prudence, Homicide, p. 189, Sec. 43, that “it
seems to be settled that words or conduct
calculated to arouse, and arousing, sudden
passion, may be sufficient to modify homi-
cide from murder in the first degree to
murder in the second degree”. In the same
article, at page 187, Sec. 42, the following
is stated:

“A very brief period will suffice, provided
the formed intent to kill was consciously
conceived in the mind of the slayer before
the homicidal act was committed. It is
sufficient that with the intention to commit
the act the appreciation of the result likely
to follow appeared to the defendant at the
time the act was committed, or that he un-
derstood and contemplated the consequences
of his act; a killing may be the result of
prompt and speedy execution of a hasty or
immediate resolution and yet have , been
done with express malice. When a design

OE DE NUS Se et

ELT RES ETAL

VRIVERSITY OF ALABATAA

704 Nev.

is once formed, the haste with which it is
put into execution in no way affects or
modifies the degree of guilt incurred. Such
design may have existed for only an instant
before the commission of the crime. De-
liberation and premeditation imply a ca-
pacity at the time of the commission of the
homicide to think and reflect—sufficient vo-
lition to make a choice, and by use of the

‘ mental powers, to refrain from doing the

homicidal act.”

The jury no doubt considered whether
or not the defendant consciously conceived
an intent to kill, and whether or not he
understood and contemplated the conse-
quences of his act, his capacity to reflect,
to make a choice, and to refrain from doing
the homicidal act. _

The evidence before the jury was, to a
considerable extent, similar to the evidence
in the case of State v. Jukich, 49 Nev. 217,
242 P. 590, 594. In that case, Mr Justice
Ducker summarized the evidence and con-
cluded as follows:

“The appellant, as the evidence shows,
came to the house armed with a deadly
weapon concealed upon his person. With-
out provocation he used it with fatal effect
upon anrinnocent young girl. He attempted
to- kill the mother and a younger sister.
According to the testimony of the latter
he struck her and kicked the prostrate form
of the girl he had shot and killed. He told
the arresting officers that he killed her be-
cause she would not marry him and to keep
any one else from having her. He told the
district attorney shortly after the shooting
that she had previously promised to marry
him; that her mother had promised her
to him, and he had spent all his money on
her; and that on the night of the killing
when he reproached her for breaking her
promise and she told him she did not know
why she refused him, he got excited and
commenced to shoot. His statements dis-
close a motive of revenge, and from all of
the circumstances the jury was warranted
in concluding that the killing was done with
malice and deliberation.

“Whether appellant’s testimony to the
effect that he was so intoxicated as to be
unconscious of what he was doing was true

212 PACIFIC REPORTER, 2d SERIES

or not was for the jury to determine, and
was resolved against him by the verdict.”

[3,4] The law of Nevada, as_ estab-
lished by the decisions of this court, is that
the verdict of a jury will not be disturbed
when it is supported by substantial evi-
dence. We conclude that, in the present
case, the verdict of the jury was so support-
ed.

[5] The defendant assigns as error the
ruling of the trial court admitting in evi-
dence a certified copy of the decree of di-
vorce granted to the deceased in Las Vegas.
The decree stated the ground for the di-
vorce, namely, extreme cruelty. In the case
of Binns v. State, 57 Ind. 46, 26 Am.Rep.
48, cited by defendant, the court states that
the proof of a divorce may have been com-
petent to show the state of feelings be-
tween the parties. We take the view that,
as part of the evidence to show the state
of feeling between the parties, it was com-
petent and relevant to prove the compara-
tively recent granting of a divorce. How-
ever, the inclusion in the proof of the state-
ment in the decree as to extreme cruelty
was incompetent, and it should have been
excluded. The seventeen-year old daughter
of the deceased testified that her mother
and the defendant, prior to the divorce,
quarreled about herself and her brother
and about the defendant’s gambling, and
that on one occasion, at night after retiring,
she had heard them arguing, that it sounded
as though he “slapped her or something”
and that she was crying. On cross-exam-
ination she stated that, while they were
married and living together in Las Vegas,
she had never seen the defendant strike her
mother. We consider it highly improbable
that the recital of extreme cruelty in the
decree added anything to such impression
of cruelty as the jury may have received
from the testimony of the daughter to-
gether with the fact that close relations had
been resumed between defendant and the
deceased after the divorce. Upon the en-
tire record, we do not regard the error in
the admission of the decree in evidence as
resulting in a miscarriage of justice or as
prejudicial to the defendant in respect to a
substantial right. N.C.L. Sec. 11266.

A eh RNR eS

STATE v. GREGORY Nev. 705
Cite as 212 P.2d 701

[6] The defendant assigns error upon
the giving by the trial court of its instruc-
tion No. 14. After defining murder and
distinguishing its degrees and dealing with
the bearing of provocation in determining
the degree, the court gave its instructions
numbered 12, 13 and 14, setting forth, re-
spectively, the provisions of sections 122,
123 and 124 of the Act concerning crimes
and punishments, being N.C.L. Sections
10069, 10070 and 10071, all bearing upon
the subject of manslaughter. Defendant
contends that the court erred in giving in-
struction No. 14 “without including therein
words which would make clear to the jury
that the provocation referred to therein was
the provocation required to reduce the al-
leged killing to voluntary manslaughter”.
Defendant contends that ‘as this instruc-
tion reads it gives the impression to the
jury that to reduce the crime at all,—to
consider heat of passion at all,—the passion
must be irresistible’, and that there should
have been interpolated into the wording of
the instruction words restricting the same
to voluntary manslaughter. The logical
sequence of the three instructions, with
the reference in each instruction to the
subject of irresistible passion, convinces us
that the jury were not confused or misled
by the alleged defect in the instruction re-
ferred to

The defendant further assigns as error
the refusal of the trial court to grant a new
trial or to modify the judgment under the
terms of subdivision 6 of Section 384 of the
Act concerning crimes and punishments,
being N.C.L.1931-1941 Supp. Section 11032.
The subdivision reads that the trial court
has power to grant a new trial,

“6. When the verdict is contrary to law
or evidence, but if the evidence shows the
defendant to be not guilty of the degree of
the crime of which he was convicted, but
guilty of a lesser degree thereof, or of a
lesser crime included therein, the court may
modify the judgment accordingly without
granting or ordering a new trial, and this
power shall extend to any court to which
the cause may be appealed.”

The foregoing provision, enacted in 1931,
evidently was copied from the California

212 P.2d—45

statute as amended in 1927, being Cali-
fornia Penal Code Section 1181. That stat-
ute was considered for the first time by
the supreme court of California in the case
of People v. Kelley, 208 Cal. 387, 281 P.
609. It was later applied by the court in
the case of People v. Daniel, 65 Cal.App.
2d 622, 151 P.2d 275, where preceding cases
were reviewed. Both in California and
Nevada the state constitution provides that
the jurisdiction of the supreme court in
criminal cases is limited to questions of law
alone. The statute referred to came before
this court in the case of State v. Robison,
54 Nev. 56, 6 P.2d 433, 436. In that case,
the court, speaking through Mr. Justice
Ducker, said:

“The evidence is, we think, sufficient to
support the verdict of murder of the second
degree. Consequently we could not re-
verse the judgment on the ground of insuf-
ficiency of the evidence, nor are we author-
ized by statutes of 1931 to modify the judg-
ment to one of manslaughter. The statute
does not purport to clothe the court with
power to modify a judgment in a criminal
case without giving or ordering a new trial,
as a matter of leniency, but only when the
judgment is not supported by the evidence
which does show the defendant guilty of a
lesser degree of the crime for which he was
convicted, or of a lesser crime included
therein. There was, however, as we have
indicated, evidence upon which the jury
could Jegally base a verdict of murder.”

We conclude that, in the present:case, the
trial court did not err in refusing to grant
a new trial for insufficiency of the evidence
to sustain a verdict of murder of the first
degree, nor did it err in refusing to modify
the judgment.

[7] The defendant applies to this court
for a modification of the judgment by re-
ducing the crime from first degree murder
to second degree murder. We can-not say,
using the language of the statute, that “the
evidence shows the defendant to be not
guilty of the degree of the crime of which
he was convicted” and that it shows him to
be guilty only of a lesser degree thereof.
On the contrary, we find that the record
shows there was evidence of premeditation

(atest oem ntatis vianios

| rap wei ghana ley pada or roy yn Arb eI Same emiaaaam « He ly sobshtaacehine aac annd ROR Aide

tes

10 87 PACIFIC

v. Streeter, 20 Nev. 403, 22 Pac. 758; State

y. Hing, 16 Nev. 307; State v. Hymer, 15

Nev. 49. The following language of the in-

struction is that to which exception is par-

ticularly taken: “If convincing and carrying

with it a belief in its truth, you have a right

to act upon it; if not, you have a right

to reject it,” ete. As this instruction has

been given in other cases in this state, the

words we have italicized have been omitted.

It is urged by counsel here that the use

of these words was, in effect, a direction to

the jury that it was entirely optional with

them whether they should act upon tthe

testimony of the defendants, even though

they believed in the truth of the same.

While we think it would have been clearer

to have omitted from the instruction the

words in question we do not think it at all

probable that the jury placed any such con-

struction as contended upon them. In an-

other instruction the jury were told, that
they “must consider all the evidence,” ete.

That a jury would fail to give due con-
sideration to the testimony of a defendant, |
which was convincing and carried with it
a belief in its truth, is too unreasonable for
consideration. We have no hesitancy in say-
ing that the defendants were not prejudiced
by this instruction.

There are some other alleged errors in
the record, but we bave examined them, and
think they are not of sufficient merit to re-
quire notice here. Counsel for defendants
bave dwelt in their briefs upon the point
that the defendants were Indians, and that,
as a matter of general knowledge, intoxi-
cating liquor more readily destroys the ment-

, al faculties of the Indian than it does those
of the white man. It is further argued that:
the very revolting manner in which this
crime was committed tends strongly to prove
that at the time the crime was committed
the defendants were impelled to commit the
murder because of their drunken condition.
We may concede all that counsel has to say
upon this question. This case serves as a
terrible illustration of what may result from
the crime of disposing of spiritous liquors
to Indians. Liquor has the effect of arous-
ing in the Indian all the dormant savagery
and cruelty of his nature. It is a crime in
this state to dispose of liquor to Indians,
and it may not be out of place here to say
that the violation of this law doubtless led
to the revolting murder committed by these
two defendants. The statute of this state
applies the criminal laws to the Indians,
without reservation, other than where the
offense is committed by one Indian against
another upon a government reservation.
Comp. Laws, § 4655. Upon the trial for an
offense, they are subject to the same laws,
rules, and conditions, as govern in the case
of a white man. The case appears to have
been very carefully tried in the lower court.

ee . sananinins
vie ta Bs rah tates iat aha
aie ct! ENE Vie sny eer Se an arts Ds |

Mi edges

REPORTER. ‘ , (Cal.

of error, and our conclusion {is that the judg-
ment of the trial court must be affirmed.
“The judgment and order denying the mo-
tion for a new trial are affirmed, and the
district court is directed to fix a time and
make all necessary and propers orders for
having its sentence carried into effect by the
warden of the state prison.

FITZGERALD, C. J., and TALBOT, J.,
concur.

(149 Cal. 543)

ARROYO DITCH & WATER CO. v. BE-
QUETTE. L. A. 1,634.

(Supreme Court of California. Aug. 18, 1906.
Rehearing Denied Sept. 12, 1906.)

1. WATERS AND WATER CouURSES—IRRIGATION

PrrcuES—REPAIR—LIABILITY OF OWNERS—
STATUTES.

Where land owners constructed an_ir-
rigation ditch, and by custom, prior to the for-
mation of a corporation to operate the ditch,
contributed to the cost: of maintenance above,
but not below their point of diversion,’ a cor-
poration thereafter organized could not compel
a co-owner of the ditch, not a member of the
corporation, to contribute to the. improvement
of the ditch below his point of diversion either
at common law or under St. 1889, p. 202, c.
168, declaring that where two or more persons
construct a common irrigation ditch, each shall
be liable to the other for the reasonable expense
of maintaining and repairing it, in proportion
to his share in the use of the water, etc.

2. SAME—ISSUES AND PROOF.

Where plaintiff sought to recover defend-
ant’s alleged proportionate share of the cost
of all improvements on an irrigation ditch,
and introduced no evidence of the amount of
defendant’s share of the cost of the improve-
ments made above defendant’s point of diver-
sion for which alone defendant was liable, the
court was justified in giving judgment for de-
fendant.

Department. 1. Appeal from Superior
Court, Los Angeles County; N. P. Conrey,
Judge.

Action by the Arroyo Ditch & Water Com-
pany against L. L. Bequette. From a judg-
ment for defendant, plaintiff appeals. Af-
firmed.

Kendrick & Knott and J. H. Ardis, for
appellant. John S. Chapman, J. L, Fleming,
and Goodrich & McCutchen, for respondent.

SHAW, J. This is an action to recover
$364.52, alleged to be due plaintiff as the
defendant’s proportion of the cost of certain
improvements and repairs made by plaintiff
to a ditch owned in common by plaintiff,
defendant and others. About the year 1869
certain persons, each being the owner in
severalty of a tract of land susceptible of
irrigation by water to be diverted from the
stream now known as the “Old Sam Gabriel
River,” constructed a dam in the stream for
the diversion of the necessary water, and
made a common ditch leading from the
dam to, or adjacent to, their respective
tracts of land, by means whereof they there-

We have examined all of the assignments

after diverted water from the stream and

tea re SS

Cal.)

each used
land for i
from tim
of land w:
and in th
became aj
3,950 acre
‘in several
The main
“Arroyo I
from the
tract reac
abut upon
through |
from the
sons own
lateral.
standing,
terested, «
the main!
ditch fron)
it passed
land abut
of depart
if hig land
but did n
maintenal
diteh, as
owner al:
like man)
part of {
which he
tribute t
many ye:
parently
common :
such as W
their cond
quired a 1
mon use <
to his lan
common i
verted fro
of each bi
as the ac
the entire
as entitle
water. hb
mon right:
acquired, |
the water,
tion, and
other clai
whereby
quired th:
divert for
the water
chased fro
tracts of
to the wal
of an int
interest }:
as 40 is to
For con)
ers of all

acres, ors
each taki!
the numb:

era eres,

tote
me

je
ashi . ge ae Evert
df A

ned

aerate ann ob edhe aint ik
+ Weed le 2 Dat

fee fo te8 te shotbe

8 87 PACIFIC

told him if he felt like it he could make
a statement to these men. I told him that
it was not necessary unless he wanted to,
and he said he would tell them. Even if
there was a question as to the admissibility
of these ‘confessions, the error, if any, be-
came cured when the defendant became
a witness in his own behalf, and corrobo-
rated every statement contained in his -var-
ious confessions. People v. Ketchum, 73
Cal. 635,15 Pac. 353; People v. Daniels,
70 Cal. 521, 11 Pac. 655; 12 Cyc. 466.

5. After Ibapah had testified in his own de-
fense, and rested his case, counsel for John-
ny called as a witness Antelope Jack, Chief
of the Goshouts, to testify to the character
of Ibapah. To his testimony counsel for Iba-
pah interposed the following objection: “TI
object to placing any witnesses .on the stand
with reference to Ibapah by the codefendant
Johnny, as it cannot possibly touch the ques-
tion as to who was the instigator of this
crime.’ The objection was overruled, and
we quote from the record the following tes-
timony of the witness: “My name is An-
telope Jack. I live at Deep Creek. I live
there long time. I know Ibapah, since he
was small boy—ever since his father give
him whisky. Ibapah’s father all the time
give him whisky. He is a good boy—every-
body know he is a good boy. Everybody think
when he grow up he was a good boy. Last

* summer Indians think about him, maybe he
kill white man and maybe he kill Indian.
Jiverybody around Deep Creek is afraid of
Ibapah. Ibapah was a little boy when his
father first gave him whisky. I think Iba-
pah was a good boy when he was little.
When he was a boy he was always a good
boy. When he get big everybody was afraid
of him. When he got drunk he was bad:
When he ‘was not drunk he good boy.”
Gonceding, without deciding, that it was error
to have admitted this testimony, we are un-
able to see how it could have been prejudi-
cial to the defendant Ibapah. Ibapah had
already testified that he had killed the de-
ceased by cutting his throat while Johnny
held his hands, and that thereafter they had
thrown the body upon the fire. He was not
seeking to establish innocence of erime, but
his effort was directed to avoiding a convic-
tion of murder in the first degree, by show-
ing that he was in a drunken condition at
the time he killed the deceased, and was
therefore incapable of that premeditation
which is an essential element of murder in
the first degree. Evidence which tended to
show that intoxicating liquor had the effect
of transforming him from a good boy into a
dangerous character, we think could not have
prejudiced the defense, but would rather
tend to strengthen it.

G. Counsel for Johnny assigns error in the
refusal of the court to strike out, upon the
ground that it was hearsay, the testimony
of an Indian witness called “Captain Jim,”

Mh Cina’ % os ao
PRR aration tbe Htc a

REPORTER. (Nev.

the effect that on the night of the killing
the two defendants were at his camp, and
that Ibapah said in the presence of Johnny,
that “Johnny held the man’s hands while
Ibapah cut his throat.” We doubt if the rec-
ord of this testimony will warrant a conclu-
sion that it was hearsay. But, conceding
that it was, the error in admitting it was
harmless, for other witnesses testified to the
same conversation, and Johnny, as a witness
in his own behalf, also testified to the same
effect. People v. Marseiler, 70 Cal. 98, 11
Pac. 503.

7. Upon the law of drunkenness as a de-
fense to crime, the court gave instructions
Nos. 26 and 27 of its own motion, and de-
fendant’s requested instruction No. 5, which

‘instructions read as follows:

“(26) It is a well-settled rule of law that
drunkenness is no excuse for the commission
of a crime. Temporary insanity, produced
by intoxication does not destroy responsibil-
ity, when the party, when sane and respon-
sible made himself voluntarily intoxicated;
and drunkenness forms no defense whatever
to the fact of guilt, for when a crime is
committed by a party while in a fit of in-
toxication, the law will not allow him to
avail himself of his own gross vice and mis- .
conduct to shelter himself from the legal con-
sequences of such crime. Evidence of drunk-
enness can only be considered by the jury
for the purpose of determining the degree
of the crime, and, for this purpose, it must
be received with great caution.

(27) In this case if you find that the de-
fendants unlawfully and with malice afore-
thought, as already defined to you, killed the
person designated as Fred Foreman, it is
murder and if such killing was willful, de
liberate, and premeditated, or was done in
the perpetration or attempts to perpetrate
robbery, it is murder of the firstdegree, other-
wise it is murder of the second degree; and
in determining the degree, any evidence tend-
ing to show the mental status of the defend-
ants is proper for the consideration of the
jury. The fact, if it be a fact, that the de-
fendants were drunk, does not render the
act less criminal, and in that sense it is not
available as an excuse, but there is nothing
in this to exchide it as evidence upon the
question as to whether the act was deliberate
and premeditated or was committed in the
carrying out of an intent to rob. Presump-
tively, every killing is murder, but so far as
the degree is concerned, no presumption aris-
es from the mere fact of killing, considered
separately and apart from the circumstances
under which the killing occurred. The ques-
tion is one of fact to be determined: by the
jury from the evidence in the case, and it is
not a mere legal conclusion, anddrunkenness,
as evidence of a want of premeditation or of
an intent to rob, is not within the rule which
excludes it as an excuse. Drunkenness
neither excuses the offense nor avoids the

who testified upon the part of the state, to

punishment which the law inflicts, when the

LN igh a8 ie tn Be Nie Rohan PR ANAT Ot SN AR neon 3 ai,

wee

Nev.)

character
determin
adnissib]
tion of p:
dence te)
been con
tempt to |
tion of tl
to steal
robbery.
the fact
man who
tion as w
responsib!
In murde
to prove
was com
tempt to
other felo:
volves, of
of mind u
and in pi
condition
considered
matter fo
should be
carefully
the cireun
You shoul
‘tions of m
drink and
and delibe:
prostratio;
incapable
liberation «
ed person !
to take lift
intent, it i
gree of his
ceive it, o1
reason of
Defendai
“You are j
defendants
der in the |
evidence 1
the murde
poison, or |
other willf
killing, or j
perpetrate
liberate pri
‘shown and
doubt, It i:
the killing
the eviden:
to an abidi
sonable dov
and premed
vince you
design and }
and intenti:
the mind o
upon before
in consider
formed in t
ants, you s
any, of drun

jues-

the
it is
ness,

or of

hich
mess

the
i the

—

~NEe

Ney.)

character of the offense is ascertained and
determined; but evidence of drunkenness is
admissible solely with reference to the ques-
tion of premeditation, or where there is evi-
dence tending to show that a murder has
been committed in the perpetration or at-
tempt to perpetrate a robbery, as to the ques-
tion of the existence of the felonious intent
to steal which is an essential element of
robbery. In cases of premeditated murder,
the fact of drunkenness is immaterial. <A
man who is drunk may act with premedita-
tion as well as a sober one, and is equally
responsible for the consequences of his act.
In murder of the first degree, it is necessary
to prove the killing was premeditated or
was committed in “the perpetration or at-
tempt to perpetrate robbery or one of the
other felonies already enumerated, which in-
volves, of course, an inquiry into the state
of mind under which the party committed it,
and in prosecution of such an inquiry, his
condition as drunk or. sober is proper to be
considered. The weight to be given it is a
matter for the jury to determine, and it
should be received with great caution and
carefully examined in connection with all
the circumstances and evidence in the case.
You should discriminate between the condi-
tions of mind merely excited by intoxicating
drink and yet capable of forming a specific
und deliberate intent to take life, and such a
prostration of the faculties as renders a man
incapable of forming the intent, or of de-
liberation or premeditation. If an intoxicat-
ed person has the capacity to form the intent
to take life, and conceives and executes such
intent, it is no ground for reducing the de-
gree of his crime that he was induced to con-
ceive it, or to conceive it more suddenly by
reason of his intoxication.”

Defendants’ requested instruction No. 5:
“You are instructed that in order to find the
defendants or either of them guilty of mur-
der in the first degree you must find from the
eyidence beyond all reasonable doubt that
the murder was perpetrated by means of
poison, or lying in wait, or torture, or by any
other willful, deliberate, and premeditated
killing, or in the perpetration or attempt to
perpetrate robbery. This ingredient of de-
liberate premeditated killing must be clearly
shown and proven. beyond all reasonable
doubt, It is not sufficient that you think that
the killing was deliberate and premeditated,
the evidence must convince you of that fact
to an abiding certainty and beyond all rea-
sonable doubt. The evidence of deliberation
and premeditation must be such as to con-
vince you that the deliberate premeditated
design and purpose to murder was knowingly
und intentionally formed and considered in
the mind of each defendant and meditated
upon before the fatal blow was struck; and,
in cousidering whether such a design was
formed in the minds of each of the defend-
ants, you should consider the evidence, if
any, of drunkenness. If the defendants were

STATE yv. JOHNNY, 9.

drunk at the time, and were too much in-
toxicated to form such a deliberate and pre-
ineditated purpose, they cannot be found
guilty of murder in the first degree, It
is true that drunkenness is no excuse for
the commission of an offense, but neyerthe-
less the jury must consider the evidence of
drunkenness and determine-whether it was
sufficient to so cloud the minds of the defend-
ants as to interfere with the formation of de-
liberate and premeditated purpose to kill.
If the drunkenness was sufficient to create
a reasonable doubt in your minds as to
the existence of such a deliberate premeditat-
ed purpose you cannot find the defendants
guilty of murder in the first degree.”

Counsel for defendants attack the court’s
instruction No. 27 as being an erroneous
statement of the law, ambiguous and mis-
leading, consequently, highly prejudicial to
the defendants. The instruction complained
of was doubtless copied in the main from an
instruction that has a number of times met
with the approval of the Supreme Court of
California. People v. Williams, 43 Cal. 845;
People v. Belencia, 21 Cal. 545; People v.
Lewis, 36 Cal. 581; People v. Ferris, 55 Cal,
592; People v. Jones, 638 Cal. 168; People v.
Vincent, 95 Cal. 425, 80 Pac. 581. The in-
structions upon the law of drunkenness, as
applicable to this case, should be considered
together, The jury, we think, were fairly
and correctly instructed upon this point of
the law. People v. Leonardi, 148 N. Y. 3864,
98 N, Ia. 872; State vy. Hawkins, 23 Wash.
289, 63 Pac. 258; Wilson vy. State, 69 N. J.
Law, 171, 87 Atl. 954, 38 Atl. 428; Ilopt v.
People, 104 U. S. 632, 26 lL. Ed. 873; Booher
y. State, 156 Ind. 447, 60 N. Fi. 156, 54 L. f.
A, 891; State, v. Thompson, 12 Ney. 151. See,
also, 21 Cye. 670; McClain on Cr. Law, § 162.

8. The refusal of the court to give certain
requested instructions upon the law of man-
slaughter was not error, as there was no evi-
dence tending to reduce the offense to the
grade of manslaughter. State v. Donovan, 10
Nev. 86; State v. Millain, 3 Nev. 409; Pirtle
vy. State, 9 Hump. (Tenn.) 663; State yv.
Weaver, 35 Or. 415, 58 Pac, 109.

9, A number of instructions requested by
defendants were refused by the court, either
upon the ground that they were inapplicable
to the case, or that they were covered by
instructions already given. A careful ex-
amination of these requested instructions
convinees us that the court did not err in
their refusal. State v. Buralli, 27 Nev. 54,
71 Pac. 5382; State v. Maher, 25 Nev. 465,
62 Pac. 236.

10. It is contended that the instruction giv-
en at the request of the prosecution relative
to the consideration which the jury should
give to the defendants’ testimony, was errone-
ous and prejudicial. This instruction, sub-
stantially as given by the court in this case,
has heretofore in a number of cases been ap-
proved by this court. State v. Hartley, 22

Ney. 360, 40 Pac. 872, 28 L. R. A. 88; State

Indian Dave exeeuted on _ sf
23, 1885 for the murder of Wang
Ah Dave, a Chinese laborer
{Belmont Courier, Jan.24, 1885,
322)

For acct. of murder see Ibid.,
July 19, 1884,3:6.

‘ over the Elko crossings all through the

day. But freight train crews remem-
bered nothing of three well-dressed
travelers who might have boarded their
cars. All three of the missing men had
often traveled on their trains, taking
blooded stock to markets, and all were
well known to the freightmen.

Sheriff Harper would not believe that
the men had been forced to board a
passenger train or had been shoved into
a freight car at gun’s point. The West
has long since forgotten its heritage of
wild gunplay and abductions under
stress. Such doings are now left to the
effete East, where gangsters live and
work.

Sheriff Harper carefully checked
with each missing man’s family and
learned that, although the two visitors
to the. Basque settlement were bent on

cattle purchase, neither of them carried
any large sum of money. Their busi-
ness would be conducted in the modern
way with bank checks and signed agree-
ments.. Arrascada, too, had no reason
to have more money in his pockets than
would be needed for current expenses.

Still all three of them had. disappeared
and their cars stood empty near the cat-
tle yards. And there was the yardmas-
ter’s report that a fourth man had been
with them when he looked their way.
Posses left for the hills, although
night was coming fast, and rode. into
the dry canyons and to the high grazing
plateaus.

Meanwhile, the sheriff asked railway
officials in nearby towns to warn their
yard police, and requested that box cars
be searched. .

We received Sheriff Harper’s report

Levon Neal, the Ogden cab driver,
right, gave such a vivid descrip-
tion of his kidnaper that police
and G-men were quickly able to

» seize him—but not before the man

had ‘committed four murders,

in Ogden, Utah, and while a description
of the three cattlemen was being broad-
cast over the short wave radio in Ogden
and in Salt Lake City, I told the sheriff
a few troubles we were having of our
own.

Cab Driver Disappears

OR 24 hours we had been trying to
i locate J. Levon Neil, a taxi driver,
who had disappeared at 11 o’clock the
night before. He had answered a call
for a cab and had not been seen since.
His company was disturbed because
Neil was a man much respected and a
lifelong resident of the city. No money
was involved in his disappearance.

I heard Sheriff Harper’s voice over
the phone as I gave him the details. His
tones were strained with worry. It
(Continued on page 74)

ds and face,
t his soiled

s story. He
swering the
ap a fare in

id, his bright
was written
ind the next
)ked into my
he seat back

’s ride over
>yada, with a
ribs. He de-
the cab beside
ded him that
ath would be

feet, at least

Neil said for-
to figure how
um. He told
i. Tm going
West myself.
t knife he had
leg, under his
1a killer.”

at me swiftly.
d sort of color-

id him!”

less. He’d stare straight ahead for minutes
at a time, saying nothing.” ;

“A stir bum!” I exclaimed to Neil. “His
pallor, his eyes and his attitude indicate
he’s just out of a penitentiary somewhere.
He’s dangerous—a prison-made psychopath.
We'll have to stop him. We'll have to get
trace of him before he does something
worse—if he hasn’t done it already. How
did you get away from him?”

“It. was at Montello, Nev., early this
morning. He made me get aboard a freight
in the yards,” Neil continued.

“He ordered me out of the cab, across
the yards and into a box car. The train
was just pulling out, heading East. As
soon as I could I got hold of a brakeman
and he took me up to the engine cab. There
I rode until I got here.”

I sketched the reports from Elko for him.
“Tm going through all the files I can
find,” I said. “It’s our only chance. If we
can find any pictures that even remotely
look like this man, we’ve got a chance to
get him quickly.”

G-Men Put on Case

I picked up the telephone and asked the
long distance operator for the sheriff at
Elko, Nevada.

The telephone rang. It was the Elko
sheriff.

“Your taxi cab is here,” he said.

“How, where was it found?” I demanded.

“In a garage,” he said, “Parked there
by a tall chap who never came back. With
all this excitement about the missing men,
the garage man got suspicious. But this
guy was alone. He parked the car in the
morning,”

“He’s your man!” I told him quickly.
“He must be! I’ll have a rogue’s gallery
record for you in an hour or so.”

“But listen,” the sheriff’s voice warned.
“These three men have disappeared and
your taxi was abandoned here—that’s all
plain enough. But no other car has been
stolen here. How did that guy get away
with three grown and husky men—three
cattlemen who could take care, of them-
selves? And how'd he get out of town with
them? How’d he get from the railway
yards?”

Quickly I sketched the story told by the
kidnaped cabman. I gave him my opinion
of the pallid man’s state of mind and
the possibility of his having been convicted
for other crimes. When I was done, the
sheriff replied in a voice that was low and
shaken ;

“It’s a manhunt then. There’s a connec-
tion, but how one man could get away
with three others and disappear into thin
air beats me. Try to get a photo of finger-
prints. We'll go over the car for prints right
now.

“Okay,” I replied, and hung up. My next
move in the case to help the Nevada sheriff
was to call in the experts of the Federal
Bureau of Identification—the famou
G-men,

“Kidnaping, eh?” the federal agent raised
his eyebrows when I confronted him. “Your
cabman’s story certainly places the case in
that category. It’s a slim chance, but we
may trace your man from his picture.
Meantime, rest the Nevada angles with us.
I'll make the contacts, and the F.B.I. will
look for your man in Nevada.”

The glorious Utah dawn was a red glow
in the windows of my office at the Ogden
police department. No word had come from
Nevada regarding the success of the posses
searching the hills and valleys and villages
near Elko for trace of the missing stock-
men.

On my desk were a hundred rogues’ gal-
lery pictures. Opposite me sat Neil, heavy

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eyed, his face muscles sagging with fatigue.
I took a fresh batch of pictures from an
envelope just received from the Salt Lake
City department.

Tired and discouraged, we pawed over
them.

Neil continued to look at the rogues’ gal-
lery pictures, picking each one from the
desk carefully and scrutinizing it.

“Look!” he suddenly exclaimed, and
pushed a paste board picture across the
desk to me. “It’s the man!”

I stared at the picture, “You are sure?”
I asked. “Make no guesses now.”

“It’s the guy!” he shouted excitedly after
another look at the picture. “It’s the guy !”

A few minutes later the police radio was
broadcasting an alarm to pick up Luther
Jones as the kidnaper of Neil. The regu-
lar radio stations in Ogden and in Salt
Lake City broadcast the name and descrip-
tion with the request that police everywhere
in Nevada take note of it.

I phoned to Elko again and this time
the voice which asked me for every de-
tailed description possible of Luther Jones
was intent and eager.

Seize Suspect in Gambling Den

JONES record typed on the back of the
rogues’ gallery picture told me that he
had been released from the Montana state
prison only two weeks before. His pic-
ture had reached our files with a batch of
likenesses of known automobile thieves. A
checkered criminal career was ascribed to
Luther Jones in the brief record. He had
served three terms in the Montana state
penitentiary for automobile theft and for
forgery. He was once an inmate of the
Crown Point, Ind., jail made famous by its
chummy officials and the late John Dillinger.
Of a year’s sentence Luther Jones had
served only five months in Crown Point
when the doors were swung wide:and he
went free to land in the Montana penitenti-
ary within three months.

I sent the G-men a rogues’ gallery shot
of the wanted man. In Nevada the hunt
was changed from a search for three miss-

-ing stockmen into a grim trailing of a wild-

eyed kidnaper, armed with a gun and knife.

Our man was captured in one of the
licensed gambling halls in the small town
of Carlin, Nev., 26 miles from Elko.

In a poker game, a man quarrelled with
the dealer. Chairs shuffled ominously. A
gun dropped to the floor from the pocket
of the wild-eyed stranger in a quarrelsome
mood. Constable William Thornton strode
between the gaming tables, took one look
at the stranger and arrested him.

“For kidnaping a man in Utah,” he told
Jones at the Carlin lockup when a long
bladed knife was taken from a scabbard
attached to his right leg. “You're the guy
who kidnaped a cabby from Ogden.”

Jones was taken to Elko where Sheriff
Harper talked to him. For hours Luther
Jones resisted the questioning of the sheriff
and’ two inspectors of the F.B.I. The sus-
pect sat bolt upright in his chair, his wild
eyes roving defiantly from one to another
of his inquisitors.

When they told him that the yardmaster
at Elko had seen a fourth man with the
three missing ranchers, he grew thoughtful
and morose, answering questions thereafter
in monosyllables or with a sullen nod. Fol-
lowing what he thought was an advantage
gained, the sheriff returned to the yard-
master’s story a few. minutes later and
told Jones: “James Lynch was close enough
to recognize you. He’ll say you were the
man who was talking to the three near the
corrals,”

Jones seemed to shrink in his chair. His
stomach caved in and even the pallor of
his long face seemed to deepen.

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a eee a nee

“You might find your men,” he said
slowly, “in a little shack across the tracks
from the cattle corrals. Down a piece and
across a little gully. You might find an-
other guy in there with them—an old guy.
It was his shack, he lived there.”

And there by the light of flash lights and
Janterns police found the missing cattlemen
as the first streaks of a Sabbath dawn
came over the eastern hills.

Three men lay dead on the cabin floor,
their hands and feet bound with rough
twine. Across their bodies sprawled a
lifeless fourth—the old man who owned the
shack.

As if the full weight of his crime was
first felt after the bodies had been found,
Luther Jones became sad and thoughtful
in the Elko county jail. He heard the
church bells sounding their call to the
religious Basques. And as the bells rang
out he watched from the barred window
of his cell while a solemn procession walked
from two ambulances in the street and
four burdened stretchers were carried into
the county morgue.

Then Luther Jones began to talk.

“T had a pal—”

A G-man, quickly sensing that an alibi
was being trumped up, frowned and re-
marked sternly: “The truth, Jones—just
tell us the truth.”

Story Shocks State

JONES scowled and bit his under lip.
“Okay, you win,” he said finally.

Then he unfolded the details of one of
the most brutal, cold-blooded killings in the
crime annals of Nevada—a state that,
through its turbulent history, has witnessed
many horrible killings in the days of the
winning of the West. Nevada was shocked.
Utah was horrified.

“J was going to take the car of one of
the men. I saw them standing around and
talking, and none of them seemed armed.

“Tt demanded that one of them surrender
his car key to me. But they joked and
laughed at my demand. I got sore, and

told them to quit stalling. That I was in
a hurry and wanted no fooling.

“All three men each put hands in their
pockets and, fumbling around, brought
them out empty. They all winked at each
other. One said: ‘That’s funny; I can’t find
my key to the car.’

“Chuckling, one of the men made a joke
about all of us having to walk, saying: ‘It’s
a pity, too, with all those nice cars there.’

““All right, we'll walk!’ I said, whipping
out my gun. The men threw up their hands
and I herded them to the little shack across
the tracks. I said I didn’t want to hurt
any of them, and that we would go into the
shack and talk turkey. They all seemed
to think it was quite a joke. I guess I
didn’t look like a tough hombre to them.
But I’m as tough as they come, and I told
them so.

“When we got to the shack the old guy—
the fellow who lived there—came along.
He knew the three men and began to ask
what it was all about.

“One of the men—the Spaniard, I think it
was—told the old man that it was all just a
joke. He said: ‘We're just playing a little
game with Pale-Face here. We have lots
of time, and we'll just wait until he gets
tired then we'll start playing with him—
heh, Pale-Face?’

“That crack made me. mad, I told the
three men to lie on the floor. Then I or-
dered the old guy to tie up the other three.
He refused, and I hit him, thrusting the
gun in his side. The old man then went
about the job, binding the wrists and legs
of the three others with heavy string.
told him to tie the knots tighter—that he
was just tying the men up in such a way
as to make it easy for them to get loose.

“The old guy gave a few extra hitches
to the twine then suddenly turned on me,
trying to fight me and get the gun away.
T shot him. His body fell across the others.

The old man’s body nearly knocked the
wind out of the Spaniard, and he started to
curse and try to work free from his bonds.
His two pals were also trying to wriggle
loose, and I knew that if they could get to

their feet, they would gang up on me,
taking a chance against my gun in the
scuffle.

“I warned the three men to keep quiet
They cursed me in a chorus, and then
things went all red before my eyes.

“T stood in the door, and shot them, One

after the other, I shot, thém.”

From the pockets of the dead men Jones
said he took a total of $40.

“Four men’s lives for 40 bucks!” ex-
claimed a federal agent under his breath as
the other questioners stood aghast at the
killer’s calm recital of the awful slaughter.

After a long pause, Jones drawled:

“But there was a jinx on that dough.
I lost it in the poker game where you

pinched me—every penny of it.

“I figured the game was stacked against
me and that’s what started the racket when
I was pinched.”

First a justice of the peace and then a
district judge and twelve men of a jury
heard this weird confession. Luther Jones
who once used the strange alias ‘“Kincha-
bocker” was charged with the murder of
the three stockmen and of Joe Stecca, the
aged recluse who owned the murder shack.

There was scant hope for him that justice
would prove lenient. But waiting for him
if he should escape a penalty of death, was
our charge of kidnaping prepared by the
F.B.I. and supported by the cab driver’s
positive identification of the man who
forced him from state to state in that mad
night ride.

But we never went to court with the
kidnaping charge against Luther Jones.

He was found guilty of fashioning the
ruthless slaughter of four innocent and re-
spected men.

In the compound of the Nevada peni-
tentiary in Carson City, Nevada’s tiny capi-
tal there awaited a small concrete cell with
heavy glass windows that look like a
ship’s portholes—the original gas execution
chamber.

For his crimes Luther Jones gasped
out his life in the chamber of lethal gas
one January dawn in 1937.

Missouri’s Scarlet Mistress and the Sex-Crazed Pastor

made her brush against him, as though
accidentally, when he stood staring into the
fireplace. It was not strange that this
sober man of God should become inflamed
by the shapeliness of his attractive young
housekeeper.

Because each had been denied the com-
pany of the opposite sex for so long, the
inevitable occurred. Reverend Fain and
Beulah Evans became closer companions
than housegirl and employer—without
benefit of clergy:

(Continued from page 21)

They talked of marriage but the fact
that Fain was 52 and that his wife was but
recently in her grave caused them to hesi-
tate. At any rate, they could keep their
glorious love secret from the rest of the
world. No one need ever know.

But love cannot be kept secret. Soon the
town of Fiske knew of the affair between
the pastor and his housekeeper and vicious
scandal began to spread.

Fain was driven from his church and
his friends of years grew cold and bitter

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toward him, His children were mocked and
scoffed at by their heartless playmates

while Beulah was pointed to as a ruthless, .

enterprising adventuress. No one offered
a word of sympathy or advice. Yet even the
scandal would have been bearable had not
a new and greater pain descended upon
Reverend Fain’s heart.

Beulah, the lovely young goddess for
whom he defied the whole world, had feet
of clay. Slowly at first, then in a mount-
ing wave of stunning force, the truth
dawned upon Fain that Beulah was not be-
ing true to him. She was seeing younger,
more handsome men than he. The over-
whelming passion which had brought her
to him was now as surely taking her away
from him. With increasing regularity she
was going out at night and meeting young
men on the sly.

William C. Fain could hardly believe his
senses, The stories of neighbors had been
trickling in and he had seen with his own
eyes. At last a desperate plan occurred
to him. He confronted Beulah Evans with
her’ guilt and when she confessed it was
true, suggested a plan.

“T will write out an agreement for you
to sign. You will promise that as long as
you live with me you will not go out with

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but it was :
others wot
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What Fa
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Affolder, wi
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At last F
remark one
will soon be
from Pontiac
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mon-law wife
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answered.
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Reverend Fai;
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Stay right here, A
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I'll have to kill y
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love-nest. Instea
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several days she \
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Pallid Kidnaper
Cattle

(Continued from page 17)

seemed unfair to load him with our troubles
when he had such big difficulties of his own.

“T'fl tell the boys about your car and
give them the description,” he said. “A cab
should be easily spotted though—.”

“This cab was an ordinary black sedan,”
I told him, half apologetically. “That’s
what makes this cabby’s disappearance more
serious. The party who called for the cab
insisted on a ‘private’ one. It is a car of
ordinary make and appearance but fitted,
of course, with the necessary meter. Lots
of customers of the cab company make
these requests—but they don’t disappear.”

Then suddenly and within an hour, our
mystery of the missing cabby- was solved
and at the same time the troubles of Sheriff
Harper in’ Elko were increased. He knew
that on his hands was a three-fold kidnap-
ing to be solved.

The missing cab driver walked into my
office while I was still trying to stretch
imagination sufficiently to link his disap-
pearance in some way with the strange
case in Nevada. Neil is a young man, 26
or thereabouts. His strong featured face
was lined with fatigue when I saw him.
A patrolman who accompanied him reported
briefly : “He got off a freight in the South-
ern Pacific yards. The trainmen said he
boarded it at Montello, Nev.”

Montello is a few miles east of Elko. I

and the Missing
Kings

glanced at the cab driver’s hands and face,
grimed with coal dust, and at his soiled
clothing.

And then Neil blurted out his story. He
talked rapidly and told of answering the
call the night before to pick up a fare in
front of an Ogden hotel.

“He got in the cab,” Neil said, his bright

“eyes belying the fatigue that was written
on his dirt-streaked face. ‘And the next
thing I knew he had a gun poked into my
neck and was climbing over the seat back
to sit alongside me.”

Neil told of a wild night’s ride over
Utah’s desert highways to Nevada, with a
gun shoved tight against his ribs. He de-
scribed the agony of hours in the cab beside
a man who frequently reminded him that
when the ride was done death would be
the driver’s reward.

“He was a tall fellow—six feet, at least
—with strange, wild eyes,” Neil said for-
cibly. “I tried a dozen times to figure how
I'd get his gun away from him. He told
me once ‘you’re too watchful. I’m going
to have to kill you and drive West myself.’
He showed me a long, bright knife he had
in a scabbard fixed to one leg, under his
trousers. He’s desperate and a killer.”

“White faced?” I asked,

The cab driver glanced at me swiftly.
“That's right. He was pale and sort of color-

“Heck, everytime we get a good pitcher, they suspend him!”

74 Accept No SupstituTes | Atways Insist oN THE ApDvERTISED Brann!

soon as |

and he too!
rode unt:
cept sketch«
m= goin;
find,” I sai
can find a
look like t
get him qu
C
I picked
long distan
Elko, Neva:
The tele;
sheriff.
“Your ta
“How, wl
“Tn a Za)
by a tall ch:
all this exci
the garage
guy was alo
morning,”
“He’s a
“He an be
record for y:
“But listen
hese three
your taxi w:
plain enough.
stolen here.
with three ¢
cattlemen wh
selves? And }
them? How’

“

Quickly I s
kidnaped cabn
of the pallid
the possibility
el Me a crin
sheriff replied
shaken :

; “It’s a mani
tion, but how
with three oth
air beats me. 17
Prints. We'll go
now.”

“Okay,” I re;
move in the cas
was to call in

ureau of
G-men.

“Kidnapin
. ig, e
his eyebrows wl
cabman’s story
that category.

may trace you
Meantime, rest |
I'll make the co

look for your m:

The glorious |
in the windows
police departmen:
Nevada regardin
searching the hil
near Elko for tr
men,

On my desk we
ery pictures, Op

| White, gassed Nevada (White Pine), 8/22/1942
{ Ana Min, wohn A., white, Beosea Nevada (Whit Pine ) / 7 9 :

A returned valen- _,,,<
tine, a mysterious _ r¢
date—then mur- wha
der with no tapr
known motive. H

BACHELOR——
Jack Kramer was
of the community's
‘solid citizens, but

he was sentimental,

\
N
\
tA

Valen.
®rious
Q muy.

Otive,

t
}

RS. FRANCES JONES shiv-
ered with cold as she waited
in front of Sewell’s grocery
store, in Ely, Nevada, on that freezing night of

February 15, 1940. She pulled the collar of her mink
coat tighter around her neck. She glanced again at her
jeweled wristwatch; it was three minutes past eight.

“Oh, why doesn’t he come?” she exclaimed
impatiently.

She was sorry now that she had promised to meet
the man. Yet her curiosity was piqued. She wondered
what he would have to Say.

The wind whistled around her trim ankles. She
tapped one foot then the other on the sidewalk to keep
them warm.

Her feet were dainty; once they had been her fortune.
Years before they had taken her to Hollywood, and
later to Broadway and Europe. Now, at thirty-nine,
she was back again in Ely where her amazing career
began twenty years before.

But Frances had no regrets. She had drunk deep
from the cup of life. Triumphant success, wealthy
admirers, adulation—all these had been hers.

Now she was back in the uproarious mining camp
that she loved. And she was happy. For three years
she had keen married to Harry Jones, a brakeman on
one of the ore trains going to nearby Kimberly.

Again her glance turned up the street—a street
blazing with neon signs on gambling houses and saloons,
These places were crowded that night for it was pay-
day, but the sidewalks were almost deserted.

Then she saw him coming. He was tall,
broad, powerfully built. He walked swiftly.
He wore a dark overcoat and a black hat that
almost hid his eyes. Loud, hoarse laughter

VICTIM——

Frances Jones worked
as @ nurse among the
Nevada miners after
quitting the’ theater.
At right she is seen
(front row,,. centre)
as a Sennett, beauty.

‘
a}

ON THIS CORNER—
in Ely, Nevada, Mrs.
Jones met her doom.

- COURAGEOUS.
| Mrs. Gussie. Courtney

chased. the murderer,

jet him, Sheriff, 1.
pill” Jones cried.

@ hand over smarting
eyes, he crawled out.

coming from the joints along the street failed
to distract his attention. His hypnotic gaze was
fixed steadily on the woman.

As he approached, she saw there was some-
thing evil, something grimly Sinister, in his
features. In the raw wind, his cheeks. should
have been ruddy; instead they were as pale as
those of a bloodless corpse. iy

Panic seized the woman, but she did not
scream. The muscles of her throat were para-
lyzed. She was like a hypnotized bird, help-
lessly waiting for the snake to strike,

When the man reached her side, he flung his
huge arms around her. A hollow laugh rattled
in his throat. :

At last she found her voice. “Go away,

please! Go away!”’ she pleaded.

The man snarled something in reply, began
forcing his victim toward a dark side street.
She struggled, but. her efforts were futile.

A. Bustamante, a local Paperhanger, saw
them struggling. At first, he thought they were
just playing. But when he saw Frances Jones’
face, he sprang at her assailant with clenched
fists.

The attacker spun on his heels. An ugly smirk
played on his face as he jerked out a long pistol.

The startled Paperhanger backed away.

The big man whirled on his victim. In a flash,
he snatched one of her arms with one hand
while he aimed the gun at her with the other.

A shrill scream ripped from the woman’s
throat. as the gun went off. Before her body
slumped to the sidewalk and rolled crazily into
the gutter, the gun blazed three more times.

The gunman flourished his pistol meaning-
fully at several passersby then darted into the
alley behind Sewell’s store.

3 <i tani:

THE BIG MAN——
Snatched her arm and
aimed the gun at her.

Mrs. Gussie Courtney, Ely tavern
keeper, witnessed the crime from across
the street. .

“Someone call the law!” she shrieked
as she dashed across the street after the
killer.

Dr. W. G. Merrill, whose offices were
over Sewell’s store, hurried downstairs,
pushed his way through the crowd.
He knelt beside the woman and felt
her pulse. Then he pushed back an
eyelid. .

‘It’s no use,” he said. “She’s dead.”

She had died instantly. One of the
slugs had pierced her heart. A crimson
pool spread out from the body and her
mink coat was wet with blood.

News of the tragedy swept through
the mining camp like a roaring wind.
Grizzled miners left gambling tables and
rushed into the street. It fanned hot
flames of vengeance. Frances Jones was
Ely’s idol. ‘

Meanwhile, in the alley, Mrs. Courtney
was gaining ground on the fleeing mur-
derer. :

Suddenly he ‘stopped and turned upon
her. He leveled his pistol.at her.

“Get back!” he snarled. “Another step
and I'll kill you!”

She paused. “I’m not afraid of you—
you yellow coyote! “I started out to get
you and I’m going td!”

As she crept forward in the darkness,
she heard the click of a hammer falling
upon a dead shell. Again the killer broke
into a run, the woman close on his heels.

A strange quirk of fate decided the
contest. A (Continued on page 103)

LAST STAND—— ;
was made by killer in this
lavatory. Note bullet holes.

es ee ee ee hea eae

les dsb ah EN og, bind

But the odds began to be stacked
against him. He hadn’t reckoned on the
enterprising 12-year-old grandson of the
jailer who was a witness to Young’s
breadout. The boy, John Wallick, saw
Young commandeer the Chevy, jumped
into a deputy’s car parked at the curb
and turned on the radio to broadcast the
news of the prisoner’s escape. The
excited youngster also give a good
description of the Chevy, too, and in
minutes the whole county was alerted.

The stolen Chevrolet was first spotted
by City Manager Leon Carver who had
heard all over the radio in his city car.
He lost no time in getting in touch with
the sheriff’s office and concluded,
“Yeah, that was Young alright. He’s got
a woman with him, too.”’

This puzzled the officers for they knew
that Bernice Scott was safe in jail. The

_ information was rammed over the air at

once and amongst those who took notice
was Trooper C.G. Bynes who happened
to be at the right spot at the right time.
He spotted the Chevy heading south-
ward.

Byrnes sped off in pursuit but the fugi-
tive car had a head Start and the trooper

estimated that Young was pushing well
over 100 miles an hour. Once atop the
brow of a hill, the trooper saw that he
had lost the fugitive and realized too late
that Young had turned off onto a road
that would lead him to the Red River and
across the border into Texas.

That state was alerted and all the
necessary actions taken to capture Young
but an hour or so passed and the escapee
didn’t show. Patrol cars were given
orders to roam around and investigate
suspirious parked cars, especially in
remote areas.

Foard County Sheriff Percy Taylor and
Deputy Jake Wisdom also took out along
a back road north of Vernon, Texas and
spotted a car behind a deserted
farmhouse. As ‘they turned into the lace
to investigate, another patrol car with two
deputies arrived. Taylor flagged it down
and Deputies Lambert and Hulsey
stepped out. All four proceeded on foot
to investigate.

Their caution was wasted for the sus-
pect car motor whined into life and
lurched towards the group. They scat-
tered wildly, fearing the worst, but
Taylor managed several shots at the tires

‘bine...

as the lurching car skidded past. The
front tire blew and Young couldn’t main-
tain control while accelerating. Swearing
and fighting the wheel, Young found him-
self stalled in a ditch, his attempt to
escape suddenly and completely ter-
minated.

“Get out of that car!’’ Taylor yelled.
“I’ve still got plenty of shells in this car-
’’? The door opened and the four
Texas officers froze, not knowing what
to expect. But Young got out awkwardly
with his hands raised, as did the woman .
beside him. They didn’t know who she
was. ‘‘I’m his wife,’’ she told them
quietly. The pair was returned to Altus
that same night.

The next morning Ray Young and Ber-
nice Scott were taken to the state prison
at McAlester for security purposes. The
doting wife, Sylvia, was released and wil-
lingly posed for newsmen while vowing
her love for the man who twice tried to
kill her. ea

She attended the trial which sub-
Squently caused Ray Young to pass from
society to the harsh confines of a state
pentitentiary for a life sentence. The two
women in his life faded into obscurity. *

attracted to Thelma as she was to him.
After drinking coffee and having some
small talk, Thelma went to freshen her
makeup. When she came back she said,

“We're leaving now, Lydia.”

“*But you’ve only just arrived.’’

“I broughtGlenn so you could approve
of him.’’

’ The man looked embarrassed. He
shook Lydia’s hand and in a quiet voice
said it had been a’pleasure. She told him
he was welcome any time. As they went
through the door Thelma called, ‘Don’t
wait up! Glenn says we’ll be hitting the
night spots!”’

Early the next morning Lydia looked
into Thelma’s bedroom. She was sur-
prised to see that no one had slept there.
Her hand went up to her mouth. She won-
dered what had happened, then smiled
at herself for any nagging doubts. They
really had been on the town, and she
could wait to hear about it. All the same,
the house seemed strangely empty as she
went to make coffee.

The newspaper was delivered. She saw
the mailman going his round, and
neighbors passed on their way to work,
all without any sign of Thelma. There
was no need for worry, Lydia thought,
but she looked at the phone and said
aloud, **You could have called if you
expected to be this late.”’

Then she jumped at the sound of the
front doorbell. She shook her head. It

No Man Can Flirt With

(Continued from page 39)

was arelief that Thelma was back, though 3

just like her sister to forget the door key.

But it was a policeman at the door.
She looked past him to the street and
then into his face. ‘‘Yes?’”

He stepped forward. ‘‘Are you Thelma
Ribaill?”’

*‘No, I’m her sister. But she lives
here.”’

The policeman showed her a high-
heeled shoe. ‘‘Does she own anything
like this?’’

_ “Yes, it looks like one of the shoes
she was wearing last night.”’

‘‘How about these?’’ The policeman
pulled a white purse and a white hat from
under his arm. Lydia bit a piece of dry
skin off her lip. ‘‘Yes, those are Thel-
ma’s.”’

The policeman looked concerned. He
explained how the clothing was handed
to him by a taxi driver who found them
on the corner of the street. Lydia looked
out again as if she expected her sister
to appear. She asked the policeman,
**‘Where is Thelma?’’

“I was hoping you could tell us that.”’
He took out his notebook. ‘“‘Could we
step inside the house for a minute?”’

After getting Lydia’s name and all the
details she knew of, he asked, ‘‘When
did you last see Thelma?”’

“It was about five-thirty, as she went
with the date I was telling you about.
I was worried to see she wasn’t back this

A Corpse

morning. I thought it was her when you
rang. I rushed to the door... . ’” Lydia’s
lips began to tremble.

The policeman was considerate. ‘‘I
understand you’re upset. Let’s sit down
and get as much information as possible.
We’re not sure yet that there’s any need
to be nervous.’’ Lydia got up to get a
photograph of her sister. And the police-
man said he was going to the sheriff’s
office so there would be a report of Thel-
ma’s not coming back.

Later that day Lydia heard from Sheriff
Jack Goss. Thelma was still missing.
**You mean you have no news?’’ Lydia
asked. |

“*We don’t,”’ the sheriff told her. ‘‘Still,
that could be all right. I’ve checked the
morgues and the local hospitals. And
after quite a search we’ve found this man
Glenn Borden. I left word for him to call
me, but as we haven’t heard I’m going
to his hotel now.”’

The sheriff discovered that Glenn Bor-
den arrived back at his hotel just before
dawn. He had left again during the morn-
ing, and had not yet returned to find out
the police wanted to talk with him. Now
the sheriff phoned to see if he was in
his room.

‘‘There’s no answer to his phone,” the
clerk told him, ‘‘but he came in just a

(Continued on next page)
45

No Man Can Flirt With A Corpse

*. few minutes ago, and I did give him your
message.”’

Sheriff Goss was suddenly more alert.
Through rapid questions he found out
that’ Borden had not made any outside
calls from his room, and the clerk thought
he was up there right now. Goss was but-
toning his coat as he talked. ‘‘I’m going
to be right over. If he starts to leave,
I want you to do everything in your power
to keep him there. You understand?”’

‘“Yes, sir,’’ the desk clerk said,
although he didn’t sound very confident.

Sheriff Goss bustled into the hotel and
was shown toGlenn Borden’s room. Bor-
den was surprised. ‘‘I was just about to
call you,”’ he said. ‘‘As you can see, I
was in the shower.”’ The sheriff looked
in the closets and bathroom, then he said,
**When did you last see Thelma Ribaill?”’

‘*It must have been close to four this
morning when I left her outside her
house. Has something happened to her?’’

**She hasn’t been home since you left
her.””

- Borden hesitated, and the sheriff told
him, ‘‘You’ll be better off not trying to
hide anything.”’

“It’s not that I have anything to keep
back, but there was something strange
happened as I left her this morning.”’

‘*You had some kind of fight?”’

‘‘No. It had nothing to do with me,
directly. As I was saying goodnight to
Thelma a man got out of a light brown
car and came over to her. It was obvious
she knew him, but she asked what he
wanted. He said she knew damn well
what he had come for. And then he pulled
out a gun and stuck it in my face. He
said he would blast my head off if I didn’t
clear off. Well, I didn’t know if the gun
had bullets, so I moved away. I stood
on the corner, watching and trying to
decide if I should go for the police, when
Thelma called to me, ‘It’s okay, Glenn,
I’ll be safe.’ She seemed confident, so
I left them.” :

‘‘And you didn’t bother to call today
to be sure that she was okay?”’

‘‘No,’’ Borden looked apologetic.
‘‘This was only the second time I was
out with her. And I didn’t want to be
involved in any kind of triangle.”’

‘*You didn’t want to be involved. .

'"’ the sheriff started. Then he calmed
down. ‘‘Excuse me. But you know, if
more people would take a little trouble,
even when it could be embarrassing, the
crime rate would drop quite a bit.’’ The
two men stared at each other for a few
‘moments. Then the sheriff asked, ‘‘What
did this man you talked about look like?”’

‘‘He was, well, about as tall as I am;
more heavyset. Must have been getting

. 46

(Continued from page 45)

on forty. And he had dark hair. Oh, and
his voice was low, husky.”’

Sheriff Goss wrote down everything
said. Borden didn’t know what make the
car had been, but he remembered how
Thelma was dressed. He gave details of
where they had been and what Thelma
was wearing. Sheriff Goss seemed to
question Borden casually, in fact he was
using all the cross-examination
techniques available to trip his suspect.
It took time, but he had to be as sure
as possible that he wasn’t leaving a killer
to go free.

After over an hour, he said, ‘‘Okay,
your story seems to check out. I'd like
you to stay here for the next day or so,
in case you can be of help.”

Borden agreed to put off his return to
Chicago, and the sheriff looked at the
clock. “If I leave now I can still talk with
Thelma’s sister tonight.”

Lydia was upset when she opened the
door for the sheriff. ‘‘You still have no
news?’ she asked. He shook his head.

**‘Now let me ask you if you knew of

Thelma being close to someone who was °

about Borden’s height, was thickset, and
dark-haired?”’

At first it looked as if Lydia would say
no. She shook her head from side to side.
‘**‘No one around here. The only person
I can think of who looked like that was
Eugene.”’

‘‘Does he drive a light-brown car?”’

‘‘No. They had a black car. Besides,
he’s living in San Francisco.”’

Suddenly the sheriff snapped his fin-
gers. “‘Did Eugene bring his car with him
when he came for the divorce?’’

‘‘No, he rented one here.”’

‘Give me his address in San Fran-
cisco,”’ he said. .

Lydia fumbled through a bureau
drawer. ‘‘Here it is. And his second name
is Gambetta.”’

The sheriff raced back to his office and
put through a call to San Francisco. He

(Continued on next page)

16 O a

»
a
te isnaee =.

- “For Peter’s sake, all this fuss just because | broke a silly New
- Years resolution.”

she told her sister, ‘‘it was a good thing
you came. You couldn’t keep on like
that.”’

The divorce was messy. Eugene did
everything he could to keep Thelma,
everything except make an agreement to
control his jealousy. He lost his temper
several times in front of the judge. And
when a divorce was granted he stamped
out of the court almost on fire with rage.

A condition of the decree was that
Thelma had to be living in Reno until
the law agreed the break-up was final.
Because Eugene had kept a tight fist on
money in the house, Thelma was just
about broke. She pressed her clothes and
watched the ads each day, as well as
going to ask for work. Lydia told her it
wasn’t really necessary, but her viva-
cious sister said, ‘‘Not only couldn’t I
let you have the expense of keeping me,
but I have to get out. It’s been years since
I’ve had the freedom to do what I want.
Besides, I’m still only twenty-five. Not
all men will want me ina cage like Eugene
did.”’

It hadn’t been easy to find work.
Although Reno had a population of more
than seventy thousand, and was cos-
mopolitan in its way, there were too many
visitors and people passing through for

it to be a town where there was much
trust in strangers. It was Thelma’s per-
sonality and her desire to win that helped
her land a job. And the work as a shill
was demanding. It meant a constant
appearance of cheerfulness and success.
But Thelma needed a time of meeting
people and joining in night life, and she
was saving steadily for her next move.

Lydia did enjoy having her sister in
the house: she listened eagerly to talk
of events at the casino. She never had
the desire or the money to risk gambling.
And she had never been inside a gambling
casino after all the time she had lived
in Reno. Still, that didn’t lessen her
pleasure at hearing of the lights, the color-
ful characters, the clothes, and the winn-
ing-and losing of huge piles of money.
And there were people who would come

‘over and touch Thelma because they

thought luck from her winning streaks
would rub off. And sometimes Lydia
would be concerned about stories of how
a few men would rub against her sister
for other reasons besides wanting to be
lucky.

Lydia said, ‘‘Please be careful. There
are awful creeps on the loose.’ Thelma
came over and hugged her sister. ‘‘Oh,
thanks for caring. And you’re right. But

I won’t mix with anyone you wouldn’t
like. I’ve just had a very tough lesson
in how not to choose a partner.”’

Work at the casino kept Thelma busy
six days a week. On her days off she
usually took advantage of the long sunny
days in Reno. This was her free day, but
she hung around the house. Lydia asked,
**Have you seen all Reno has to offer?”’

. Thelma’s face lit up. ‘‘No, I'll be going
out with someone! met at work. I thought
he would be angry when he lost quite
a few bucks at my table, but he was really
swell to me. His name is Glenn Borden,
and he’s from Chicago. This guy is not
one of your creeps.” :

**What does he do for a living?”’

Thelma laughed. ‘*You sound like you
don’t trust my judgment. I’m going to
bring him here, and then you'll see that
I’m right.”’

It was late that afternoon when Thelma
came up the porch steps followed by a
man in his early thirties. ‘‘Lydia, I want
you to meetGlenn.’’ They all went inside
and up to the top part of the house that
Lydia rented. During the talk Lydia had
the impression Glenn was quiet and seri-
ous. He didn’t seem as if he was as:

(Continued on page 45)

ey:

923 ie
33

eee

See oot Se cn EET es
Degas Sis ith tae!

arranged for Eugene Gambetta to be
called at half-hour intervals until he was
contacted. Then he started inquiries at
car rental agencies in Reno. His suspi-
cions seemed to be proving right. And
Sheriff Goss was feeling a satisfaction,
not only from having the insight to see
what had happened, but because he
hadn’t made a mistake in leaving Glenn
Borden free.

From a garage near the end of the list
came the information that Eugene Gam-

‘ betta of San Francisco had rented a gray

sedan on the day before Thelma was
reported missing. Eugene rented the car

for one day, and failed to bring it back. .

‘“Thank you,” the sheriff said: ‘‘You’ve
been a lot of help.’”’ He renewed the dia-
ling tone, and this time he arranged for
an alarm to be spread through every state
west of the Mississippi. Gray wasn’t the

color reported by Borden, but it was pos- '

sible for him ta have been mistaken in

the dark. ‘
Several reports came through that

night, but none of the suspects turned

out to be Eugene Gambetta. Then the-

next morning two city patrolmen noticed
a car parked on Great Highway just out-
side of San Francisco. Its light gray color
and Nevada license plates made it notice-
able. The two California policemen
checked the number. ‘‘Yes,’’ said one
of the patrolmen to the other, ‘‘looks like
we have a hot one.”’

The man sitting behind the wheel of
the car gave very little sign of being alive.
He was slumped back staring along the
road in front of him. When the police
approached he stared at them blankly.
While one of the officers rapped on the

window the other loosened his holster. -

But there was no need for guns. The win-
dow was slowly rolled down. ~

‘*You Eugene Gambetta?”’

**That’s night.”’

‘*Well, we’re glad to have found you.
Would you get out of the car?”’

The two stood back watchfully.
Eugene swung his legs out and stood on
the road. He was wearing light slacks and
the dark stain on his thigh was vivid. He
looked down when he saw the officers
Staring: ‘‘Yes,’’ his voice sounded as if
he was as. weary. as death, ‘‘that’s Thel-
ma’s blood.”’

‘*Where is she?’’ one of the policemen
asked.

Gambetta didn’t speak. He turned
slowly and made his way to the back of
the car. He tapped the trunk. ‘‘She’s in
here."'

‘“‘Open it up,’’ he was told. He lifted
the lid, and bundled inside was the blood-
caked body of a young woman.

There was no need for any other
words. The officers took Gambetta down
to headquarters, and he was questioned
by inspectors from the homicide squad.
He told the police, ‘‘I only wanted that
Thelma come back to live with me. Life
was nothing without her. She told me we
were through forever. I couldn’t bear that
someone else would have her. I was filled
with rage, and I slugged her with the han-

subscribe today :

dle of my gun.”’ he broke off for a minute
and looked at the ground as if he could
see Thelma lying there.

‘*‘Then what happened?”’ the police
wanted to know.

“I threw her in the car and drove away.
I was going to take care of her. But she
woke up and opened the door of the car.
I tried to drag her back. One hand was
on the wheel, and we were going about
forty. Suddenly her clothing ripped. She
fell out and hit the road with a thud. I
lost my balance and swerved the car. I
didn’t want her to be hurt.”’

Gambetta sniffed and sat rubbing his

eyes until he was told to go on.

“TI went back for her. She was lying
there. I think she was unconscious.
Maybe a dozen cars passed before I
picked her up and bundled her in the

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rer Oeeeer rier rreeec iter rt Oe eererr cit t tr rtrer rere rer ee res

trunk. At first I was going to the police
in Reno, but I lost my nerve and drove
back here. Now I don’t care what hap-
pens to me.”’ :

Gambetta and his confession were sent
back to Reno. Sheriff Jack Goss took
charge of him: he was formally accused,
and kept under strict supervision until
after his trial in case he tried suicide.
Whatever Gambetta’s thoughts about
himself, his case had to follow the process
of the law. Because the evidence and his
confession left no doubt that he did com-
mit murder, the judge put on his black
cap at the end of the trial and sentenced
Eugene Gambetta to death.

Among the possessions left after his
execution was a watch with diamond
studded hands. The inscription read: ‘‘To
Gene with love from Thelma.”’ . *

WANTED:

(Continued from page 35)

his mother and brother at a village a few
miles away. He had taken over practice
of law after his father’s death twelve
years before. When he was brought in
for questioning, the heavily built, thirty-
seven-year-old lawyer laughed at the idea
of being connected with a murder.

The policeman questioning him was
polite but insisted on being satisfied with
his answers before letting him go free.
As the questions were repeated in differ-
ent ways, Pierre Leroy began contradict-
ing himself. .

Firstly, he didn’t know what time he
left his office on the night of April 5. Then
when witnesses were brought he remem-
bered leaving about six o’clock. He
denied ever having been in the area of

‘the murder on the night of April 5. Then
he told police he visited the home of a
woman he planned to marry at eight o'c-
lock. Her name was Madame Beghim-
Mayeur, a divorcee with two children,
whose beautiful home was only a few
minutes ride up the hill from the litter-
strewn lot where Brigitte’s body was'rav-
aged down a dark alley behind the
houses, and then dragged to the center
of the wasteland. |. :

As the suspicious details were
gathered, police searched the home of
Madame Beghin-Mayeur. They found a
blood-stained axe in a garden shed. She
denied knowing how it got there. But at

(Continued on next page)
are

seayenerecesitap apacinneennnE Naty

eee ea

ee,

times and at the time charged in the indict-

STE NTF aR Ss as a, RRL A GENES TRIES

96 82 PACIFIC REPORTER. (Nev.

to which ruling defendant by his counsel
took an exception.”

The defendant presented to the trial judge
what he denominated “Statement to Act as
Bill of Exceptions.” ‘The trial judge refused
to allow the statement as the bill of excep-
tions, giving his reasons therefor as fol-
lows: - “Which so-called ‘Statement. to Act
as Bill of Exceptions’ has been found by
me to be incorrect in the following particu-
lars: * * * In alleging that the witness
Mrs. Gross testified that said witness was
considered and accepted as appellant's (de-
fendant's) wife by the community in which
appellant (defendant) resided at various

ment, when in fact said witness testified
that there were several places in which she
and the defendant resided where she was
neither considered nor accepted as his wife.
(3) In not stating sufficiently the evidence
upon which the court ruled that the witness
Mrs. Gross was not incompetent to testify,
to which ruling the exception was taken.”
The defendant claimed that the witness
Mrs. Gross was his common-law wife, and
that she should not have been allowed to
testify against him without his consent.
This is what he claims as reversible error.
The question whetber or not she was his
common-law wife was one for the trial court
to determine, before admitting her as a wit-
ness against the defendant over the objec-
tion of defendant. It will be perceived from
the bill of exceptions settled and allowed by
the court on this point that the trial judge
found as a fact that she was not the de-
fendant’s common-law wife; and, as the
record stands in this court, this fact, so
found, would determine the case against the
defendant. But inasmuch as the life of a
human being is involved in the matter, we
have read with care the whole proceedings
at the trial, including the testimony of the
witnesses, both that given touching the ques-
tion of admissibility and that given after
being ruled admissible, although these pro-
ceedings are filed here with no other authen-
tication than the certificate of the shorthand
reporter, who was sworn to take down and
report the matter, that they were taken and
reported correctly.
We do not deem it necessary to quote or
substantially state the testimony given on
the question raised, for undoubtedly the tes-
timony showed that Mrs. Gross was not de-
fendant’s common-law wife. She emphat-
ically stated she was not, but was at all
times that she was living with him the law-
ful wife of another man, and that the rela-
tion that existed between her and the de-
fendant was meretricious and adulterous.
She further testified that at the time she
was testifying against the defendant she
was the wife of a man other than the de-
fendant, to wit, Mr. Gross, she having mar-

ried Mr. Gross since her relations with the |

band, Keen, having died before her mar-
riage with Mr. Gross. The defendant’s own
testimony shows that the witness Mrs.
Gross was not his common-law wife. The
defendant testified that he and the witness
Mrs. Gross were not legally and lawfully
married, but that they had intended at some
future time to be legally and lawfully mar-
ried. Under the foregoing circumstances,
there was no error in the admission of the
testimony of the witness. Upon this doc-
trine the following authorities are cited:

vy. Schoonmaker, 119 Mich. 242, 77 N. W.
934; Clark y. Illinois, 178 Il. 37, 52 N. LE.
857; Johnson y. State, 95 Ga. 499, 22 8. E.

273; Cartwright v. McGowan, 121 Ill, 399,
12 N. B. 7387, 2 Am. St. Rep. 105; Hebble-
waite v. Hepworth, 98 Ill. 126; Stolz v.
Doering, 112 Ill. 234; Foster v. Hawley, 8
Hun, 71; Duncan y. Duncan, 10 Ohio St.
181; Williams v. Williams, 46 Wis. 464, 1
N. W. 98, 832 Am. Rep. 722; Janes v. Janes,
5 Blackf. 141; Reeves v. Reeves, 54 Ill. 332;
Drummond v. Irish, 52 Iowa, 41, 2 N. W.
622; Glass v. Glass, 114 Mass. 563; Mar-
tin’s Heirs v. Martin, 22 Ala. 86; Tefft v.
Tefft, 85 Ind. 44; 80 Am. & Eng. Enc. of
Law, 951; 2 Kent, 79.

There was no error in this ruling of the
court. This appeal has no merit, and it
would seem that the only object of it was
for delay.

The judgment of the trial court is affirmed.

POWELL vy. NEVADA, C. & O. RY.
(Supreme Court of Nevada. Sept. 6, 1905.)

1. APPEAL—REHEARING. ee
Questions not raised on the original hear-
ing will not be considered on the rehearing.
[Ed. Note-—For cases in point, see vol. 3,
Cent, Dig. Appeal and Error, § 3221.]

2. SAmE—STATUTE ENACTED AFTER HEARING.
If a judgment was correct ac the time it
was rendered, and was properly affirmed at the
time it was passed upon by the Supreme Court,
the propriety of jts decision cannot be affected
on rehearing by a statute passed after the de-
cision on appeal.
{Ed. Note—For cases in point, see vol. 3,
Cent, Dig. Appeal and Error, § 3223.]
3. NEGLIGENCE — FriguTeNIne Horses —
Sream WHOISTLE.

In an action for personal injuries caused
by a fall from a cart, resulting from plaintiff's
horse being frightened by a steam whistle in
defendant’s railroad shops, an instruction that
there is a distinction between the nature of a
locomotive whistle and a stationary whistle for
the purpose of notice only; the former being
necessary for the purpose of frightening ani-
mals off the track, ete., so that its usefulness
depends on the alarming and frightening char-
acter of the noise it makes, while with respect
to the latter there is no necessity for con-
structing or operating. them so as to alarm an
animal of ordinary gentleness, so that any un-
necessary alarming or frightening use of them
is wrongful, was proper.

(Ed. Note—TFor cases in point, see vol. 37,
Cent. Dig. Negligence, § 31.]

Gefendant had. ceased; her previous hus-

Dennis v. Crittenden, 42 N. ¥. 542; People |

639; Wyre v. State, 95 Ga. 466, 22 S. BE. -

Ney.)

On Rehearing. Affirmed. For former opin-
ion, see 78 Pac. 978.

TALBOT, J. The decision of this court
herein was rendered December 24, 1905, 78
Pac. 978. <A petition for rehearing was filed
January 23, 1905. The order granting the
rehearing did not limit the purposes for
which the rehearing might be had, although
the main inducement for granting one was
the statement in the petition that this court
bad omitted to particularly consider in its
opinion plaintiff’s instruction No. 10, the giv-
ing of which to the jury is said by the ap-
pellant to be the basis of one of its main as-
sertions that the district court erred. The
briefs and the arguments on rehearing, pre-
sented last April and May, covered the con-
tentions previously advanced and more, and
have gone beyond the petition itself, and
further than the questions involved on the
appeal. It is now urged that under the stat-
ute approved February 25, 1905, p::33,_¢,-21
purporting to amend section 197 of the Civil
Practice Act, and which was passed after
the determination of the appeal and after
the filing and granting of the petition for re-
bearing, this court ought to remand the case
because it does not appear that the judg.
ment is supported by a fair preponderance
of the evidence. In opposing this contention
the validity of the amendment is assailed
by respondent. As indicated in the opin-
ion, the evidence is ample to support the
‘erdict under the statute as it stood before
the passage of this late act, Following the
usual precedent, the constitutional questions
advanced by counsel will not be considered
when their adjudication is not necessary tor
® proper determination of the cause. ‘The
ee for respondent asserts that ques-
ri 8 which Were not raised on the original
jeating will not be considered on rehearing,
it cites the following cases so holding:
Sevaiter v. Schafer, 93 Ind. 586; Manor vy.
a 137 Ind. 367, 84 N. BE. 959, 36
-_E. 2101; Tubbesing v. Burlington, 68
owa, 695, 24 N..W. 514, 28.N. W. 19: Goode-
ay x. Litchfield, 59 Iowa, 226, 9 N. W. 107,
Sioa §6; Minneapolis Trust Co. y.
Shesine n, 47 Minn. 301, 50 N. W. 82,. 930;
Seen Vv. Mitchell, 32 N. Y. 702; Kellogg vy.
Penntels 87 Cal. 192, 25 Pac. 677, 12 L. R. A,
om Toes Francisco v. Pacifie Bank, 89 Cal.
Hons eee 835; Marine Bank y. National

is as Ne Ad, 73, 17 Am. Rep. 305. Other
nn 9 Pe ety. this rule are: Jackson-
: = . K. R. Co. vy. Peninsular Co., 17
chats = a sss 27 Fla. 1, 157, 9 South, 661;
7H = bee 108 Iowa, 52, 75 N. W. 645,
te wake ne L. R. A. 209; McDermott v.
netsh Ss s . Co., 85 lowa, 180, 52 N. W.
nae Paki pes Vv. Pingree, 5 Utah, 530, 17
phy = canbe 7 Ags v. Senhenn, 151 Ind.
‘a ae Sh Mn 51 N. E. 88, 41 L. R. A. 734,
Cal 7, % ep. 218; Payne vy. Treadwell. 16

‘< Dougherty vy, Henarie, 49 Cal. 686;

POWELL v. NEVADA, C. & O. RY,

N. E, 722; Lybarger y. State, 2 Wash. St
552, 27 Pac. 449, 1029; Tolman Co. y. Bower-
man, 6S. D. 206, 60 N. W. 751; Robinson v.
Allison, 97 Ala. 596, 12 South. 382 604:
Tlorida Nat. Bank v. Ashmead, 23 Fla, 391,
2 South. 657, 665; Weld v. Johnson Mfg. Co.,
84 Wis. 537, 54 N. W. 835, 998; Moore v.
Beaman, 112 N. ©. 558, 17 S. E. 676: Hud.
son vy. Jordon, 110 N. C. 250, 14°S. BE, 741:
Western News Co. v. Wilmarth, 34 Kan,
254, 8 Pac. 104; Chamberlain v. N. E. R. R
41 S« Cy 399,19 S. ‘B:-743, 996, 25 L.:R; 4
139, 44-Am. St. Rep. 717; Coulter v. Portland
Trust Co., 20 Or. 469, 26 Pace. 565, 27 Pae
266; Merchants’ National Bank y. Green-
hood, 16 Mont. 895, 41 Pac. 250, 851; Cincin-
nati v. Cameron, 33 Ohio St. 836; Hatto v.
Brooks, 33 Miss. 575; Broom's Succession
14 La. Ann, 67; Ryerson vy. Eldred, 18 Mich.
490; Hayne, New Trial and Appeal, S879;
Beck v. Thompson, 22 Ney. 421, 41 Pac 1.
As illustrative of this doctrine, we quote a
few extracts from some of these opinions:>
Manor v. Board, 137 Ind. 394, 36 N. E. 1101:
“Questions waived by silence of the original
brief cannot be presented to this court on a
petition for rehearing. Fleetwood vy. Brown
109 Ind. 567, 9 N. E. 352, 11 N. E. 779; Union
School Tp. v. First Nat. Bank, 102 Ind.
464, 2 N. E. 194; Thomas v. Mathis, 92 Ind.
560.” -Goodenow v. Litchfield: “We feel
constrained to hold that after a cause has
been submitted, determined, and a rehearing
granted, it is too late to raise for the first
time such a vital question as that now made
in the argument filed in aid of the petition
for rehearing; the same not being filed as a
matter of right, but simply as a matter of
grace and favor of the court.” Kellogg v.
Cochran: “We have decided—and “with
manifest propriety—that we will not grant
a rehearing in order to consider points not
made in the argument upon which the case
was originally submitted.” Schafer y.
Schafer: “The appellant, in order to avail
himself of a question upon which to secure
a judgment, must present that question in
his brief upon the original submission.”
The Supreme Court of Florida in Jackson-
ville, T. & K. R. Co. v. Peninsular Co.: “The
proper function of a petition for rehearing
is to present to us any omission or cause for
which our judgment is supposed to be erro-
neous. No new ground or position not taken
in the argument submitting the cause ean be
assumed.” Payne v. Treadwell: “The sec-
ond ground upon which a rehearing is asked
was not taken in the argument or in any of
the briefs of counsel, It is too late to urge
it now for the first time after the case has
been considered upon the points to which
the attention of the court was called, and a
decision has been rendered.”. We under-
stand that appellant, by citing Beck y
Thompson, concedes this to be the practice,
and suggests that it ought not to apply to a
matter that could not have been advanced or

lake Erie R. R
82P—7 Co. ¥. Griffin (Ind. App.) 57

waived at the time of the first argument

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APPEALS

FRANK NEWTON OFFICE SUPPLY—DOTHAN

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Nev.) STATE v. JOHNNY. 3

vounty jail * * * for the term of 180 |

days in addition to said fine,” imposes abso-
jutely a fine of $500 without order of commit-
ment until the same be paid, and an absolute
imprisonment for 180 days, and accused, on
having been imprisoned 180 days, is entitled
to _ discharge, though the fine has not been
paid.

Petition by R. W. Patterson for a writ of
habeas corpus against C. P. Ferrell, sheriff
of Washoe county. Granted, and petitioner
discharged.

M. B. Moore, for applicant. 1. P. Moran,
for respondent.

FITZGERALD, C. J. Petitioner was im-
prisoned in the jail of Washoe county under
a warrant of conmitment made by the justice
of the peace of Sparks township in said
county. ‘he conmitment was in the follow-
ing form: “State of Nevada, Plaintiff v.
R. W. Patterson, Defendant. A complaint
under oath having been filed in this court
on the 30th day of April, 1906, charging said
defendant, R. W. Patterson, of a certain pub-
lic offense, to wit, a misdemeanor, committed
on the 26th day of April, 1906, and a war-
rant of arrest having been duly issued on
said 80th day of April, 1906, for the arrest
of said defendant; and said defendant hav-
ing been duly arrested, and thereafter on
the 2d day of May, 1906, tried before the
court with a jury so found guilty as charged
in the complaint, and all and singular the
law and the premises by the court here un-
derstood and fully considered, and no suf-
ficient cause appearing why judgment should
not be pronounced against said defendant:
Wherefore, it is ordered and adjudged by
the court that for said offense you, the said
R. W. Patterson, be fined the sum of five
hundred dollars, and imprisoned in the coun-
ty jail of said county of Washoe for the
term of one hundred and eightly days in
addition to said fine, from date hereof.
See rrr Tr eer ETE
etme teeta o hl attatched Hitter
Dated in open court the 8d day of May, 1906,
{Signed] James Pollock, Justice of the Peace.”
Petitioner had, with eredits, etc., served the
full term of the 180 days stated in the
conmitment; but had not paid the fine of
$500 therein stated.

Two questions were argued by counsel
in the case: (1) Does the warrant of com-
mitment above stated impose upon the peti-
tioner a fine of $500, and also give him the
privilege of paying the said fine at rate of
one day for each two dollars thereof? And
(2) does the statute warrant the justice in
imposing such sentence, to wit, absolute im-
prisonment for the full term of 180 days,
and in addition thereto imprisonment for
250 days, conditioned upon his failure to
pay the fine of $500? Under the view that
we take of the case, the second question need
not be determined. The sentence in the war-
rant of commitment is plainly: (1) An ab-
solute fine for $500, without order of com-

mitment to prison until said fine be paid
at nate of $2, etc; and (2) an absolute im-
prisonment for 180 days. There being no

-alternative in the first part of the sentence

of discharging the fine of $500 by serving
one day’s imprisonment for each $2 thereof,
such part of the sentence having, as above
seen, been obliterated, such fine is absolute,
and the petitioner could not be imprisoned —
at all under said first part; and the peti-
tioner having with credits, ete., served the full
term of 180 days imposed upon him under
the second part of said sentence, he was, of
course, entitled to his discharge.

It appearing that the respondent herein,
Cc. P. Ferrell, sheriff of Washoe county, has
no legal warrant for longer holding the
petitioner in custody, it is therefore ordered
that the petitioner be forthwith discharged
from custody by the respondent herein.

TALBOT and NORCROSS, JJ., concur.

—o

(29 Nev. 203)
STATE y. JOHNNY et al. (No. 1,695.)
(Supreme Court of Nevada. Oct. 8, 1906.)

1. JurY—SELECTING JURY—IRREGULARITIES.
Though the clerk of the board of county

commissioners cannot legally select, nor urge
the selection of any juror, the board in select-
ing jurors for attendance on the district court
may take advantage of information in the pos-
session of the clerk, so long as it exercises
its own judgment in conformity with the stat-
ute.

[fd. Note.—Ior cases in point, see vol. 31,
Cent. Dig. Jury, § 284.)

2, CRIMINAL LAW—SELECTION OF JURY—
HARMLESS TORROR.

In a criminal ease, it was alleged that
the clerk of the board of county commissioners
was present when the board selected jurors
for attendance on the district court and recom-
mended a Jarge number of electors to be sclect-
ed as jurors. It was not shown that any of
the persons whom the clerk suggested were
among the 12 who tried accused, or were on the
panel drawn from the box and in attendance
on the court at the time of the trial. It was
not claimed that the accused did not have an
impartial jury. Held, that the irregularity,
if any, arising from the conduct of the clerk,
was not prejudicial to accused.

[Ed. Note.—I"or cases in point, see vol. 18,
Cent. Dig. Criminal Law, § 8115.]

3. HomrerpE—INDICTMENT—SUFFICIENCY.
Under Comp. Laws, § 4208, providing that

an indictment shall be sufficient where the act
charged as an offense is set forth in ordinary
and concise language so as to enable a person
of common understanding to know what is in-
tended, ete., an indictment charging that ac-
cused feloniously and of malice aforethought
killed a human being by striking, cutting, and
stabbing, by means of which he died, being in
substantial conformity to the form prescribed
by section 4200, is not open to the objections
that it does not charge accused with murder,
or aver that the acts were done with intent to
kill.

[Ed; Note.—For cases in point, see vol. 26,
Cent. Dig. Homicide, §§ 192-196.]

4, CRIMINAL LAW—TRIAL—SEPARATE TRIAL OF
DEFENDANTS—TIME TO DEMAND SEPARATE
YRIAL.

Comp. Laws, §§ 4825-4827 (Cr. Prac. Act

§§ 360-362), provide that where two or more

AYBE you think I don’t know how to use this
thing, pardner ?”

The speaker was a tall, spare young man of
about 30 years, with a pair of cold-blue eyes in
which there was just a glint of madness—killer eyes any old
officer of the west would have called them, He was a
little drunk and- his unruly brown hair had apparently not
felt a comb for several days. His face was pallid; his lips
were blue and tightly drawn across his teeth. ‘In fact, he

appearance and at-
titude of a most desper-
ate sort of person.
The “thing” to which he
referred was a long-barrelled .22
caliber revolver, which lay on his lap;
he had been carrying it there for hours.
The man addressed as “pardner” wore the livery of a
taxi-driver ; nervously he steered and nervously he glanced
at the man at his side, for LeVon Neal was being kidnapped.
Two hours previous on that afternoon of October 15th, 1936,
the lanky desperado had opened the door of the private
sedan of the boss of the Larrisson Taxi Company, in Ogden,
Utah, and had told him to “get going.”

“Drive out toward the Great Salt Lake a coupla miles,”
the man had ordered, as the city limits. westward were
cleared.

But when finally the road to the lake intersected another
going on westward, the desperado-kidnapper, waved his re-
volver and ordered:

“Keep going if you don’t want a dose of this. I stuck up
a bank back east and they’re on my tail; I’ve got to lam fast.”

LeVon Neal never had a single opportunity to escape;
continuously the captor impressed upon him that death was
very, very near; the revolver was ever ready for action; out-
side Salt Lake, near the city of Brigham, a roadside bill
board read: “THE GENERAL DIED AT DAWN.”

“You'll be the general,” said the kidnapper, “if you make
one false move. This ought to be a one way ride anyhow.
And keep that radio on so that I can tell if they are after me.”
_ Northward and around the end of the great natural marvel
of the mountain states, the Great Salt Lake, the car sped

had altogether the

Horace Heffern
and featuring

‘Sheriff

Charles Harper
Elko, Nevada

peta!

If each of the separate units; relatives, local authorities and G-Men,
had been aware of what the other units knew, the search for three
prominent Nevada cattle men missing from the corral of the
Southern Pacific Railway, a forger and a kidnapper, would have
been concentrated on the same individual

which ther
Officer of
little drunk
felt a coml
were blue

‘56 AMERICAN

on. Out across the more open prairie the motor hummed
toward the Nevada line. Through the sage-brush and the
sand piles Neal drove on; his captor’s conversation was
mostly threats. ae

Occasionally there was a commanded stop for a sandwich
or more whiskey. After the Nevada line had been reached
and dawn had begun to break over the Utah Rockies, the tall
desperado began to brag about his shooting ability.

“Slow her down a little when we see a jack-rabbit,” he or-
dered, “and I’ll show you what happens to people who try
to get funny with me.”

Shortly a long-ear jumped onto the highway and ran par-
allel with the car, his white tail bobbing in the red rays of
the rising sun. The man with the gun leaned slightly out
of the window; there was a snappy bark and the animal
rolled over and over; even in his fright Neal could not
refrain from a remark.

“That was some shot,” said Neal. “You needn’t worry
about me trying any funny business with you; you’re too

ood !”
r The kidnapper grew a little more friendly; he liked the
praise he was getting.

“You're getting sleepy,” he said to Neal. “T’ll take the
wheel for awhile. If you are a good little boy I may give
you a break.”

The sun was up when the car finally neared the outskirts
of Montello, in eastern Nevada. A freight train, like some
giant monster, puffed up a steep slope, moving
slowly eastward.

“Roll out,” said the kid-
napper, stopping ;

Through the willows went the three officers

to pause before a 5 x 8 shack, right, not

over five feet high. Above: the long-
barrelled .22 caliber target gun.

the car. “Here’s
where you get’ that break.
Get in that open car door before I de-
cide to shoot your ears off.”

LeVon Neal needed no second invitation; in a jiffy he
had opened the car door and was speeding toward the train;
he pulled up. inside the car door and looked back; a nasty
smile on his countenance, the bandit was just dropping his
gun into his coat pocket and turning toward the car. Neal
sank down exhausted on a pile of straw, and soon was asleep ;
he awoke when a yard officer began yelling at him in Ogden.
As soon as he could reach a telephone, he informed the
Ogden police of the kidnapping and they realized at once
that they had a ‘case for the G-Men for Neal had been trans-
ported over a State line, a federal offense. The Salt Lake
office was informed’ of the crime and Special Agent P. S.
Bailey, Jr., was immediately detailed to the case.

Neal told Bailey that he was quite certain the kidnapper
had headed on west, toward Elko, the metropolis of north-
eastern Nevada...

And sure enough, early that Friday morning, long before
the G-Men could get the word out to the local officers to be
on the lookout for him, the lean kidnapper, still driving the
Chevrolet, reached Elko in safety, but there he found him-
self in trouble. The car battery was completely run down
from the hard, fast drive, the burning headlights and the
constant use of the radio.

Pulling up at a service station, the kidnapper ordered a
new battery and enquired if his check would be accepted as
payment, saying he had an account in the First National

DETECTIVE

Bank of Elko and wanting to use a counter check from the
pad in the station. The attendant on duty refused the check,
however, and the customer left the station. A few minutes
later he returned with a new battery; as soon as it was in-
stalled he headed west again. .

_ But back in Salt Lake, W. A. Rorer, agent-in-charge of
the local office, was summoning his aces and accepting the
new challenge to Uncle Sam; he didn’t intend the kidnapper
should get away with it. Over the radio, far and wide, the
news went out to be on the lookout for a Chevrolet sedan, the
license numbers being repeated from-time to time, until fi-
nally they reached the ears of someone who had seen them.

Late that same night, it was, when the G-Men received a
telephone call from Francis Young, a mechanic in Harri-
man’s Garage, Elko, informing them that the car was in the
place, even then, for- storage.

Special Agent Bailey left immediately for Elko, for the
trail seemed hot. He arrived there on Saturday morning to
find the city in a turmoil of excitement; Sheriff Charles
Harper’s deputies were jumping hither and yon at a great
rate.

“What’s all the row about, Sheriff?” enquired
Bailey.

“Three of the most prom-
inent men in

all northeastern
Nevada disappeared from this
town in an hour’s time yesterday just as
completely as though they had been buried in an
avalanche,” replied Sheriff Harper, intoning his words
slowly to let the import of them sink in.

“They were Otto Heitman and Walter Godecke, from
down Carson Valley way—big cattle buyers—Heitman was
a county commissioner down in Douglas County,” continued
the sheriff, “and Manuel, Arrascada, North Fork cattle-
raiser; he’s a Basque; big settlement of them out there; he’s
rich and well liked. Hard to tell what those Spaniards will
do if anything has happened to him. He sold a lot of stock
to Heitman and Walter Godecke yesterday afternoon, and he
hasn’t been seen since. Neither have they for that matter.

“It seems, according to old Manuel’s son John, who
rounded me up last night to start a search, that he was to
meet his father in a few minutes at the Commercial Hotel,
here in Elko, after leaving him with Heitman and Godecke
at the Southern Pacific Railway corral, over on the west
edge of town, about three o’clock.

“John said the stock was all loaded when he rode up but
that his father told him the deal would be finished at the ho-
tel, and that he would be down there in about five minutes.”

John Ar
which he
quite a wh
to see wh:
on the Ar
John’s pre
also there.
not sufficie

Also, ab
ecke, Wal
with the c
while awai
down to th
ing near t!
be somewl
town.

But whe

o'clock at n
had arrived
still no sig
Godecke bec
more to the
this did not
Likewise,
had searche
ers. None «
the search r
Hotel about
two were i!
discussion
search woul
the city.
“Undersh«
down,” said

106 . Nevada Historical Society Quarterly

80. José M. Ferrer, III, ‘*The Death Penalty: Cruel and Unusual?’’, Time, 24 January 1972; U.S.

News and World Report, 3\ January de KLVX, **A Deadly Dilemma,’ ’ videotape, Las Vegas,

Nev., August 1973. _

81. Newsweek, 10 July 1972; Time, 10 July 1972; U.S. News and World Report, -10 July 1972:
82. Newsweek, 18 December 1972.

83.. U.S. News and World Report, 4 December 1972.

84. Ibid., 10 July 1972. During the early years of the 1960s, there were attempts in Nevada to
change the state’s capital punishment law,.and to give the governor sole power to commute death
sentences. The efforts were not successful. See Lester D. Summerfield, ‘‘For the Death Penalty,”’
Nevada State Bar Journal 25 (July 1960): 105—118; Charles E. Springer, ‘‘Against the Death
Penalty,’’ Nevada State Bar Journal 25 (October 1960): 210—215; and Joe Digles, ‘‘Sawyer’s
Plan: Execution Law Change Sought,’’ Las Vegas Review-Journal » 24 August 1961.

85.. KLVX, ‘tA Deadly Dilemma.” .

86. ' Nevada, Nevada Statutes 2 (1973): ch. 798, pp. 1,801 —1,807.

Change The Date From November

‘2 to November 3, 1863

_ by William C. Miller

LIKE E. B. WHITE who scurried around, compulsively, straightening pictures
aslant and rugs awry, I must change a date from November 2 to Navember 3,

1863, an inconsequential thing; for November 3, not November 2, 1863, was
the date of the first meeting of the delegates who assembled in Carson City,
Nevada Territory, to ‘‘prepare and frame a Constitution for the State of
Washoe.’ Historically nothing but the date would be changed. Of course an
erratum sheet would have to be printed and inserted in: (1) Myron Angel's
History of Nevada, 1881, calling attention to the error on p. 81; (2) Hubert

- Howe Bancroft’s History of Nevada, Colorado, and Wyoming, 1890, the error

occurring on p. 178; (3) Thomas Wren’s A History of the State of Nevada, 1904,
p. 65; (4) Sam P. Davis’s History of Nevada, 1913, p. 193; (5) James G.
Scrugham’s Nevada, 1935, p. 191; (6) Effie Mona Mack’s Nevada, 1936, p.
250; (7) Effie Mona Mack and Byrd Wall Sawyer’s Here Is Nevada, 1965, p.
78; (8) John Koontz’s Political History of Nevada, 1965, p. 78; and (9) Russell
R. Elliott’s History of Nevada, 1973, p. 78: But one standard work, James W.
Hulse’s The Nevada Adventure, 1972, avoids the error; it cites the year only.
And why not? Think of all the erratum sheets that need nof be printed.

But the historian likes specificity, right or wrong. Those in error—especially
the historians after 1904—should have challenged Angel and Bancroft, regard-
less of what they thought of Wren. Challenging primary sources were available

William C. Miller is Professor of Speech and Drama Emeritus at the University of Nevada. Reno.
He was the first editor of the Nevada Historical Society Quarterly. Mr. Miller's articles have
appeared in the Nevada Historical Society Quarterly, California Historical Society Quarterly,
American Literature, The Twainian, and the Mark Twain Journal. He is-coeditor of Lette rs from
Nevada Territory, 1861-1862. and Reports of the 1863 Constitutional Convention of the Territory
of Nevada. -

1 *sraigants : Bas naleiiesagiperetisanls y wenatenee A

A-HUMANE EXECUTION % Oa ge
HAT. NEVALA'S method of inflicting: the
pe line” most. bumgne-ased ti any ts tate vot he:
cain dd uignstratal y yest nloy vali

dae Sts x a :
aoe “Bab White v was “the tinis a to: nic vt de leails
Hit He aye: of be. State ets Buel. ley

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GEOR ra ater on Cs 5 r oR POI ed

e“ternil ip aii jy human” "a ‘sth OVI

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ile
ree

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ay
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bey
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ie
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¥

KAISER, Charles, hanged Carson City, Nev., May 21, 1909,

AN INUIAN nANUCU

FOR WIFE MURDER

HIS BRETHREN WOULD HONOR
AR Row HIS BORY.

0 epuls Lj

‘The Authorities Fooled Them by Bur-
ial Within Prison Walls.

SQIOLO g
Carson City, Nev., Mav 21.—Charles
Kaiser, an Indian, was hanged at the
state prison in this city today for mur- |
dering his wife at Garnerville on Jan-
uary 6, of this year. The woman he'!
killed was his second mate. |
This is the third Indian to be hanged
at the prison in the last two years,

IT WAS THEIR AFFAIR.

Indians Resent the Interference of the
Whites.

Reno, Nev., Mary 21.—Because more
than 500 Washoe Indians are gathered
in (Carson City and intend When the
body of Charles Kaiser fs turned over
to them by the warden of the prison
to hold a big pow-wow over the
hanged man’s remains, and also be-
Cause the authorities fear trouble as
a result, the body will be buried within
the walls of the prison and tomorrow
morning members of the state police
will order the Indians to disperse.

Kaiser, who was hanged this morn-
ing at 11 o’clock,. was the son of Black
Horse, a Washoe chief. Washoe In-
dians from the nearby reservation re-
sent the interference of the state au-
thorities in their affairs and declare
it was their duty to have hanged Kai-
ser should he have deserved it, in their
opinion,

Ag | Re OAL IC
AR| 20NA — 22,1409

KRAMER, John Ae, white, asphyxiated, Nevada (White Pine Co.) on August 28, 192,

Who killed the M

Aid ‘
.

“4

RAW WINTER NIGHT had come to Ely, colorful

mining camp tucked away in the Egan mountains of

eastern Nevada. An icy wind moaned up the wide
gulch where saloons, gambling houses and honky tonks were
aglow with brilliant neon lights. It was eight o’clock; the
date, February 15, 1940.

Since it was payday the town had gone slightly hog-wild.
Whisky was flowing.as freely as’ water. Gaming tables were
filled to capacity. From the pleasure spots along Aultman
Street, the town’s main thoroughfare, a crazy mixture of
phonograph rhythm and hoarse laughter gushed noisily.

Although the surrounding hills were bare of snow, the night
was bitterly cold. Not many people were on the streets. A
few late shoppers homeward bound and a few lusty miners
searching for new entertainment spots hurried briskly on their
way. Only one person on Aultman Street lingered uncon-

cernedly in the cold.
She was a strikingly attractive woman standing in front

TINS TOE PETRCT TUR. 17619):0

moment, then her gaze shifted across the street as if she in-

of Sewell’s grocery at the intersection of Sixth Avenue. She
was smartly dressed and wore an expensive mink coat. Re-
peatedly her glance turned up the street. Was she waiting
for someone ?

Impatiently she looked at her wrist watch, a handsome piece
studded with diamonds. It was exactly 8:02. She shivered as
she pulled the fur coat more tightly around her neck.

The few passersby noticed her and wondered what she was
waiting for. Some of them spoke to her, and in reply she
nodded friendly greetings.

Presentl} a large, well-dressed man came down the street
from the direction of the luxurious Bank Club. He wore a
long overcoat and a fedora hat that was snapped down over

_his eyes.

Nothing distracted his attention. His eyes were riveted
straight ahead. He took long, swift strides.
awful grimness about his manner.

Quickly the woman saw him coming, and her body seemed
to stiffen. She studied the approaching figure only for a

tended to avoid him.

On the man came. His evil eyes, peering from beneath his ’
hat, were glued upon the woman, When he reached her side, “”

Sat i ta
ho the

There was an . >

SENNETT BEAU

Jones, “Queen of Ely,” was mowed down on the main street!

By JESSE T.
SIMMONS

came along the street, hunched against the biting wind.

“Buster, come here!” the woman called frantically.

The surprised paperhanger leaped toward the struggling
pair. But he quickly stopped in his tracks. The woman’s
assailant swung around like a cat. A pistol glinted in his right
hand. ‘

“Get going—and keep going!” he snarled.

He whirled again upon the woman, snatching one of her
arms. As he held the writhing human target in his grasp,
the gun blazed four times.

Before all the shots were fired, the woman uttered a wild,
piercing scream. But the scream ended abruptly. One of the
slugs had ripped through her heart. She tottered in the wind
‘like a tightrope walker suddenly thrown off balance. Then
she slumped from the sidewalk into the gutter, dead.

Thus ended the amazing career of Mrs. Frances Jones who,
by every right that honorary titles are earned, was undisput-
ably “Queen of Ely.”

In thirty-nine years, her trail had led to Hollywood, where
in the early days of motion pictures she had been glorified
as a Mack Sennett bathing beauty; to New York’s Broadway,
where she had attained fame as a ballet dancer; to Europe,
where she had been lavishly entertained by royalty; and finally,
back to Ely where as a nurse and later a housewife, she had

he grabbed her roughly and whirled her around. rounded out a career that was the envy of women in the mining
The woman was startled, frightened. “Go away, please!” camp where she had earned the right to be called queen.
she cried. She struggled desperately to free herself from his While her life was an open book, widely publicized in the
steely grip. press, her death was a mystery. :
The man muttered a reply that was carried away with the As soon as the mad assassin had cut her down, he flourished
wind. His huge arms encircled her body, and his lips quivered his menacing pistol and fled from the scene like a cowardly
as he bared his teeth. — jackal. He raced a few paces north on Sixth Avenue and

At that moment A. “Buster” Bustamante, a paperhanger,- darted into a dark alley.

piy POAN ie Hed

ECHOOL OF LAW

1058 Ney.

208 PACIFIC REPORTER, 2d SERIES

Plaintiffs obtained a lien foreclosure
GREEN et al. v. HENDERSON et al. judgment for a balance due for labor and
No. 3574. : materials in the construction of a building
by plaintiffs’ assignor, Paul Wagner, for
defendants, at. Las Vegas, Nevada. De-
fendants have appealed from the judgment
and from the order denying a new trial.
The sole issue, as: made by the pleadings
and as defined by statements of counsel to
the trial court and in the briefs to this
court, was whether (a) the contract was
2. Contracts €>175(3) for the construction of the building for the
In action to recover value of materials cost of labor and materials plus 20%, of
and labor furnished, evidence sustained (bh) for the construction of the building
finding that contract was on cost plus basis for an agreed price of $7,000. The judg-
rather than for stipulated price. ment, based upon the court’s findings,
adopted the plaintiffs’ theory of a cost plus:
3: Aupenl and. error. <#if . contract and rejected defendants’ theory
Ldiede de Pager ae oo of a fixed amount contract and found a
tion of testimony by plaintiffs as to Pre | 1. due plaintiffs in the sum of $1,223.-
vailing custom in vicinity to enter into all 03, with interest, costs and $250.00 attorney
building contracts on cost plus basis, but ios: sateen $1,633.82, adjudged a lien
a enka tage erent pe a eS upon the property and ordered a foreclosure
tent evidence was sufficient to support find- Tc i ske daca) eitaaie?:
ing, Supreme, Court would assume that trial
court relied on the competent evidence.

Supreme Court of Nevada.
Aug. 16,1949.

1. Appeal and error €=1010(1)

Findings of trial court will be sus-
tained if there is any substantial evidence
in the record supporting them.

Our task is lightened by the repeated
statements of both parties that the nature
of the contract was the only issue before
t the trial court. While appellants assert
that the decision is against law and that

——

Abpeat from Eighth Judicial Distric

- Court, Clark County; Frank McNamee, cetans wcrsisved in the tgi0b hele fella 3

ey liance is upon the insufficiency of the evi-
Action by J. R. Henderson and L.Glenn gence to justify the decision, and that their
Switzer, co-partners doing. business under motion for new trial on such ground should
the name of Las Vegas Building Materials, fave been granted.
against Pete Green and Norma Green, hus- [1] Respondents rely upon the well rec-
band and wife, John Doe, Richard Roe, orftized rule. thet the findings of the a
Joes Dok Lanne: = copartnership, and court will be sustained if there is any sub-
Roe, Companyy. * eyeporation “sor oe Ue stantial evidence in the record supporting
due for labor and materials furnished in them, citing Friendly v. Larsen, 62 Nev.
the construction of a building. Judgment 135 133 P.2d 747, also a lien foreclosure
for plaintiffs, From the judgment and an ea which in turn cites some fifteen deci-
order denying new trial, aeiradey 7" ions of this court in support thereof. Re-

aes spondents also refer to the recent case of
Judgment and order denying new trial Canepa v. Durham, 65 Nav: = 198 P.2d
affirmed, 290, which again adheres to this rule. Ap-

ize the rule but assert “that
_ Marshall, of Las Vegas, for pellants recognize the rt 5
ot tes there is not one scintilla of evidence to

support plaintiffs’ claim that the contract
was upon a cost plus formula,” and rely up-
on the rule that if there is no evidence to
support the judgment the same may be re-
versed by this court.

Mr. Wagner, plaintiffs’ assignor, testi-
fied that he entered into negotiations with

appellants.

'G. William Coulthard and Milton W.
Keefer, both of Las Vegas, for respend-
ents.

BADT, Justice.
The parties will be referred to as in the
court below.

“STATE y. GAMBETTA Nev. °1059
Cite as 208 P.2d 1059

defendants for the construction of the
building. on a cost plus basis; that there
was an agreciment between the parties as
to the way in which Wagner was to be
compensated for the construction; that
the labor and material were to be paid for
and that in addition he was to get 20%;
that for this percentage he furnished a
Dodge truck, two hand powered saws, a
drilling table saw, a two sack mixer and
other equipment; that he also furnished a
bookkeeper for keeping the books; that
the 20% also covered state compensation
insurance, public liability insurance and
Wagner’s superintendence of the job and
that.the balance of the 20% would be the
contractor’s profit. If the trial court be-
lieved the testimony of-this witness, as it
apparently did, such testimony gives ample
support to the findings and judgment. Mc-
Nee v. MeNee, 49 Nev. 90, 237 P. 534, 537.
It is true that Mr. Green denied this con-
tract, and asserted that Mr. Wagner agreed
to build the structure for $7,000. He points
to Wagner’s application for city building
permit and for Civilian Production Ad-
ministration permit:in both of which the
cost of the proposed project was recited
as $7,000: ‘The trial court apparently con-
sidered this figure simply as an estimate,
which is supported by the fact that the
plans and specifications had not been com-
pleted at. the time... The record contains
other evidence adduced in support of the
respective contentions of the parties, but
we do not find it necessary to discuss the
same. J

[2,3] Appellants further assign as er-
ror the ruling of the trial court permitting
the plaintiffs to introduce evidence of the
prevailing custom in the vicinity at the
time to enter into all building contracts on
a cost plus basis by reason of conditions
then. prevailing. It is true that no such
custom is pleaded and it is also true that
plaintiffs must recover, if at all, upon the
contract between their assignor and the de-
fendants. The trial court apparently per-
mitted the testimony as to this custom as
merely incidental and perhaps as lending
reasonableness and probability to Wagner’s
testimony. 25 C.J.S., Customs and Usages,
§ 32 a, page 125, n. 11. We do not con-
sider the assignment at greater length as,

without the evidence of custom, there was
ample competent, material evidence to sup-
port the finding, and we may assume that
thet trial court relied on such evidence.

The judgment and the order denying de-
fendants’ motion for new trial are affirmed
with costs.

HORSEY, C. J., and EATHER, J., con-
cur.

° KEY NUMBER SYSTEM

anms

STATE v. GAMBETTA. *
No. 3549.

Supreme Court of Nevada,
Aug. 16, 1949.
Rehearing Denied Sept. 26, 19-49.

{. Criminal law ©=438

In murder prosecution, enlarged photo-
graphs of automobile in which state claim-
ed deceased was riding with defendant
shortly before death, and in which body
of deceased was found about 12 hours after
death, were admissible.

2. Criminal law C444

Where witness testified to having taken
and enlarged photographs of automobile
in which state. claimed deceased was rid-
ing with. defendant shortly before death,
and.in which body .of deceased was found
about 12 hours after death, and that en-
largements were a fair, correct and true
representation of scene they purported to
represent, and enlargements corroborated
statements in defendant’s confessions, and
of other witnesses that had seen automobile
answering description of photographed au-
tomobile leaving apartment building in
which deceased had been staying, a suffi-
cient foundation for admission of enlarge-
ments in evidence was laid.

3. Criminal law C=444

Fact that exact presence in hands of
any one person of enlarged photographs
of automobile in which state claimed de-
ceased was riding with defendant shortly
before death, and in which body of deceased

*61éT-QT-OT (eouseM) dS °aon *xfydse foqtum See] ousting *VLLMaNYD

HEH

Eke

HENS

ith
2%

ti Heh

ith

passtit

$
4,

% i . , < 7
7 . .

100 Nevada Historital Society Quarterly

effectively killed bedbugs.®3 Cats were also vulnerable. On the day before ~

Gee’s execution, one or two cats were gassed. According to the Chinese account
published in San Francisco’s Chung Sai Yat Po, ‘‘i-chih lang-tang chih pai-se
ta-mao"’ (‘‘a stray, white, large cat’”.) was administered the gas to test its effect;

and according to Reno’s Nevada State Journal, two kittens were gassed in —

~ rehearsal for the Gee execution.£4 .
‘The fateful day, February 8, 1924, finally came. The weather was cloudy,
humid,-and a cold 49°F in Carson City. Gee Jon arose that morning, and after
fasting for ten days, decided to eat his last meal: ham, eggs, toast, and coffee. At
9:35 A.M., two guards escorted him the distance of forty. yards from his cell to
the gas chamber. He was strapped in the execution chair, and started to weep. At
9:40, four pounds of hydrocyanic acid were introduced into the chamber. *®
-. Hydrocyanic acid becomes volatile at 75°F. But on the day of the execution,
_ the temperature outside of the chamber was 49°F, and-inside the chamber, a
maximum temperature of only 52°F could be attained due to a malfunctioning
electric heater.. Thus HCN was present in the chamber as both gas in the air anda
' pool of potentially volatile liquid on the floor.*®®
Nevertheless, after five seconds of exposure to the gas, Gee appeared uncon-
scious; his eyes remained open, and his head continued to move for six minutes.
The condemned man ceased to move after 9:46. At ten o’clock, the chamber’s
ventilator gate was opened, and a suction fan was turned on. The chamber door
_ was not opened until twelve o’clock noon.§7 oe

After the chamber was properly ventilated, Gee’s body was carried out by the.

prison guard captain and a member of the state police force. It was placed in the
prison hospital and examined by physicians with stethoscopes. Gee Jon was
pronounced dead at 12:25 P.M. by the prison physician, Dr. Anthony Huffaker;
Dr. Joseph B. Hardy of Reno; and Dr. Edward E. Hamer, Ormsby County
physician.** One of the physicians, however, refused to believe that Gee was
permanently dead! pe

Major Delos A. Turner, M.D., of the U.S. Veterans’ Bureau in Reno, wanted
to inject Gee’s corpse with camphor. The injection supposedly would bring Gee
back to life. Turner asked that he be allowed to conduct his experiment ‘‘in the
interests of science.’’ Warden Dickerson wisely refused permission.®® Turner
remained a skeptic. He recommended that all future bodies removed from the
gas chamber be shot or hung to make sure of death being inflicted.7°

But Gee Jon’s body did not receive such treatment. Indeed, not even an
autopsy was performed on it. The corpse was placed in a plain pine box without
the services of an undertaker, and buried in the prison cemetery on a hill
overlooking the institution.7).

Gee Jon met his fate. He was the first man executed by lethal gas in the state of
Nevada and in the United States.72 Yet even after widespread press coverage of
Gee’s execution, public opinion was still divided over the questions of whether
lethal gas was a cruel and unusual punishment, and whether all forms of capital
punishment were actually deterrents to the commission of crimes. In California,
an editorial in the Sun Jose Mercury Herald commented:

One hundred years from now Nevada will be referred to as a heathen

Example For The Nation SEES ae 101

commonwealth controlled by savages with only the outward symbols
of civilization.”*

In Nevada, state prison ‘Warden Dickerson believed that shooting was a more

humane method of execution than lethal gas because death would be inflicted
quicker on a condemned person. Others, like Major Delos Turner, disagreed
with him.74 ee es

There was sufficient dissatisfaction with the state’s 1921 lethal gas execution
law for a movement to be started in the legislature to repeal it. Attempts were
launched during the 1925 session, but the legislators refused to repeal the law
despite pleas from both Governor Scrugham and Warden Dickerson.75 In 1926,
the state executed its second convicted slayer through the use of lethal gas:
Stanko Jukich, a Serbian from Ely. Few cries of protest were heard.76

In the years between 1924 and 1961, thirty-one individuals were executed by
lethal gas at the Nevada State Prison.”? Other states and the federal government
followed Nevada’s example by adopting the use of lethal gas as the means of
executing persons convicted of first degree murder. As late as 1970, the
following states also had laws authorizing the use of lethal gas in the implemen-
tation of the death penalty: Arizona, California, Colorado, Maryland, Missis-
sippi, Missouri, North Carolina, and Wyoming.78
By the early years of the 1970s, however, there were many Americans who

sought to eliminate or redefine the death penalty.7° As late as January of 1972, -
‘eight criminals were under death sentences in Nevada, but none had been
_executed since 1961. At that time, the U.S. Supreme Court started to consider

arguments against the death penalty in the case of Furman v. .Georgia.®®
__ The high Court reached a decision later in the year. By a five to four vote, the

- Court ruled that capital punishment as it had been imposed in the United States

was in violation of the Eighth and Fourteenth Amendments to the Constitution.
Each of the nine Supreme Court justices wrote separate opinions. Capital
punishment had not been uniformly applied for specific crimes, the Court
maintained. Judges and juries had been allowed too much discretion in the
application of the death penalty. Selective application of the penalty was
deemed humane, but nevertheless unconstitutional. The effect of the Court's
decision was to invalidate Nevada's capital punishment law and similar statutes
in thirty-eight other states and the District of Columbia.!

However, the Court's decision did not specifically rule out the possibility of
again imposing the death penalty through the passage of new laws at the state
level which would eliminate the elements of prejudice and chance.8? Chief
Justice Warren E. Burger offered the following opinion:

The future of capital punishment in this country has been left in an
uncertain limbo. Rather than providing a final and unambiguous an-
swer on the basic constitutional question, the collective impact of the
majority's ruling is to demand an undetermined measure of change
from the various State legislatures and the Congress.**

Initial reaction to the Supreme Court ruling in Nevada was one of surprise.
Attorney General Robert List called the action ‘tan insult to Nevada, to its law
and to its people."**#

98 Nevada Historical Society Quarterly

Gee and Hughie were the least sympathetic. Mineral County District Attorney

Jay H. White called the murder of Tom Quong Kee:

purely a clean-cut premeditated murder without any extenuating Cir- -
cumstances. The crime was one of the most atrocious and cold-blooded °
in the-history of the state. Testimony of the trial will show. that
_ applications for commutation of sentence are illogical.in view of the °
facts of the case.*!
In support of the district attorney were ten of the original twelve district court
jurors. Only two of the jurors favored commuting the sentences of Gee and
Hughie to life imprisonment.*?

If the jurors could not agrée on the question of commutation, neither could the
press. Racial considerations were prominent. The Fallon Standard maintained
that if Hughie Sing were white, at most he would have been convicted of second
degree murder. Gee Jon did the actual shooting, not Hughie. The younger
Chinese was merely an accomplice. The Standard’s editorial. concluded by
asserting that if Hughie were white, he would not be in danger of being
executed.*3

In contrast to the Fallon newspaper, the Tonopah Daily Times used the race -

question in a different fashion.-It called the convicted slayers ‘‘Chinese

coolies,’’ and termed the long legal appeal process *‘the stubborn fight waged by -

‘the tongs for the lives of their aITerOnS tools.’ an editor of the Times insisted

that:
the state should serve notice on the high court of San Francisco’ S
Chinatown that its behests will not be obeyed i in at least one state on the
Pacific coast. Let.these murderers survive through commutation or

- pardon—the action would establish Nevada as the ‘slaughterhouse of
’ . the tongs.>4
The race issue thus was used to plead for justice in one case, and to incite. the
“*yellow peril’’ prejudices of white Nevadans on the other.

The racial consideration was kept alive when the board of pardons met in the

governor's office in Carson City on January 25, 1924. Arguments for and ©

against commutation of the death sentences of Gee and Hughie lasted for four
hours, and the room was filled with curious reporters and spectators. James
Frame, representing the Chinese, pleaded for clemency on the grounds of
Hughie’s youth at the time the murder was committed, and Gee’s illiteracy.
Moreover, he gave the race issue still another twist. Mercy should be extended
to the condemned pair, he argued, because of their lack of mental ability, the
inferiority of their race. and the inherent inability of Chinese to distinguish
between right and wrong.®* —

After all the various arguments were considered, the members of the board

voted on the fates of the two convicted killers. In the case of Hughie Sing,

Justices John A. Sanders and Benjamin W. Coleman voted in favor of commut-
ing the sentence, as did Attorney General M. A. Diskin and Governor James G.
Scrugham. Chief Justice Edward A. Ducker cast the lone dissenting vote. In
Gee's case, however, all the members of the board except Justice Sanders voted
against commutation. Hughie’s youth and role as an accomplice were duly

Example For The Nation —. : — 99

considered by the board, as was the fact that Gee did the actual shooting i in the
crime; and the reason why Justice Sanders voted for commutation of both

sentences had to do with his general opposition to capital punishment.>6

Reactions to the board’s decisions were immediate. Carson City’s Chinatown -

- rejoiced in the board’s commutation of Hughie Sing’s sentence. Firecrackers

were lit, and banquets were the order of the day. At the state prison, Hughie was
removed from his death watch cell, and put to work in the prigon laundry.°? Gee
Jon was left to face death alone.

His lawyer, however, was still trying every legal device to stay his execution.
On February 4, Frame asked the state supreme court for a writ of habeas corpus,
on the ground that Gee Jon was insane. The court denied Frame’s petition.*8

At the prison, Warden Denver S. Dickerson requested a medical examination
of Gee to dispel any doubts about his sanity. Dr. John E. Pickard of Reno and
Dr. Anthony Huffaker of Carson City, the prison physician, performed the.
examination and declared Gee sane.>? The conclusions of the doctors, however,
did not discourage Frame.

Failing to get action from the state supreme court, the attorney then appealed
to the Ormsby County district court for an injunction to stay Gee’s execution. He

asserted that Warden Dickerson had not called for a full investigation and
hearing into Gee’s sanity as provided for by state law. Judge G. A. Ballard ©
promptly denied Frame’ s petition for a writ-of injunction. Frame persevered.

On February 7, one day before the scheduled date of Gee Jon’s execution, he

- went into the U.S. District Court in Carson City with an application for a writ of

habeas corpus on the grounds that Gee was being denied due process of law on
account of being insane, and that Warden Dickerson did not have the legal
authority to pass judgment on Gee’s sanity. Judge Edward S. Farrington denied
the application, since Gee’s case arose in a state court, and federal jurisdiction
did: not apply. After Farrington’s decision, Frame appealed to Governor
Scrugham in desperation. The governor, however, did not wish to give any
further consideration to the matter of commuting Gee's sentence.*! Frame had
exhausted all legal possibilities. By the evening of February 7, he conceded
defeat. Gee Jon was to be executed the following morning.

The condemned Chinese murderer was to be gassed to death. On the recom-
mendation of state food and drug commissioner Sanford C. Dinsmore, hy-
drocyanic acid (HCN) gas was chosen as the death dealing agent. At tempera-
tures above 22°F, HCN, is partially gaseous; below that point, it is a liquid.
Because of its susceptibility to temperature changes, HCN could not be shipped
by the California Cyanide Company from Los Angeles to Carson City via freight
or express trains. Therefore, Warden Dickerson sent Tom Pickett, a prison
employee, to Los Angeles. Accompanied by his wife, Pickett drove to southern
California by truck, loaded several tanks of liquid HCN aboard the vehicle, and
transported the cargo back to the Nevada State Prison.*?

To make sure that HCN gas was effective for more than exterminating the San

Jose scale (a parasite) from orange trees (the use to which the gas was most

widely put in southern California), Nevada officials conducted several experi-
ments before the day of Gee Jon’s execution. They found that HCN gas

102 -- Nevada’ ‘Historical Society Quarterly

- When the legislature met in 1973, capital punishment iccisialiog was a
serious topic of discussion. After one hundred days: of ener: = ‘the
legislature passed a new law:

relating to crimes and punishments; ‘defining the offense of capital
murder and providing a mandatory. death penalty therefor; denying
admission to bail for capital offenses; eliminating the death penalty for
other crimes; and providing other matters properly relating thereto.*®

The new law is now in effect. Its constitutionality will be tested in the future.
Whether or not the lethal gas chamber at the Nevada State Prison will ever be
used again remains to be seen. In’ 1924, the Silver State set an example for the
nation by executing Gee Jon through the use of lethal gas. The influence of that
action endures to the present, and will probably last as long as thinking men and
women continue to pose questions about life, death, and justice. |

Notes

1. Young China (Shao- -nien chung- inc ch'en-pao, San Francisco), 28 August 1921; Chinese
World (Shih-chieh jih-pao, San Francisco), 29 August 1921; Chung Sai Yat Po (Chung-hsi jih-pao,

San Francisco), 29 August 1921; Nevada’ State Journal, 29 August 1921, 8 February 1924; Walker | ;

Lake Bulletin, 3 September 1921; ‘Transcript of Preliminary Examination,’’ State of Nevada v.

Gee Jon and Hughie Sing, Justice Court of Mina Township, Mineral County, Nev., 9 September ,

1921,-pp.-5, 19-20, 22, 28, 30, 39, located i in a case fileno. 56, District Court Clerk, Mineral
County, Hawthorne, Nev.

2. For explanations about the origins of the tongs, consult John K. Fairbank, Edwin O. Reis-
chauer, and Albert M. Craig, East Asia:Tradition and Transformation (Boston: Houghton Mifflin
Company, 1973), pp. 467-468; Immanuel C. Y. Hsu, The Rise of Modern China (New York:
Oxford University Press, ]970), pp. 170—171; Him Mark Lai and Philip P. Choy, Outlines : History

- of the Chinese in America (San Francisco: Chinese-American Studies Planning Group, 1973), pp.
123—125; Stanford M. Lyman, The Asian in the West, Social Science and Humanities Publication,
no. 4 (Reno and Las Vegas: Desért Research Institute, University of Nevada System, 1970), pp.
33-46; and Betty Lee Sung. Mountain of Gold: The Story of the Chinese in America (New York:
The Macmillan Company, 1967), pp. 137-138.

3. Gilbert G. Weigle, ‘‘ Youth’s Love of Slave Girl Starts Death,”’ San Francisco Examiner, 28-

August 1921. This article is valuable because it describes San Francisco’s tongs as being divided
into two opposing sides, and touches- upon the generally supposed reason for the outbreak of
hostilities. Other aspects of the article describing Chinese life in California, however, tend to be
fanciful. Also consult the reminiscences of Lew Wah Get, an officer of the Suey Sing Tong, in
Victor G. Nee and Brett de Bary Nee, Longtime Californ’: A Documentary Study of an American
Chinatown (New York: Pantheon Books, 1972),.pp. 80-83.

4. Young China, 28 August 1921; Chinese World, 29 August 1921; Chung Sai Yat Po, 29 August

1921; San Francisco Examiner, 29 August 1921. Tong violence had been going on in the San
Francisco Bay area throughout that week. See the Duily Palo Alto Times, 23-24 August 1921; San
Jose Mercury Herald, 23-25 August 1921; San Francisco Examiner, 23 August 1921; Chinese
World, 23-24 August 1921; and Chung Sai Yat Po, 23 August 1921.

5. San Francisco Chronicle, 28 August 1921; San Jose Mercury Herald, 28, 30 August 1921;
Sacramento Bee, 29 August 1921.

6. Young China, 1 September 1921.

7. Ibid., 4 September 1921; Chinese World, 5-6 September 1921.

8. Transcript of Preliminary Examination.”* p. 40.

9. Ihid., pp. 1S, 17, Nevada, Supreme Court, Nevada Reports 46 (1922 — 1923): 425 - 426,
Nevada State Journal, 29 August 1921, 8 February 1924. For a totally inaccurate account of their

Example For The Nation . . 103

arrest, see Myrtle Tate Myles, Nevada's Governors: From Territorial Davs to the Present,
1861-1971 (Sparks, Nev.: Western Printing and Publishing Company, 1972), p.'255.

10. Confidential files no. 2320 and 2321, Nevada State Prison, Carson City (hereafter referred to
as NSP-2320 and NSP-2321).

11. Nevada, Seventh Judicial District Court, County of Mineral, Stare of Nevada v. Gee Jon aus

_ Hughie Sing, trial transcript, 28-30 November, 1-3 December 1921, pp. 212-214, NSP- eons:

Reno Evening Gazette, 7 February 1924.

12. NSP-2321. ee Se
13. Chinese World, 29 August 1921; Nees State Journal, 31 August 1921.

14. Nevada, Supreme Court, Nevada Reports 46 (1922-1923): 427-428.

15. Sacramento Bee, 29 August 1921; Nevada sisid Journal, 8 February 1924; ‘* Transcript of
Preliminary Examination,’’ pp. 28, 30..

16. ‘‘Transcript of Preliminary Exeosnadion,”* p. 71; Nevada State Journal, 2 September 1921;
Walker Lake Bulletin, 3 September 1921.

17. Nevada State Journal, 2 September 1921. :
18. ‘Transcript of Preliminary Examination,’’ pp. 1, 72.

19. Nevada, Seventh Judicial District Court, County of Mineral, State of Nevada v. Gee Jon and

Hughie Sing, trial transcript, 28-30 November, |—3 December 1921, pp. 211-212, 225-228,
NSP-2321.

20. Nevada State Journal, 8 February 1924.

21. ‘‘Transcript of Preliminary Examination,’’ pp. 14-15, 17; Nevada State Journal, 30-31
August 1921, 8 February 1924; Carson City Daily Appeal, 25 January 1924.

22. Carson City Daily Appeal, 5 ‘Decne 1921; Nevada, Revised Laws 2(1912): sec. 6, 386. p.

1,832.
_ 23. Carson City Daily Appeal, 26 January’ 1922; Nevada, Nevada Statutes (1921): ch. 246. p.

387; Nevada, Legislature, Assembly, Journal of the Assembly, 30th sess. (1921): 247, 301, 314;
Nevada, Legislature, Senate, Journal of the Senate , 30th sess. (1921): 255, 257, 262, 272; Nevada
State Journal, 29 March, 8 December 1921; Arnold Kruckman, - **Will Use Lethal Gas on Con-
victs,’’ Pioche Record, 19 August 1921.

For general histories of capital punishment, see George Ryley Scott, The History of Capital

’ Punishment (London: Torchstream Books, 1950) and John Laurencé, A History of Capital Punish-

ment (Port Washington, N.Y.: Kennikat Press, 1971). A dispassionate professional interpretation of
the 1921 Nevada law is Raymond Hartmann, **The Use of Lethal Gas in Nevada Executions,” Sr.
Louis Law Review 8 (April 1923): 164-168.

There are two different and opposite interpretations .of Governor Boyle's motives in signing the
lethal gas execution bill: Kruckman, Pioche Record. 19 August 1921; and Hugo Adam Bedau, ed., -
The Death Penalty in America: An Anthology, rev. ed. (Garden City, N.Y.: Doubleday and
Company, Inc., 1967), p. 18. ae

Several general works dealing with Nevada history and government mention the Gee Jon case. but
only in acursory fashion: Richard G. Lillard, Desert Challenge : An Interpretation of Nevada (New
York: Alfred A: Knopf, Inc., 1942), pp. 39-40; Effie Mona Mack, Idel Anderson, and Beulah E.

- Singleton, Vevada Government (Caldwell, Idaho: The Caxton Printers, Ltd., 1953), p. 167: and

Effie Mona Mack and Byrd Wall Sawyer, Here Is Nevada: A History of the State (Sparks, Nev.:
Western Printing and Publishing Company, 1965), p. 173.

Incorrect dates are given in James G. Scrugham, ed.. Vevada: 4 Narrative of the Conquest ofa
Frontier Land, 3 vols. (Chicago and New York: The American Historical Society, Ine., 1935),
1:549. n. 5: and Myles, Nevada's Governors, p. 255. :

Probably the most fabricated, romantic, and factually inaccurate account is George V. Bishop,
Executions: The Legal Ways of Death (Los Angéles: Sherbourne Press. Inc... 1965), pp. 160— 163.
24... Walker Lake Bulletin, 16 June 1923: Nevada State Journal, 8 February 1924.

25. James G. Scrugham to J. W. Kime, 9 ve 1924. NSP 2320.
26. Carson City Daily Appeal, 28 February 1922. Copeland C. Burg. Fight on to Repeal Gas

96 ‘Nevada. Historical Society Quarterly

_could possibly save the pair. They were ably represented by attorney James M.
Frame. After Judge Walsh pronounced death sentences on the two Chinese,
Frame moved for a new.trial. Walsh denied the motion, and Frame was ready to

appeal to the state supreme court.3!

After their trial at Hawthorne, Gee and Hughie were taken under the custody .

of Sheriff Frederick B. Balzar to the state prison in Carson City, where they were
to be incarcerated until their sentences were carried out.?? Hughie was confi-
dent, but also prepared for the worst:
I don’t think there’s-no hope, unless maybe the supreme court does

something. Our lawyer said he'd file something in the supreme court
within thirty days, but if the court don’t act I guess we’ ll have to die. 33

During the latter part of February 1922, Frame filed an appeal with the state :
supreme court, contending that execution by lethal gas constituted cruel and -

unusual punishment. The appeal automatically served as a stay of execution for
. the two men, who originally had been ordered executed between April 16—22,
1922.4 The first of a long series of legal maneuvers started.

In January of 1923, the court rendered a decision on the 1922 appeal. The
murder convictions were sustained, lethal gas execution was held to be neither
cruel nor unusual. punishment, and the state’s execution law was deemed
specific and precise in the wording of its title. Moreover, a defense motion for a
new trial was denied.*5 .

Undaunted, attorney Frame filed another appeal to the state supreme court for _

a rehearing of the Gee and Hughie case. The court reacted unfavorably.*® Frame
. and his partner, Fiore Raffetto, then decided to apply for a writ of certiorari in

the U.S. Circuit Court of Appeals in San Francisco. They stressed the refusal of -
Nevada’s highest state court to grant Gee and Hughie separate trials, the cruel -

and unusual nature of lethal gas execution, and the defective wording of the title
of Nevada’s 1921 capital punishment statute.%7

Nothing much happened as a result of the action, however, for the Nevada
Supreme Court refused to give its assent to be sued on the writ. Thereafter, the
attorneys for the Chinese petitioned the state supreme court a second time for a
rehearing; and again, the court ruled in the negative. According to the court’s
procedures, second petitions for rehearings were not allowed. In addition,
defense counsel wanted to argue the case on new grounds beyond those con-
tained in the first petition. Therefore denial of the second petition was certainly
justified. 38 .

By the first part of September 1923, the U.S. Supreme Court seemed to be the
court of last resort. Attorneys Frame and Raffetto applied to the state supreme
court for a writ of error, so that the case of Gee and Hughie could be carried to the
nation’s highest tribunal. On behalf of the state court, Chief Justice Edward A.
Ducker denied the application for the writ.*” The judicial road, however, was
not completely blocked. If one of the justices on the U.S. Supreme Court was
willing to hear a petition for a writ of error, then he and his fellow justices could
hear the case even with the prejudice of the Nevada Supreme Court's refusal to
grant a writ of error.'" A petition for a writ of error was first presented to
Associate Justice Joseph McKenna, and then to Chief Justice William Howard

Example For The Nation. oe 97.

Taft. Both members of the highest court refused to permit the petition to be.

- filed.*! Thereafter, Frame and Raffetto could only direct any further efforts to.

spare the lives of their clients toward state officials. oe. ‘

In January of 1924, the two attorneys tried to persuade the state supreme court
to allow a petition for a writ of prohibition to be filed, whereby District Judge
Walsh would be restrained from setting a date for the execution of Gee and
Hughie. The title of the execution law, according to Frame and Raffetto, did not
specifically cover the subject of lethal gas execution. If the law was invalid for
that reason, an execution date could not be set until the title of the law was

_ changed. The court considered the title of the law valid and sufficient, and

denied the petition.*? By mid-January, most of the legal avenues of appeal were
exhausted. About the last group that might be approached was the state board of
pardons, consisting of the governor, the three state supreme court justices, and
the attorney general.43 | a ae

Believing that the board would be swayed by the nature of public opinion,
Frame and Raffetto started to circulate petitions in various parts of the state: four
in Reno, one in Carson City, and one in southern Nevada.*4 The petitions,
addressed to the board of pardons, declared:

The undersigned respectfully petition your honorable body to commute
the sentence of Gee Jon and Hughie Sing, Chinese, from death to life
imprisonment. a a

We are informed that Hughie Sing is a mere boy, being only nineteen
years of age at the time of the commission of the crime, and-that Gee.
Jon was at the time of the commission of the crime an illiterate Chinese
unacquainted with American customs and not likely to fully know and
appreciate the enormity of the act. ;

We feel that the extreme penalty should not be exacted and think that
commutation of the sentence to life imprisonment would fully vindi-
cate the law and subserve public good and avoid the horror of taking
human life by administration of lethal gas, a new and untried method.**

- In addition, the two lawyers sent more than four hundred letters to prominent

Nevadans, imploring them to intercede with the board on behalf of Gee and
Hughie. *6 a

Frame and Raffetto became engrossed in trying to save the two Chinese. They
dropped all of their other case work to concentrate on Gee and Hughie.*” Time
indeed was running short. Judge Walsh set February 8, 1924 as the date of
execution.*® The board of pardons would meet on January 25.49

Public opinion, on which the two defense attorneys hoped to rely, proved to
be quite varied. Several different matters had to be weighed: the racial and ethnic
origins of the two condemned slayers; the nature of their crime; whether or not
they deserved to be executed; and the mode of their execution. On the various

- petitions circulated, about five hundred signatures were obtained. Petitions were

sent to the board of pardons from students on the Reno campus of the University
of Nevada, the League of Women Voters in Reno, and from the citizens of Reno
and Carson City. Letters to the board calling for life imprisonment instead of
death for the Chinese also arrived from Reno, Dayton, and Genoa.*°

On the other hand, those most familiar with the actual crime committed by

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‘elaimed to have been made from their bill

94 a2 PACIFIC REPORTER. (Cal.
opium, is the value of an article correspond-
ing to the warranty, deducting the value, if
anything, of the article sold;: and if the ven-
dor [vendee] has in the meantime sold the
article with a like warranty, the sum paid on
a judgment obtained against him, in an action
brought by his vendee for @ preach of that
warranty, 48 prima facie evidence of the
amount which he can recover of his vendor;
and if he gave notice to his vendor of the com-
mencement of that action, he may also re-
cover his taxable costs therein; but he can in
no case recover counsel fecs paid for the de-
fense thereof.” (The italies are ours.) The
same rule is laid down as to taxable costs in
a similar case in Coolidge v- Brigham, 5
Metce. 68. - In this case it is not shown that
defendants gave plaintiff notice, either of the
suit they brought against Glenn & Handley.
or of the counterclaim set up by Glenn &
Handley. Neither the interest on the prin-
cipal of defendants’ claim, nor the costs or
attorney’s fees, should have been included in
the damages found; and the finding that de-
fendants were damaged in the sum of $883 is,
therefore, not supported by the evidence.

It is urged by appellants that, the engine
having been retained after examination and
trial, all defects were waived, and no action
svould lie in favor of defendants on account
of the breach of warranty. This is not the
law. On the contrary, one puying with a
warranty, on discovering tbe breach of war-
ranty, may either return the goods and re-
scind the eontract, or he may retain the
goods and pring an action for the breach of
warranty, or plead the breach as an offset in
any action prought by the vendors for the
purehase money. Polhemus V. Heiman, 45
Cal. 573. Indeed, the various authorities
cited by appellant concede this to be the
rule.

It is also urged by plaintiff that all dam-
ages arising from the breach of warranty
were paid by appellant by the credit given
defendants shortly after supplying the new
governor. We do not think that this conten-
tion can be sustained. It is probably true
that it was believed at the time the said
eredit was given that the new governor had
remedied all defects in the working of the
engine, but this proved not to be true. Ap-
pellant, in giving the credit, made a payment
which it was legally pound to make, and
there is nothing in the record to sustain the
proposition that there was any agreement,
express or implied, that by so doing it re-
lieved itself from liability for any future
damage that might result from an effort to
use the engine. On the contrary, it is quite
evident that it was intended that Glenn &
Handley should, after receiving the new f£0v-
ernor, continue the use of the engine. They
did so, and were put to much expense in so
doing, for which defendants were liable to
them, and appellant as the original warrant-
or to defendants.

on account of this engine was the sum of
$219. Nevertheless the court fixed their dam-

attorney's fees, $20 court costs, and $544
interest on defendants’ total claim against
Glenn & Handley. The Dill of defendants
against Glenn & Handley included many
things besides this engine, and amouuted
originally to upwards of $4,600, and at the
time of the bringing of the suit to over $2,-
500. ;
The Civil Code (section 3313) provides that
“the detriment caused by the breach of a
warranty of the quality of personal property
is deemed to be the excess, if any, of the
value which the property would have had at
the time to which the warranty referred, if
it had been complied with, over its actual
ydlue at that time.” Section 3314 provides
that ‘the detriment caused by the preach of
a warranty of the fitness of an article of
personal property for a particular purpose
is deemed to be that which is defined by the
last section, together with a fair compensa-
tion for the loss jneurred by an effort in
good faith to ‘use it for such purpose.” No
evidence was given as to the actual value of
the engine, but all the evidence of damages
was directed to consequential damages or
loss incurred by an effort to use it. Speak-
ing of consequential damages in cases of
preach of warranty, the court said in Wilson
vy. Reedy (32 Minn. 256, 20 N. W. 153): ‘““The
rule as to this class of damages, aS laid down
in Hadley Vv. Baxendale, 9 Exch. 341, and
approved in Paine vV. Sherwood, 21 Minn. 225,
and in Frohreich Vv. Gammon, 28 Minn. 476,
481, 11 N. W. 88, is that such damages are
recoverable when, from the circumstances
of any particular case, they may reasonably
have been supposed to have been contemplat-
ed by the parties, when making the contract,
as the probable result of the preach.” The
evidence in this case does not show that the
delay in paying defendants’ pill against
Glenn & Handley was caused solely by con-
troversy over the engine; but, if it did, we
do not think that such loss can be reasonably
supposed to have been contemplated by
plaintiff and defendants when the engine
was sold by plaintiff to defendants.

We have been cited to no case where attor-
ney’s fees have been allowed to swell dam-
ages in cases of breach of warranty on sale
of personal property; but, on the contrary,
in the case of Reggio v. Braggiotti (7 Cush.
166), cited by respondent, it was held that in
no ease can the attorney fee, paid by the first
vendee in defending himself in suit prought
by his subvendee, be allowed to swell dam-
ages against the original vendor. The sylla-
bus in this last-mentioned case SO completely
fits the case at bar that we quote it in full:
“The measure of damages, in an action
prought for a preach of an implied warranty
of the genuineness of an article sold as

Practically the same matter, coupled with

Ney. I Cc CK

cau
am. no ee to said testimony was
ee cae the bill of exceptions
re as allowed by the said judge is as
; ws: One Mrs. Kate W. Gross was
“oe as a witness on behalf of the prose-
en testified, among other things,
Seas Sot met the defendant, Hancock, in
SP hee mt 1 live with him, and that she
‘tine married woman, having a hus-
1 named Keen living. After the wit-
hanes ee testified to various occurrences pri-
re $a crime, the defendant's coun-
xe yee se urn, Esq., objected to the wit-
; ying against the defendant; al-
leging that the witness was the wife of the
oroigt tay and therefore incompetent to tes-
sae Ag him, and asked leave to examine
: ascertain whether or not she was
competent. Such leave being granted b tl
court, the said witness, on her pice
. olm.diye, in answer to questions by de.
a ee eee ae counsel, testified:
the ining" of the tral court, ay ama wif | defendant at the ine the alleged eine
act, the I 8 matte g indi : fed:
2 emsiasiee oar thi ‘point. detendant’s wite Shak ae ‘had. steed pa ite Sp etn
2. Wir — : os ot
we Courerency—Common-LAw pa got for Boag Recent
re, in a i i i pong
van iy dentin eng ap | hati most cn a he det
Cmankar of defendant had lived with hin oe — at various times the Siu rae} 3
o him, and was during all th been married | 80@ was considered as, the defend it's wife,
of another Besar g all the time the wife | but that Se prceenkk sane
agai fe i i te | swe Hie wih te defend, on
Tea ithe Ree while living with him, she did ar oe
Se og nal gr ay int, see vol. 50, | the name of Hancock, but by the name o
her husband, Keen, to whom she testnea
she was married in 1892 in Salt tebe. pi
Utah; that at Perris, California, where abe
and Hancock resided for some time and
where Hancock's mother, brother, and sis-

: x :
366.7: eelth: tor -dppettem’ Semen’ sige pes the witness passed by the name of
* S. aneock, but that everybod ;

f 3 y there

Sweeney, Att:
, y. Gen., for th
he State. pone she was not Hancock’s wife; that in
whi die vain ilford, Utah, when she wa nee
conttea na mN i Maca dies 86" was | the time of the alleged crime Soe tints,
pee aia ei p and for | and where she had fri #
rpigles : riends who knew h
aehnr here e of murder in | as Mrs. Keen, sl ¥ a
y , She went
ab eae pat Se ee judgment | Keen; and that in bate ee aul a
po R eee ote Fi urt pronounced up- the defendant were tie, ; : roe <th
eald ice to this court from the | defendant passed her off te ey
tAsek te ne < further, that she ne grees ci ey
; es , tha never sé ‘ P
© tae consid Bis eon ge te of errors | true to the defendant. sev ee ko =
ditkaionts dhe , eating the two | she could not tell hi ping
Sai ade ell him she would be true to
sil Gcdeag hae tee y defendant, | him when she had a livi
by him to the ill of exceptions presented | she passed 1 “if te dete ple
hae ore passed as Hancock’s wife in vario
gitear nich Goa g e trial court for | ces simpl i oreo
detsieahené r nply to avoid the sham f
tunttioni 20 as performing the | know hi sige hep
sin eectar tonne ox nas his mistress; and further, th
ducittone atid Maoh of errors, two | never agreed or aye
3 gery g promised to marry Han x
settled "by said Ju exceptions as | or to be his wi % gay
tg Rea oe 3 e his fe, and that she nev
cote at te tab oe st, did the trial | pected to be hi i ace
sg: e s wife, because sh r
of the witness eC rEg tema oH Bs tea 1 Keen,
apt hse ovate } ever divorced from her hust c
baid conet-ece t § and, second, did | Th nk the che
igs e ereupon the court f
the witness p Seer re the testimony of | ness Mrs. Kate W. Sates ween the ce
4 second qnedtion | of the defendant, and no ; “re i
‘$ ; : $ ;
wash, bathe ecsieer sta = of the | testify against him, and tain pring *
admits, be | fendant’s objection to her testifying rane

delay in presenting claim

urged by appellant 7 an Peat seee a -
ing in mind the relation of the parties (as:
fendants had the exclusive right to handl
on this coast articles manufactured by a i
pellant, and were charged with the aut 2
advance its sales and trade on the eats
we see nothing in the case to work an estop-
pel. Other matters urged by appellant are
disposed of by what we have said on th
question of damages. :

Order de
Reales nying motion for new trial is re-

We :
sole ages HARRISON, Fe J.; COOP-

STATD v. HANCOCK.
(Supreme Court of Nevada. Sept. 6, 1905.)

1, CRIMINAL LAW—FINDING 0 R OURT
2 F TRIAL Cou

Ww , .
cos BAG =e ina prosecution for crime, defend-
a certain witness was incompetent

Appeal i
5 if from District Court, Lincoln Coun-

John Hancock w
as co
sth ahogle* aekcoiek nvicted of murder,

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9-6 S€PMAeN SuTCoUTT pesuey fuy p SYOOONVH

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102 -- Nevada’ ‘Historical Society Quarterly

- When the legislature met in 1973, capital punishment lesisiation was a
serious topic of discussion. After one hundred days of deliberations, 85 the
legislature passed a new law:

relating to crimes and punishments; defining the offense of capital
murder and providing a mandatory. death penalty therefor; denying
admission to bail for capital offenses; eliminating the death penalty for
other crimes; and providing other matters properly relating thereto.*®

Notes

1. Young China Shacsdiien uae: kno ch’en-pao, San Pranciicoy: 28 aeae 1921; Chinese
World (Shih-chieh jih-pao, San Francisco), 29 August 1921; Chung Sai Yat Po (Chung -hsi jih-pao,

San Francisco), 29 August 1921; Nevada State Journal, 29 August 1921, 8 February 1924; Walker . ©

Lake Bulletin, 3 September 1921; ‘*Transcript of Preliminary Examination,”’ State of Nevada v.

Gee Jon and Hughie Sing, Justice Court of Mina Township, Mineral County, Nev., 9 September .

1921,-pp.-5, 19-20, 22, 28, 30, 39, located i in criminal case fileno. 56, District Court Clerk, Mineral

_ County, Hawthorne, Nev.

2. For explanations about the origins of the tongs, consult John K. Fairbank, Edwin O. Reis-
chauer, and Albert M. Craig, East Asia: Tradition and Transformation (Boston: Houghton Mifflin
Company, 1973), pp. 467-468; Immanuel C. Y. Hsu, The Rise of Modern China (New York:
Oxford University Press, 1970), pp. 170— 171; Him Mark Lai and Philip P. Choy, Outlines: History

- of the Chinese in America (San Francisco: Chinese-American Studies Planning Group, 1973), pp.

123-125; Stanford M. Lyman, The Asian in the West, Social Science and Humanities Publication,
no. 4 (Reno and Las Vegas: Desért Research Institute, University of Nevada System, 1970), pp.
33—46; and Betty Lee Sung, Mountain of Gold: The Story er Chinese in America (New York:
The Macmillan Company, 1967), pp. 137-138.

3. Gilbert G. Weigle, ‘‘ Youth’s Love of Slave Girl Starts Death,”’ San Francisco Examiner, 28:

August 1921. This article is valuable because it describes San Francisco’s tongs as being divided
into two opposing sides, and touches-upon the generally supposed reason for the outbreak of
hostilities. Other aspects of the article describing Chinese life in California, however, tend to be
fanciful. Also consult the reminiscences of Lew Wah Get, an officer of the Suey Sing Tong, in
Victor G. Nee and Brett de Bary Nee, Longtime Californ’: A Documentary Study of an American
Chinatown (New York: Pantheon Books, 1972), pp. 80-83.

4. Young China, 28 August 1921; Chinese World, 29 August 1921; Chung Sai Yat Po, 29 August

1921; San Francisco Examirier, 29 August 1921. Tong violence had been going on in the San

Francisco Bay area throughout that week. See the Duily Palo Alto Times, 23-24 August 1921; San

Jose Mercury Herald, 23—25 August 1921; San Francisco Examiner, 23 August 1921, Chinese
World, 23—24 August 1921; and Chung Sai Yat Po, 23 August 1921.

5. San Francisco Chronicle, 28 August 1921; San Jose Mercury Herald, 28, 30 August 1921;
Sacramento Bee, 29 August 1921.

6. Young China, | September 1921.

7. Ibid., 4 September 1921, Chinese World, 5-6 September 1921.

8. ‘Transcript of Preliminary Examination,”* p. 40.

9. Ibid., pp. 15, 17, Nevada, Supreme Court, Nevada Reports 46 (1922 — 1923): 425-426;
Nevada State Journal, 29 August 1921, 8 February 1924. For a totally inaccurate account of their

Example For The Nation . a 103

arrest, see Myrtle Tate Myles, Nevada's Governors: From Territorial Days to the Present,
1861-1971 (Sparks, Nev.: Western Printing and Publishing Company, 1972), p. 25S.

10. Confidential files no. 2320 and 2321, Nevada State Prison, Carson City (hereafter referred to
as NSP-2320 and NSP-2321).

11. Nevada, Seventh Judicial District Court, County of Mineral, State of Nevada v. Gee Jon uid

. Hughie Sing, trial transcript, 28—30 November, | —3 December 1921, pp. 212—214, NSP- steed

Reno Evening Gazette, 7 February 1924.
12. NSP-2321. ae .
13. Chinese World, 29 August 1921; Nevada State Journal,.31 August 1921.
14. Nevada, Supreme Court, Nevada Reports 46 (1922-1923): 427—428.
15. Sacramento Bee, 29 August 1921; Nevada State Journal, 8 February 1924; ‘‘Transcript of

‘Preliminary Examination,’’ pp. 28, 30..

16. ‘‘Transcript of Preliminary Examinition;” p. 71; Nevada State Journal, 2 September 1921;
Walker Lake Bulletin, 3 September 1921.

17. Nevada State Journal, 2 September 1921.
18. ‘‘Transcript of Preliminary Examination,’’ pp. 1, 72.

19. Nevada, Seventh Judicial District Court, County of Mineral, State of Nevada v. Gee Jon and
Hughie Sing, trial transcript, 28—30 November, 1—3 December 1921, pp. 211-212, 225-228,

“NSP-2321.

20. Nevada State Journal, 8 February 1924..

21. ‘Transcript of Preliminary Examination,’ pp. 14—15, 17; Nevada State Journal, : 30-31
August 1921, 8 February 1924; Carson City Daily Appeal, 25 January 1924.

~ 22.- Carson City Daily Appeal, 5 Lepaaeeiel 1921; Nevada, Revised Laws Gahdctcs sec. Bs 386.p.
~ 1,832.

_ 23. Carson City Daily Appeal, 26 January’ 1922; Nevada, Nevada Statutes (1921): ch. 246. p.

387; Nevada, Legislature, Assembly, Journal of the Assembly, 30th sess. (1921): 247, 301, 314;
Nevada, Legislature, Senate, Journal of the Senate , 30th sess. (1921): 255, 257, 262, 272; Nevada
State Journal, 29 March, 8 December 1921; Arnold Kruckman, ‘‘Will Use Lethal Gas on Con-
victs,’” Pioche Record, 19 August 1921. ,

For general histories of capital punishment, see George Ryley Scott, The History of Capital

* Punishment (London: Torchstream Books, 1950) and John Laurencé, A History of Capital Punish-

ment (Port Washington, N. Y.: Kennikat Press, 1971). A dispassionate professional interpretation of
the 1921 Nevada law is Raymond Hartmann, ‘*The Use of Lethal Gas in Nevada Executions,” Sr.
Louis Law Review 8 (April 1923): 164-168.

There are two different and opposite interpretations .of Governor Boyle's motives in signing the
lethal gas execution bill: Kruckman, Pioche Record. 19 August 1921; and Hugo Adam Bedau, ed.,
The Death Penalty in America: An Anthology, rev. ed. (Garden City, N.Y.: Doubleday and
Company, Inc., 1967), p. 18. :

- Singleton, Nevada Government (Caldwell, Idaho: The Caxton Printers, Ltd., 1953), p. 167; and

Effie Mona Mack and Byrd Wall Sawyer, Here Is Nevada: A History of the State (Sparks, Nev.:
Western Printing and Publishing Company, 1965), p. 173. |

Incorrect dates are given in James G. Scrugham, ed., Nevada: A Narrative of the Conquest of a
Frontier Land, 3 vols. (Chicago and New York: The American Historical es Inc., 1935),
1:549, n. 5; and Myles, Nevada's Governors, p. 255.

Probably the most fabricated, romantic, and factually inaccurate account is George V. Bishop,
Executions : The Legal Ways of Death (Los Angéles: Sherbourne Press, Inc. . 1965), pp. 160— 163.
24... Walker Lake Bulletin, 16 June 1923, Nevada State Journal, 8 February 1924.

25. James G. Scrugham to J. W. Kime. 9 April 1924, NSP-2320. ,

26. Carson City Daily Appeal, 28 February 1922. Copeland C. Burg. “Fight on to Repeal Gas

98 Nevada Historical Society Quarterly

Gee and Hughie were the least sympathetic. Mineral County District Attorney

Jay H. White called the murder of Tom Quong Kee:

purely a clean-cut premeditated murder without any extenuating Cir- -
cumstances. The crime was one of the most atrocious and cold-blooded ~
in the- history of the state. Testimony of the trial will show. that
_applications for commutation of sentence are illogical.in view of the ~
facts of the case.*! .
In support of the district attorney were ten ‘of ‘the original twelve district court
jurors. Only two of the jurors favored commuting the sentences of Gee and
Hughie to life imprisonment.*? ;

In contrast to the Fallon newspaper, the Tonopah Daily Times used the race
question in a different fashion. -It called the convicted slayers ‘‘Chinese

coolies,’’ and termed the long legal appeal process ‘‘the stubborn fight waged by -

‘the tongs for the lives of their murderous tools.’ "The editor of the Times insisted
that: :
the state should serve notice on the high court of San Francisco’ S
Chinatown that its behests will not be obeyed i in at least one state on the
Pacific coast. Let.these murderers survive through commutation or
pardon—the action would establish Nevada as the ‘slaughterhouse of
the torigs.>4
The race issue thus was used to plead for justice in one case, and to incite. the
‘yellow peril’’ prejudices of white Nevadans. on the other.

The racial consideration was kept alive when the board of pardons met in the

governor’s office in Carson City on January 25, 1924. Arguments for and -

against commutation of the death sentences of Gee and Hughie lasted for four
hours, and the room was filled with curious reporters and spectators. James
Frame, representing the Chinese, pleaded for clemency on the grounds of
Hughie’s youth at the time the murder was committed, and Gee’s illiteracy.
Moreover, he gave the race issue still another twist. Mercy should be extended
to the condemned pair, he argued, because of their lack of mental ability, the
inferiority of their race, and the inherent inability of Chinese to distinguish
between right and wrong.”? _

After all the various arguments were considered, the members of the board

voted on the fates of the two convicted killers. In the case of Hughie Sing,.

Justices John A. Sanders and Benjamin W. Coleman voted in favor of commut-
ing the sentence, as did Attorney General M. A. Diskin and Governor James G.
Scrugham. Chief Justice Edward A. Ducker cast the lone dissenting vote. In
Gee’s case, however, all the members of the board except Justice Sanders voted
against commutation. Hughie’s youth and role as an accomplice were duly

Example For The Nation ; . 99

considered by the board, as was the fact that Gee did the actual shooting in the
crime; and the reason why Justice Sanders voted for commutation of both

sentences had to do with his general opposition to capital punishment.°®
‘Reactions to the board’s decisions were immediate. Carson City’s Chinatown .-
. rejoiced in the board’s commutation of Hughie Sing’s sentence. Firecrackers

were lit, and banquets were the order of the day. At the state prison, Hughie was
removed from his death watch cell, and put to work in the prison laundry.°” Gee
Jon was left to face death alone.

At the prison, Warden Denver S. Dickerson requested a medical examination

of Gee to dispel any doubts about his sanity. Dr. John E. Pickard of Reno and
Dr. Anthony Huffaker of Carson City, the prison physician, performed the.

examination and declared Gee sane.>® The conclusions of the doctors, however,
did not discourage Frame.

Failing to get action from the state supreme court, the attorney then appealed
to the Ormsby County district court for an injunction to stay Gee’s execution. He

asserted that Warden Dickerson had not called for a full investigation and
‘hearing into Gee’s sanity as provided for by state law. Judge G. A. Ballard
promptly denied Frame’s petition for a writ-of injunction.®° Frame persevered.

On February 7, one day before the ‘scheduled date of Gee Jon’s execution, he

- went into the U.S. District Court in Carson City with an application for a writ of

habeas corpus on the grounds that Gee was being denied due process of law on
account of being insane, and that Warden Dickerson did not have the legal
authority to pass judgment on Gee’s sanity. Judge Edward S. Farrington denied
the application, since Gee’s case arose in a state court, and federal jurisdiction
didnot apply. After Farrington’s decision, Frame appealed to Governor
Scrugham in desperation. The governor, however, did not wish to give any
further consideration to the matter of commuting Gee’s sentence.®! Frame had
exhausted all legal possibilities. By the evening of February 7, he conceded
defeat. Gee Jon was to be executed the following morning.

To make sure that HCN gas was effective for more than exterminating the San

' Jose scale (a parasite) from orange trees (the use to which the gas was most

widely put in southern California), Nevada officials conducted several expert-
ments before the day of Gee Jon’s execution. They found that HCN gas

100 — Nevada Historical Society Quarterly

effectively killed bedbugs.® Cats were also vulnerable. On the day before —

Gee’s execution, one or two cats were gassed. According to the Chinese account
published in San Francisco’s Chung Sai. Yat Po, ‘‘i-chih lang-tang chih pai-se
ta-mao’’ (‘‘a stray, white, large cat’”.) was administered the gas to test its effect;

and according to Reno’s Nevada State Journal, two kittens were gassed in ©

~ rehearsal for the Gee execution.*4 © st a .
The fateful day, February 8, 1924, finally came. The weather was cloudy,
humid,:and a cold 49°F in Carson City. Gee Jon arose that morning, and after
fasting for ten days, decided to eat his last meal: ham, eggs, toast, and coffee. At
9:35 A.M., two guards escorted him the distance of forty. yards from his cell to
the gas chamber. He was strapped in the execution chair, and started to weep. At
9:40, four pounds of hydrocyanic ‘acid were introduced into the chamber. *®*
-. Hydrocyanic acid becomes volatile at 75°F. But on the day of the execution,
_ the temperature outside of. the chamber was 49°F, and inside the chamber, a
maximum temperature of only 52°F could be attained due to a malfunctioning
electric heater.. Thus HCN was present in the chamber as both gas in the air anda
~ pool of potentially volatile liquid on the floor.®®
Nevertheless, after five seconds of exposure to the gas, Gee appeared uncon-
scious; his eyes remained open, and his head continued to move for six minutes.
The condemned man ceased to move after 9:46. At ten o’clock, the chamber’s
ventilator gate was opened, and a suction fan was turned on. The chamber door
- was not opened until twelve o’clock noon.®? oO —

After the chamber was properly ventilated, Gee’s body was carried out by the.

prison guard captain and a member of the state police force. It was placed in the
prison hospital and examined by physicians with stethoscopes. Gee Jon was
pronounced dead at 12:25 P.M. by the prison physician, Dr. Anthony Huffaker;
Dr. Joseph B. Hardy of Reno; and Dr. Edward E. Hamer, Ormsby County
physician.®* One of the physicians, however, refused to believe that Gee was
permanently dead!

Major Delos A. Turner, M.D., of the U.S. Veterans’ Bureau in Reno, wanted
to inject Gee’s corpse with camphor. The injection supposedly would bring Gee
back to life. Turner asked that he be allowed to conduct his experiment ‘‘in the
interests of science.’’ Warden Dickerson wisely refused permission.*? Turner
remained a skeptic. He recommended that all future bodies removed from the
gas chamber be shot or hung to make sure of death being inflicted.7°

Gee Jon met his fate. He was the first man executed by lethal gas in the state of
Nevada and in the United States.’ Yet even after widespread press coverage of
Gee’s execution, public opinion was still divided over the questions of whether
lethal gas was a cruel and unusual punishment, and whether all forms of capital
punishment were actually deterrents to the commission of crimes. In California,
an editorial in the Sun Jose Mercury Herald commented:

One hundred years from now Nevada will be referred to as a heathen

Example For The Nation | , 101.

commonwealth controlled by savages with only the outward symbols
of civilization.”°

_ In Nevada, state prison ‘Warden Dickerson believed that shooting was a more

humane method of execution than lethal gas because death would be inflicted
quicker on a condemned person. Others, like Major Delos Turner, disagreed
with him.74 : oe

There was sufficient dissatisfaction with the state’ s 1921 lethal gas execution

law for @ movement to be started in the legislature to repeal it. Attempts were

launched during the 1925 session, but the legislators ‘refused to repeal the law
despite pleas from both Governor Scrugham and Warden Dickerson.7° In 1926,
the state executed its second convicted slayer through the use of lethal gas:
Stanko Jukich, a Serbian from Ely. Few cries of protest were heard.7¢

In the years between 1924 and 1961, thirty-one individuals were executed by
lethal gas at the Nevada State Prison.”7 Other states and the federal government
followed Nevada’s example by adopting the use of lethal gas as the means of
executing persons convicted of first degree murder. As late as 1970, the
following states also had laws authorizing the use of lethal gas in the implemen-
tation of the death penalty: Arizona, California, Colorado, Maryland, Missis-

sippi, Missouri, North Carolina, and Wyoming.78

By the early years of the 1970s, however, there were many Americans who
sought to eliminate or redefine the death penalty.7® As late as January of 1972,

‘eight criminals were under death sentences in Nevada, but none had been
_ executed since 1961. At that time, the U.S. Supreme Court started to consider

arguments against the death penalty in the case of Furman v. Georgia .®°
The high Court reached a decision later in the year. By a five to four vote, the

- Court ruled that capital punishment as it had been imposed in the United States

was in violation of the Eighth and Fourteenth Amendments to the Constitution.
Each of the nine Supreme Court justices wrote separate opinions. Capital
punishment had not been uniformly applied for specific crimes, the Court
maintained. Judges and juries had been allowed too much discretion in the
application of the death penalty. Selective application of the penalty was
deemed humane, but nevertheless unconstitutional. The effect of the Court’s
decision was to invalidate Nevada’s capital punishment law and similar statutes
in thirty-eight other. states and the District of Columbia.®!

However, the Court’s decision did not specifically rule out the possibility of
again imposing the death penalty through the passage of new laws at the state
level which would eliminate the elements of prejudice and chance.8? Chief
Justice Warren E. Burger offered the following opinion:

The future of capital punishment in this country has been left in an
uncertain limbo. Rather than providing a final and unambiguous an-
swer on the basic constitutional question, the collective impact of the
majority's ruling is to demand ‘an undetermined measure of change
from the various State legislatures and the Congress.*#

Initial reaction to the Supreme Court ruling in Nevada was one of surprise.
Attorney General Robert List called the action ‘‘an insult to Nevada, to its law
and to its people.*"*4

Lae Sh eee ae eS SS

104. Nevada Historical Society Quarterly

Death, Law,”’ San Francisco Call and Post, 9 February 1924; Nevada State Journal, 9 February

- 1924; Scrugham ta Kime, 9 April 1924, NSP-2320; Nevada, Legislature, Assembly, Journal of the

Assembly, 30th sess. (1921); 247; Nevada, Nevada Statutes (1921): ch. 246, p. 387.
27. -Las Vegas Age, 19 March 1921; Pioche Record, 25 March 1921; Nevada State Journal, 29

March 1921; Carson City Daily Appeal, 6 January 1923; Reno Evening Gazette, 18 January 1924. ©

28. Nevada, Legislature, Assembly, Journal of the Assembly, 30th sess. (1921): 247, 301, 314;
Nevada, Legislature, Senate, Journal of the Senate, 30th sess. (1921): 255, 257, 262, 272.

29. Nevada, Nevada Statutes (1921): ch. 246, p. 387.

30. Carson City Daily Appeal, 29 March 1921.

31. - Ibid., 26 January 1922; Nevada, Revised Laws 2 (1912): sec. 7,286, p. 2,041.
32. Carson City Daily merce 27 —_ 1922.
33. Ibid.

' 34. Ibid., 27 February 1922.

35. Nevada, Supreme Court, Nevada Reports 46 (1922-1923): -419- 420, 422- 424, 435- 438;
Nevada, Supreme Court, Clerk, Biennial Report, 1923-1924, p. 11.

36. Nevada State Journal, 6 July 1923.

. 37. Ibid., 28 July 1923; Carson City Daily Appeal, 9, 27 July 1923; Nevada, Attorney General,
Biennial Report, 1923-1924, p. 196.

38. Carson City Daily Appeal, 27 July, 14, 20—21, 31 August 1923; Nevada State Journal, 21

_ August 1923; Nevada, Supreme Court, Clerk, Biennial Report, 1923-1924, p. 12.

39. Carson City Daily Appeal, 5, 29 September 1923; William Kennett to James M. Frame and
Fiore Raffetto, 11.September 1923, case file no. 2,547, Nevada Supreme Court ai Carson City
(hereafter referred to as NSC-2547).

40. Carson City Daily Appeal, 11 September 1923.
‘William Kennett to Jay H. White, 27 December 1923, NSC-2547.
42. Gardnerville Record-Courtier, 11 January 1924.

43. Christen Jensen, The Pardoning Power in the American States (Chicago: University of
Chicago Press, 1922), p. 71.

44. Reno Evening Gazette, 22 January 1924; Gardnerville Record-Courier, 25 January 1924.
45. Carson City Daily Appeal, 16 January 1924.

46. Reno Evening Gazette, 22 January 1924.

47.- Ibid. ©

48. Walker Lake Bulletin, 12 January 1924.

49. Reno Evening Gazette, 11 January 1924.

50. Ibid., 22 January 1924; Carson City Daily Appeal, 24 January 1924; Nevada State Journal,
25 January 1924.

51. Nevada State Journal, 24 January 1924.

52. Reno Evening Gaz ette,-23 January 1924.

53. Fallon Standard, 16 January 1924.

54. Tonopah Daily Times, 26 January 1924.

55. Carson City ‘Daily Appeal, 25 January 1924.

56. Ibid., 26 January 1924; Nevada State Journal, 27 January 1924; Young China, 28 January

1924. In addition to Hughie Sing’s sentence, the state board of pardons and parole commissioners
acted on those of three other Chinese during the 1923— 1924 period. Paroles were granted to Lee »

Sing, convicted of first degree burglary, Yee Toy, convicted of first degree murder; and Chin Gim,
convicted of narcotics possession. Nevada, Governor, Message of Gov. James G. Scrugham to the
Legislature of 1925, 32d sess., pp. 37-38.
57. Reno Evening Gazette. 2g January 1924.

After commutation of his senténce, Hughie Sing was incarcerated at the Nevada State Prison until

- Example For The Nation ~° 105

_he was paroled in 1938. As an inmate, his general conduct was described as ‘‘very good.’’ Between

1930 and 1938 he made fifteen applications for parole. All of them were denied except for the last
one. Governor Richard Kirman and other members of the board of parole commissioners finally
approved of Hughie’ S petition.

In his applications, Hughie indicated his desire to go to China with his aged mother, where they

~ + would live the remainder of their days. By 1938, however, China and Japan were at war, and even

the exertions of Senator Patrick A. McCarran’s secretary in Washington could not convince the

. Department of State to issue Hughie‘a passport. He had to be content with staying in the United

States, but a special condition of his parole was that he leave Nevada and never return.

Following his release, Hughie traveled to San Francisco’s Chinatown, where he stayed at the
Gum Mon Hotel (Chin-men lu-kuan) on Grant Avenue. Then, he went southwards to join his family -
in Los Angeles. By 1940 he was working as a waiter in a Chinese cafe in a Angeles. NSP-2321.

58. Carson City Daily Appeal, 4—5 February 1924.

- 59. Ibid., 5 February 1924; Young China, 6 February 1924..

60. Reno Evening Gazette, 6—7 February 1924; Young China, 7 February 1924.
61. Nevada State Journal, 8 February 1924.

63. Las Vegas Age, 2 February 1924.
64. Chung Sai Yat Po, 8 February 1924; Nevada State Jotvndt: 8 February 1924.

65. Delos A. Turner to Chief of Chemical Warfare Service, U.S. War Department, February
1924, NSP-2320; Young China, 9 February 1924; Nevada State Journal , 9 February 1924; San Jose.
Mercury Herald, 9 February 1924; New York Times, 9 February 1924.

66. Nevada, State Prison, Warden, Biennial Report, 1923-1924, p. 4.
67. Turner to Chief of Chemical Warfare Service, February 1924, NSP-2320.

68. Reno Evening Gazette, 8 February 1924; San Francisc 0 Examiner, 9 February 1924; San Jose
Mercury Herald, 9 February 1924.

69. San Francisco Chronicle, 9-10 February 1924.
70. Turner to Chief of Chemical Warfare Service, February 1924, NSP-2320.

71. Reno Evening Gazette, 8 February 1924; San Francisco Chronicle, 9 February 1924;
Gardnerville Record-Courier, 15 February 1924.

72. Young China, 5 February 1924; New York Times, 8 February 1924; Literary Digest, 1 March
1924. :

73. San Jose Mercury Herald, 9 February 1924.

74. Nevada, State Prison, Warden, Biennial Report, | 923-1924, p. 4; Literary Digest, 1 March
1924. j _

75. San Francisco Call and Post, 9 February 1924; L-C. Owen, **Lethal Gas Law Holds in

- Nevada.”* New York Evening World, 9 April 1925.

76. Carson City Daily Appeal, 21 May 1926; Lillard, Desert Challenge, pp. 39-40. The account
in Scrugham, Nevada: A Narrative of the Conquest of a Frontier Land, 1:549, n. 5, incorrectly

‘states that the Jukich execution was the first in which lethal gas was used.

77. Bob Smith, ** Young Slayer Smiles, Winks at Execution,” Nevada State Journal, 24 August

1961. :

78. Luman H. Long, ed., World Almanac and Book of Facts, 1971 (New York: Newspaper

Enterprise Association, Inc., 1970), p. 79. :

79. Consult Bedau, Death Penalty in America. Eugene B. Block, And May God Have Mercy
~The Case AgainstC apital Punishment (San Francisco: Fearon Publishers, 1962);James Avery

‘Joyce, Capital Punishment; A World View (New York: Thomas Nelson and Sons, 1961): James A.

McCafferty, ed.. Cupital Punishment (Chicago and New York: Aldine-Atherton, Inc., 1972): and

Thorsten Sellin, ed.. Capital Punishment (New York: Harper and Row, Publishers, 1967).

is
Re

:
;s

phe E Site 5

Ney.) STATE v. JUKICH 591

(242 P.)

12. Criminal law 6=2823(2)—Instruction de-
fining murder in first degree held not to in-
dicate opinion, in view of other instructions.

Instruction on kinds of first degree mur-
der, though somewhat ambiguous, held not mis-
leading, as indicating court’s view that facts
showed premeditation and deliberation, in view
of other instruction requiring proof of such
elements beyond reasonable doubt.

13. Criminal law G==782(14)—Instruotion as to
effect of drunkenness on liability for killing
held proper.

In, prosecution for murder, instructions
that evidence of drunkenness must be received
with caution, and as to effect of drunkenness
on liability for offense and as affecting degree
thereof, veld proper.

14, Homicida => 180—Evidence of drunken-
ness should be received with caution.
As general rule, in cases of homicide evi-
dence of drunkenness should be received with
caution.

15. Criminal law @=>782(1)—If evidence Is of
_ such character that its weight may be easily
misjudged, court may properly advise that It
should be “received with great caution.”
When evidence is of such character that
its weight may be easily misjudged, it is prop-
er for court to advise that it should be received
with great caution, which does not mean that
it is not entitled to credit even if believed, but
merely that it should be weighed with care.

Appeal from District Court, White Tine
County; C. J. MeI*adden, Judge.

Stanko Jukich was convicted of murder in
the first degree, and: he appeals. Aflirmed,
with directions.

King & Schulder, of Salt Take City, and
C.F. Handwright, of Ely, for appellant.

M. A. Diskin, Atty. Gen., and I]. W. Kd-
wards, Dist. Atty., of Ely, for the State.

DUCKER, J. Appellant was convicted of
the crime of murder of the first degree, and
the penalty of death was imposed. He ap-
peals from the judgment and order denying
his motion for a new trial. The grounds
urged on this appeal for a reversal of the
judgment may he grouped under three heads,
namely, insufliciency of the evidence to sup-
port the verdict of murder of the first de-
gree; incompetency of counsel who repre-
sented appellant in the court below; and
misdirection of the jury by the court. These
will be considered in the order stated.

On the 14th day of February, 1925, at the
home of her parents in Ruth, White Pine
county, Nev., appellant shot and killed Jen-
nie Madek, a young girl between 15 and 16
years of age. The parents of the deceased
and the appellant are natives of Jugo-Slavia.
The appellant is 28 years of age, and had
lived in White Pine county for about 11 years
pefore the killing. For about 2 months im-
mediately prior thereto he had been at Gold

Hill, Nev., and returned to Ruth the day
before the homicide. He had boarded with
the parents of the deceased for about 18
months prior to his leaving Ruth for Gold
Hill. The circumstances immediately sur-
rounding the killing are as follows:

_ Appellant came to the house where the
girl lived at about 3 o’clock in the after-
noon and remained there until he killed her
4 or 5 hours later. Besides the appellant
there were four eyewitnesses to the shoot-
ing—the mother and a sister of the de-
eeased, Mrs. Madek and Katie Madek, a girl
9 years of age, and two Americans whose
names are Alfred Le Prowse and W. C.
Mosher, Le Prowse and Mosher came to the
Madek house 5 or 10 minutes before the
shooting took place. They came there to get
a drink of wine, and found the persons
named present, including an infant child of
the Madeks, They had two drinks of wine.
Appellant joined them in the last drink, and
drank about a fourth of a glass. There is
little difference in their testimony. Appel-
lant was standing about 4 feet from Jennie
when he suddenly pulled his gun and shot
her. Prior to the shooting they did not hear
appellant say anything to Jennie, but Te
Vrowse testified he had heard appellant talk-
ing to Mrs. Madek in a foreign language.
30th witnesses testified that they saw no
signs of anger on the part of the appellant

‘or the others. Mosher testified that appel-

lant appeared to be normal and that he saw
no evidence of his being badly intoxicated.
Both witnesses left the house immediately
after the shot was fired, and Mosher testified
that he heard the report of a second shot
just as they were leaving the house. Katie
Madek in her testimony gave the following
version of the circumstances of the shooting:

“T was in my father’s house the night Jennie
was shot. My mother and two Americans and
Stanko and my little brother were there.
Brother is a baby 2% years old.. My sister
was standing by two doors wiping my father’s
bucket. Stanko was sitting on a chair, and he
got up and stood by the stove. He put his
foot on the chair, and his left hand was in his
left eoat pocket. Le was talking when two
Americans came in. They asked Stanko if he
had any wine, and he said, ‘Just a glass of wa-
ter. My mother gave the two men a glass of
wine. They drank just one glass, and my
mother said, ‘I forgot Stanko,’ and gave him
a glass of wine. He drank just three drops.
He did not act like he was mad at any one
and did not use any bad language at any time.
He did not say anything to Jennie. Stanko
pulled his left hand out of his pocket and shot
her in the breast. Jennie fell down. She tried
to get up two times but couldn’t. My mother
took his arm, and he shot in the roof. Two
times he shot. My mother held his hand, and
when he shot he opened the door and ran out,
and—well, he was going to shoot me and the
gun wouldn’t shoot, and then he hit me and
skinned my nose. He came back again to see

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if Jennie was dead. When he came back to
Jennie the second time he shot at her, and the
gun wouldn’t work, and he kicked Jennie in
the head and went out.”

Mrs. Madek, the mother of the deceased,
testified substantially as follows: Appel-
lant started to board with her on the 25th
day of June, 1928, and left her boarding place
on the 26th day of December, 1924. Tie came
to the house on the afternoon of the 14th of
February, 1925, with one Mike Smilanick, at
about 8 o’clock in the afternoon. The lat-

ter remained until her husband got home.

from work. He stayed there all the time un-
til he shot Jennie. He did not quarrel with
anybody in the house and showed no sign of
being angry about anything. Just before the
shooting he was sitting on a chair and got up
and stood in front of the door. He made

one step towards Jennie and shot her. Mrs.-:

Madek jumped at him and appellant said,
“You are finished also.” She grabbed him
by the hand, and the bullet went straight
into the ceiling. Finding that she could
not do anything with him she ran out of the
house calling for help. After he fired the
second shot he was pulling at the trigger.
He held the gun in his left hand. The sec-
ond shot hit the witness on the little finger.
3efore he shot Jennie he had been talking
of his marriage. He said that a fellow in
Virginia City was his best man, and his wife
was there. Before the shooting he had been
talking to Jennie in a nice way, and she
asked him why he did not bring his wife
out. He replied that he could not until he
had a house and a job, The witness gave
appellant three drinks of wine. She stated
that he was not drunk.

After the shooting the appellant went to
the house of one Tartan, and said he had
killed that girl. He gave the gun to Tartan,
and was shortly afterwards taken into cus-
tody by a deputy sheriff. The officer asked
him what he had done, and he said he had
killed a girl. Asked why he did it, he said
she would not marry him, and he was ready
to go too. The officer put him in a car and

-took him to jail. While on the way there

the officer said he asked appellant why he
killed the girl, and he replied, “If I couldn’t
have her nobody else could,” and kept say-
ing, ‘Goodbye, Sweetheart.”

Questioned concerning his condition, the
oflicer testified that he appeared to be nor-
mal; that he would judge he had been drink-
ing a little, but was sober and normal and
did not appear to be excited. Another dep-
uty sheriff, who was present when appellant
was taken into custody and who went in the
ear with him to the jail, testified that appel-
lant did not seem to be drunk, and that he
did not smell any liquor on him. Concern-
ing statements made to him at the time by
the appellant, the following questions were
asked and answers made:

“Q. What did he say to you? A. * * *®
We went into the house and sat down, and I
says, ‘Why did you kill the girl?’ He says,
‘They promised me the girl—we had a written
agreement’—and then began rambling.

“Q. Did he say written agreement? A. Yes;
he said the parents of the girl and him signed
the agreement that he was to marry the girl
when she became a little older.

“Q. Did he exhibit any remorse over his ac-
tion? A. None.

“QQ. What did he assign for his reason for
killing her? Did he say anything about ‘Tf I
can’t have her no one else ean’? A, He men-
tioned that as we came down; I believe he said
that coming down in the car—it appears to me,
but I am not quite positive. But he mentioned
that anyway that evening.” .

The appellant was taken to jail, and lat-
er in the evening was taken by a deputy
sheriff to the office of the district attorney,
where he made a statement which was taken
down by a stenographer. The statement was
transcribed by the stenographer and the
transcript introduced in evidence. It is as
follows:

“Statement of Sam Jukich:

“Mr, Edwards: Sam, you know who I an,
of course? <A. I know who you are; I'll tell
you everything.

“Q. You don’t have to tell me anything if
you don’t want to. I am investigating this
trouble you had up at Ruth. If you want to
tell me anything you can; but anything that
you do tell me will be used against you. A.
Yes, sir; I tell you everything.

“Q. What was the girl's name? A. Jennie
Madek.

“(). Just tell me how this thing happened.
A. Well, it was a little over two years ago, and
I came to her mother, and her mother had a
little house to fix, and it wasn’t in good shape,
and they were going to fix it a little; I was
going to fix that house, and we was talking
about it, and so after a while she was going to
promise to give me her daughter. And her
daughter was in the front room and everything
was O. K. Her mother said, ‘Which one do
you want? and I said, “Che one that is the
first to get married.’

“GQ, You wanted the oldest one? A. Yes.
Her godfather was in the front room, and her
mother and her went in the front room, and-I
don’t know what they said, and she came out
and said, ‘I am going to be your wife any time
from now; as soon as I get big enough to get
married. And I got her godfather to witness
it. Something like two or three months. ago
her mother and father sent her to Washington;
just wanted to bluff me because I spent all
my money, and I was supporting her with
clothes and everything else, and as soon ag she
got a little bigger, she went to Washington, and
then I went away and as soon as [I left her
mother went after her to bring her back.

“Morris Roberts: You eame in from Gold
TUill last night. didn’t you? A. Yes; I came
back from Gold Hill last night, and I was talk-
ing to her about her promise, and she said, ‘I
don’t know. I said, “Tell me what has hap-
pened; don’t you remember when you prom-
ised to be mine?’ And I said, ‘What has hap-

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pened that you refuse me?’ And she said, ‘I
don’t know.’ ‘Then I got excited and I shoot.

“Q), Did you shoot her because she said she
didn’t know? <A. But she did know.

“Q. Was there any one there at the time?
A. Two American fellows; I don’t know their
names.

“(), Just the two American fellows and the
girl and some other children and her mother
was there? A. Yes; they were there.

“Q. How many times did you shoot her? A.
Once.

“Q. Is the girl dead?

“Morris Roberts: Yes, she is dead.

“Q. Where did this happen?

“Morris Roberts: In the Madek house in
Ruth.

“Q, You wasn’t drinking, was you? A. Yes;
we were drinking.

“Q. You were not drunk? <A. Well; I was
drinking. :

“Q. You are sober now; did you know what
you were talking about? A. Yes,, sir.

“Q. What did you do with the gun after you
shot the girl? A. After I shot her I went out-
side, and I threw it away about 20 yards from
the house.

“Q. What kind of a gun was it? A. A 25
automatic.

“Q. What you just told me, Sam, you told
of your own free will? You told it to me
without me making you tell anything, is that it?
A. I don’t understand.

“Morris Roberts: You wanted to tell the dis-
trict attorney what you told? You wanted to
tell him the truth? <A. Yes; it’s the truth; I
just tell the truth.”

The appellant was a witness in his own
behalf, and testified at length. His testimony
covers 43 pages of the record. A large part
of it is devoted to a marriage agreement
which he claims was made with him by the
girl and her parents by which he was to
have her in marriage; how in pursuance of

this agreement he bought ‘all of the girl’s’

elothes and gave her money; how he fur-
nished the material to build another room
to the Madek home in which they were to
live after marriage until they could get an-
other room; and to the breaking of the
agreement by the girl and her parents. He
testified that he had no ill will towards the
girl for breaking the engagement, and told
her that he did not care and would get an-
other girl, He asked her who would return
to him the money he had expended on her.
He also asked the girl’s mother to return
the money. He declared that he had expend-
ed all of his money for her except the money
he needed for his board. He testified that
after he left Ruth and went to Gold Hill he
became engaged, to a girl at the latter place
and married her; that he was unable to get
a marriage license; that he tried to get one
at Virginia City and at Carson City, and was
told that a license could not be obtained be-
cause the girl was under age; that he con-
sidered himself married to the girl. He told
her he was going to Ruth and that when he
got a house and a job he would send her a

242 P.— 38

STATE v. JUKICH
(242 P.)

593

rticket to come to him, and she said, “All
right.” He told her he was going to Ely to
get a marriage license,

Concerning the incidents on the night of
the shooting and the afternoon preceding, he
gave substantially the following version: Lle
was going to work in the morning and was
going to Mrs. Madek’s house to get his lunch
bucket, which he left there before he went to
Gold Hill, Mike Smilanick went with him,
lie asked Mrs. Madek for his lunch bucket,
and she said, “All right.” She asked him if
he was married; he told her that he was and
started to leave. She asked him to have a
drink, and brought in a half gallon of moon-
shine. Appellant, Smilanick, and one Lu-
chich drank all of it and paid for it. Anoth-
er half gallon of moonshine was brought in.
They drank some of it, but appellant could
not remember whether all of it was consumed
or not. His bucket was on the table and he
picked it up and was going when Mrs. Ma-
dek said: “Stay a little longer; you have
plenty of time to go.” As far as he knew he
drank no wine at the house that day. The
last event appellant could remember was the
Madek family having supper shortly after
the second gallon of moonshine was brought
out. His attention was called to the testi-
mony of the witness Le Prowse and Mosher,
and he was asked if they were in the house
that day. Ue replied, “I don’t know.” He
remembered nothing of the shooting, or of
being taken to jail, or of making any state-
ments concerning the shooting. He was sober
when he reached the house and had a gun in
his right-hand pants pocket. It was custo-
mary with him to carry a gun. On redirect
examination he testified that Mrs. Madek
ran a bootleg joint in her home, and that he
and others had bought moonshine whisky
there on other occasions. He also testified
that it was customary for people of his na-
tionality to make agreements to marry the
oldest daughter, and that such agreements
were generally considered binding.

No witnesses testified in behalf of appel-
lant concerning the circumstances of the
shooting. Smilanick, who went with appel-
lant to the house, was a witness in his be-
half, and said that he stayed there for half
and hour or so; that they had some kind
of liquor to drink which looked and tasted
like moonshine. He saw the appellant take
one drink, Neither he nor the appellant paid
for the drinks. George Jukich testified that
he had been to Mrs. Madek’s house about
two years before the trial a number of times
when appellant was present and drank moon-
shine whisky on those occasions.

Tom Zupin testified to having been at the
house three or four different times, and to
drinking wine and moonshine whisky. He
paid Mrs. Madek two bits a drink for it.

The last time he had liquor there was about
two months before the trial

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Mrs. Mike Delich, another of appellant’s
witnesses, testified that she lived next door
to Mrs. Madek; that appellant came to her
house on the 14th of February last, and
stayed somewhere near a half or three quar-
ters of an hour; that he drank a bottle of
wine while there; that he did not talk about
the Madek family and did not seem to be
angry; and that when he left there he told
ber that he was going to Mrs. Madek’s to
get his bucket, as he was going to work in
the morning. The witness also said that Jen-
nie was a well dressed girl compared to other
girls in Ruth; and that she was the best
dressed girl.

Vide Mommich, a witness for appellant,
corroborated him as to the marriage agree-
ment, and also said that he heard Jennie ask-
ing him for money to buy dresses. A withess
by the name of Joe Miller testified to state-
ments made to him by Mrs. Madek to the
effect that she had detained appellant by
talking to him when he came to the house
for the lunch bucket.

Another witness, also named Joe Miller,
testified that on the night of the 18th of
February appellant asked him for a job. He
told appellant that there was a vacant place,
and he would speak to the foreman for him.

In rebuttal for the state, Mrs, C. L. Grier
testified that she had charge of a department
in the J. C. Penny Company. She was ac-
quainted with Mrs, Madek and Jennie Madek.
They came into her department last gradua-
tion time. The latter bought a dress, and
the mother paid for it. The selling price
was $19.19,

Pete Lukich, in rebuttal, said that he was
in the Madek house on the ith of Iebruary
from 2 o'clock to about 10 minutes after 5.
He drank no whisky in that house on that
day. Ile had a glass of wine. He saw no
whisky in the house that afternoon. Mrs.
Madek was also called in rebuttal. She said
that appellant did not give her the money to
buy Jennie’s graduation dress. She bought
it for Jennie and paid $20 for it. She denied
that appellant had ever demanded $500 from
her for clothes he had bought for Jennie.
She denied that appellant ever bought her
daughter as much as 9 dresses in two years,
or 15 pairs of stockings that cost $2.50 a
pair. She also denied having signed any
written agreement that Jennie was to marry
appellant as he had stated in his testimony.
She also denied that she had brought out the
half gallon of whisky as he had claimed.
Formerly, on her cross-exiuination, she tes-
tified that she never promised Jennie to ap-
pellant, and that he never bought her any
clothes or anything of the kind. She also
testified on cross-examination that appellant
spent no money in her house on the 14th of
February, and that he had wine to drink.

Some of the ‘testimony we have set out

REPORTER (Nev.

the appellant, and has been stated in view
of another assignment of error which we will
next discuss.

[1] There is ample evidence to support the
verdict of murder in the first degree. The
killing of the girl by appellant was estab-
lished and not denied by him, He simply
said. that he did not know that he killed the
girl or what he did or said on the afternoon
or night from the time he drank a certain
quantity of liquor. Consequently the circum-
stances of the killing and his statements con-
cerning it as detailed by the witnesses for the
prosecution were in nowise contradicted. The
appellant, as the evidence shows, came to
the house armed with a deadly weapon con-
cealed upon his person, Without provocation
he used it with fatal effect upon an innocent
young girl, He attempted to kill the mother
and a younger sister. According to the tes-
timony of the latter he struck her and kicked
the prostrate form of the girl he had shot
and killed, He told the arresting oflicers that
he killed her because she would not marry
him and to keep any one else from having
her, He told the district attorney shortly
after the shooting that she had previously
promised to marry him; that her mother
had promised her to him, and he had spent
all of his money on her; and that on the
night of the killing when he reproached her
for breaking her promise and. she told him
she did not know why she refused him, he
got excited and commenced to shoot. His
statements disclosed a motive of revenge, and
from all of the circumstances the jury was.
warranted in concluding that the killing was
done with malice and deliberation.

[2] Whether appellant's testimony to the
effect that he was so intoxicated as to be
unconscious of what he was doing was true
or not was for the jury to determine, and
was resolved against him by the verdict.

Counsel for the appellant in this court did
not represent him at the trial of the case,
and they contend that his counsel in the
court below handled the case so negligently
and unskillfully as to deprive him of the
fair and impartial trial guaranteed by law
and the Constitution. In support of this con-
tention they point out that no motion for a
change of venue was made, and.insist that
the record discloses that there was no proper
examination of the jurors on their voir dire
to ascertain their qualifications and state of
mind towards the appellant; that no chal-
lenges were interposed by him to any of the
jurors finally sworn to try the case; that
the jury was obtained hurriedly and the trial
finished with unusual expedition; that no
objections were interposed to leading and
other questions by the district attorney which
elicited testimony and evidence inadmissible
and prejudicial to appellant ; that appellant’s
counsel did not question the 9 year old daugh-
ter of the Madeks to test her capacity to tes

bas no bearing on the guilt or innocence of

GEE JON, Chi

(_] Thirty-two people die
in the state's execution
device before a different
method comes into use.

By Ed Vogel
Donrey Capital Bureau

CARSON CITY — A sobbing 29-
year-old Chinese hit man named Gee
Jon was hauled out of his cell 70 years
ago this week and strapped inside the
new gas chamber in the Nevada State
Prison.

When prison guard Joe Muller told
him to “Take it like a man,” Gee
stopped his sniveling. And at 9:46 a.m.
on Feb. 24, 1924, he became the first
person in the United States executed
by lethal gas. eek

Today Gee’s body lies in an un-
marked grave on the prison grounds,
while gas chamber executions are in-
creasingly considered a barbaric way of
ridding society of its worst misfits. |

Among: the 38 states with capital

nese, gassed Newada (Mineral) February 8, 192

punishment, only Maryland exclusive-
ly uses the gas chamber. After killing
30 men and two womensin a series of ~
leaking gas chambers, Nevada in 1983
adopted the lethal injection form of ex-
ecution. ,

Yet on a.gray morning long ago,
Warden Denver Dickerson and a host
of politicians buffed with pride for com-
ing up with such a modern and hu-
mane way to put people to death.

“Ten seconds was required this °

morning at the state prison here to
separate the soul of Gee Jon from his
body,” began the story in that day’s
Carson City Daily Appeal.

Not all the 30 reporters who watched; :

from windows as the illiterate Gee died ©

inside a stone block chamber were cer- —

tain his soul escaped the toxic fumes of
4 pounds of hydrocyanic gas, typically

used to kill insects on orange trees.
The San Jose Mercury suggested Ne-
vada would be remembered 100 years
from now as a “heathen community
Please see GANGSTER/2B

Nevada gas chamber marks historic point

Nevada Historical Society
Gangster Gee Jon made history 70
years ago this week when he became
the first man to die in a gas chamber.

p66l ‘2 Auensqay ‘ABPUOW/JEUINOP-MaAay| SEBaA seVaz

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Gangster

From 1B
controlled by savages.”

Before adopting lethal gas as
its form of execution in 1921,
Nevada had given prisoners a
choice — hanging or the execu-
tion machine. The latter device
consisted of three unmanned ri-
fles, mounted in front of the
victim, which were fired by a
spring mechanism.

Harry Mighels, a 93-year-old

Carson City resident, said peo-__
ple in the sleepy capital town ~~

wondered why there was so
much fuss over how Gee was
killed.

“No matter what way it is
done, you still are dead,” Migh-
els said. “I think we need public
hangings.”

Gee was a 5-foot-5 gunman
for the Hop Sing tong, a Mafia-
style gang among the Chinese
in San Francisco. All-out war
broke out among Chinese
gangs when a member of Gee's
tong was accused of stealing a
slave girl from a rival tong.

Thus at dawn on Aug. 27,
1921, Gee was guided by fellow
tong man Hughie Sing to a cab-
in in isolated Mina owned by
Tom Quong Kee.

Carrying a candle, Quong
Kee answered the door in his
pajamas and died instantly
when Gee fired two .38-caliber
bullets into his heart. His crime
had been being a member of the
rival Bing Kung tong.

Both Gee and Hughie were
quickly apprehended. Hughie,
19, confessed to Reno police.

While capably defended by
attorney James Frame, Gee
and Hughie both were sen-
tenced to die in the gas cham-
ber. Thomas Russell of Elko
also was scheduled to die with
them for killing an Indian
woman in Elko.

In the weeks before the
planned executions, the state
Pardons Board reduced the sen-
tences of Hughie, who fired no
shots, and Russell to life im-
prisonment. Russell would be
pardoned in 1938 after gaining
a reputation as the best pitcher
on the prison baseball team.

Frame argued unsuccessfully
that Gee also should he spared,
contending the Chinese were
inferior and could not distin-
guish between right and wrong.

So after a breakfast of ham
and eggs, toast and coffee, Gee
marched 40 feet into the death
chamber and his name was
etched in the history books.

Rumors persisted that he
survived the gassing. An Army
physician, Maj. D.A. Turner,
insisted in the-newspapers that
he could revive Gee, adding
that once reborn, Gee would
have a new personality.

Concerned by Turner's re-
marks, Dickerson kept the Gee
body in the gas chambers for
three hours.

Gas executions became in-
creasingly popular. Longtime
Warden Matt R. Penrose wrote
that the gas method is “the
cheapest, most humane and
certainly the least revolting.”

In his memoirs, Penrose
wrote of how Jukich Stanko,
the second man to die of gas,
“went to his fate smiling.” Then
in 1930, a joking Robert White
asked Penrose for a gas mask
before he walked into the
chamber.

By the time of Jesse Bishop's
execution in 1979, gas cham-
bers no longer were vogue.
Prisons Director Charles Wolff
Jr. feared the old chamber in
the state prison would leak and
harm witnesses and guards. It
had cost the state about
$20,000 just to repair the
chamber for Bishop, the first
execution in 18 years.

Bragging, cigar-smoking
Bishop, 46, was executed for
killing Baltimore bridegroom
David Ballard in the El Moroc-
co Hotel in Las Vegas. Married
only three hours, Ballard, 22,
tried to help security guards af-
ter Bishop robbed the casino
cage. He received a bullet in
the back.

At 12:21 a.m. on Oct. 22,
1979, Bishop became the last
man {fo die in a Nevada gas
chamber,

Gee Jon.

(Courtesy: Nevada State Prison)

Hughie Sing

Example For The Nation:
Nevada’ s Execution of Gee Jon

by Loren B. Chan |

ON THE EVENING of August 27, 1921, Tom Quong Kee, a seventy-four year
old Chinese laundryman and nominal member of the Bing Kung Tong, was
awakened by someone knocking on the rear door of his cabin in the little mining
town of Mina, Nevada, located about 175 miles south of Reno. Clad in pajamas
and a jacket and holding a lighted candle in one hand, the old man groped his
way to the door. When he opened it,. he was confronted by two other Chinese,
one standing in front of another. The man standing in back pulled out a .38
caliber Colt revolver, and promptly fired two shots at Tom over the shoulder of
his confederate. The bullets went into and through the old laundryman’s heart.?

It was a brutal and senseless killing, but a part of the overall pattern of tong
warfare then plaguing some segments of the Chinese-American community in

California.? The violence spread to areas in the neighboring state, since most
towns in western Nevada were economically and socially tied to me cities of

a northern California.

In 1921, the Chinese sections of many northern California towns and cities
were afflicted by feuding tongs. The fighting-in San Francisco supposedly
started because a member of the Hop Sing Tong stole a Chinese slave girl

belonging to a member of the opposing Suey Sing Tong. To avenge the.

injustice suffered by one of its members at the hand of a member of an opposing
tong, the Suey Sing council, supported by an ally, the Bing Kung Tong,
declared ‘‘war’’ on the Hop Sings. The signal was given for the commencement
of ten months of tit- for-tat violence.

Loren B. Chan received his Ph.D. from the University of California, Los Angeles. He is an
assistant professor of history at San Jose State University, and the author of Sagebrush Statesman:

Tasker L. Oddie of Nevada, published in 1973 by the University. of Nevada Press.

N EVADA HISTORICAL SOCIETY QUARTERLY, ee No. 2 (Summer, 1975)

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92 oe ce ’ Nevada Historical Society Quarterly

Just a few hours after Tom Quong Kee was slain at Mina, Nevada, Chinese
opera performer Leong Quie Sang was shot twice in the head while preparing a
late evening snack in the kitchen of his.San Francisco apartment.* Wherever
there were tong members, the violence was bound to spread. By the end of
August 1921, even smaller towns like Watsonville and Marysville were af-
fected. In Fresno, Gee Sing received a bullet wound in his right ear after a tong
assailant fired three shots at him with a-.32 caliber pistol.* To the north in
Oakland, Woo Wai, a prosperous San Francisco herbalist; was stopped on a
street corner by two men in a large automobile. Two shots rang out, the first of
which struck and killed him.? There were probably other murders which went

- unnoticed and unrecorded. of ae

In Nevada, however, the killing of Tom Quong Kee was the big news. On
Sunday morning, August 28, 1921, a Chinese vegetable peddler went looking
for Tom. Peering through one of the windows of Tom’s cabin, he saw his
friend’s body sprawled on the floor. He notified the justice of the peace in Mina,
L. E. Cornelius, who in turn called the situation to the attention of deputy
sheriff W. J. Hammill.8 The deputy examined the body and scene of the crime,
and traced the footprints of two persons from the cabin to a spot where there were
automobile tire tracks arid some empty beer bottles. .

Only eight to ten days before, Hammill saw two Chinese strangers in Mina at

_ the Palace Cafe, men who were supposedly looking for work. At that time, the

deputy was warned that the pair were not unemployed and innocent, but were

tong members sent from Reno to Mina to kill the aged Tom. Because of his:

suspicions, Hammill telephoned Reno police chief John M. Kirkley to be on the
lookout for a car bearing two Chinese male suspects. The men were ap-
prehended.?®
Physically, twenty-nine year old Gee Jon and nineteen-year old Hughie Sing
did not seem intimidating. China-born Gee stood 5 feet, 5% inches, and
weighed 129 pounds. Hughie, who was born in Carson City, measured only 5
feet, 2% inches tall, and tipped the scale at a modest 105 pounds.'® Gee
emigrated from Canton, China around 1907 or 1908. Except for a brief stay of

- two to three months in Stockton’s Chinatown, he lived his entire life in the

United States within the confines of San Francisco’s Chinatown. Hence he had
difficulty in understanding and speaking English.'' Hughie Sing, on the other
|.and, attended grammar school in Carson City, and could speak, read, and write
both English and Chinese.!? He had been a member of the Hop Sing Tong for
only two months prior to being enlisted as Gee’s partner in crime.!3
After their arrest, both suspects were interrogated by the Reno police. Chief
Kirkley advised Hughie that anything he said could be used against him in
court, and that it would be best for him to tell the truth.'* Thinking that he might
be set free immediately if he cooperated with the authorities, Hughie confessed
his role in the crime and also implicated Gee.'* Both Gee and Hughie were sent
back to Mina, where they were held without bail until a preliminary hearing was
held on September 8, 1921. W. H. Chang of San Francisco, most likely a Hop
Sing Tong member, secured the services of Reno attorney James M. Frame as
defense counsel. !®

Receipt issued by Hop Sing Ton headquarters in San Francisco made out

to Gee Jon (alias Gee Gar Hue), dated May 21, 1921. It was in Gee's

possession at the time of his arrest.

(Courtesy: Nevada Supreme Court)

Nevada Historical: Society Quarterly

IN THE SEVENTF JUDICIAL DISTRICT COURT OF TRE STATE OF NEVADA
MINERAL COUNTY. ,

PHS P FPP EFF ESS
{SPATE OF NEVADA .

* Plaintiff,

VERDICT"

We, the jury, find the defendants, Gee Jon snd

Muehie Bing, euilty of murder of the first degree, and fix the :

penalty at death.

Dated Dec. 3 19°22.

mS) Sr ;
oreman,

Verdict of the jury.

* (Courtesy: Mineral County District Court)

. STATE OF MEVKDA “( .
Plaintiff C RETURK ON WARRANT OF EXECUTION
GEE Jom. : are | :
Defendant ; f

STATE OF WEVADA (

ee
COUNTY OF ORMSBY (—

I, Denver 8. Dickerson, the duly appointed, qualified
end adting ferden ‘of the Nevada State Prison, HEREBY CERTIFY that
all things commanded by the attached WARRANT OF EXECUTION were by
me executed in the manner prescribed thereinsand that on the eighth
day of February , A. D. 1924, between the hours of Nine and ten
o'clock A. M. of said day lethal gas was administered to Gee Jon,
the above named defendant, in sufficient quantities to produce death,
and that at 12:40 o'clock P.M. of said day the said Gee Jon, defendant,
was, by the examining physicians duly pronounced dead.

IN WITWESS “HEREOF I have hereunto set

\ my hand and seal this [5th day of February

A.D. Ipea,

WARDEN OF WEVADA STATE PRISON.

Warden Denver S. Dickerson’s certification of Gee Jon's

execution by lethal vas.

(Courtesy. Mineral County District Court)

Example For The Nation ee 95

On the advice of counsel, Hughie repudiated his oral confession.'? Both Gee —

and Hughie waived the right to make a statement at the September 8 hearing.

. Their counsel entered pleas of ‘‘not guilty’’ for each of them.!8

Trial was held in Hawthorne from November 28 to December 3, 1921 before
the Seventh Judicial District Court for Mineral County, Nevada. Both men
denied being members of the Hop Sing Tong, shooting Tom, Quong Kee; or
going to Mina with the intention of killing him. They claimed to be on their way

to Tonopah, where they wanted to obtain employment in a restaurant.!® Hughie °

also said that he confessed to the Reno police chief in the belief that he would be
immediately freed.?°-

The court was not convinced. According to prior testimony of witnesses and
law enforcement officials, the two accused Chinese were in Mina eight to ten

_days before the killing. At that time they looked over the town, and observed

their intended victim. Previously, Hughie had lived with Tom in Mina for two
years; such experience and his knowledge of English made him the best person
to guide Gee Jon on his murderous mission.?!

Both men were found guilty of first degree murder.?? After the new year,
Judge J. Emmett Walsh pronounced death sentences on the two killers. Accord-
ing to a law passed in 1921 by the thirtieth session of the state legislature and
signed by Governor Emmet D. Boyle, all criminals sentenced to death were to
be executed by means of lethal gas. Gee Jon and Hughie Sing were the first to be
affected by the new law.?%

Prior to 1921, criminals sentenced to death in Nevada were emean ina”

variety of ways. Before 1905, most of the condemned were put to death by
county officials; hence from 1866 to 1913, only ten men were executed at the

state prison.?* Moreover, methods of execution were variable. Up until January

1, 1912, hanging was the most common mode of execution; from 1912 to 1921,.
a condemned person could choose between a rope or a firing squad.*®

When the thirtieth session of the state legislature convened in 1921, Deputy
Attorney General Frank Kern—influenced by the ideas of Dr. Allen McLean
Hamilton, an eastern toxicologist—prevailed upon Assemblymen J. H. Hart of
Lovelock and Harry L. Bartlett of Elko to introduce a bill in the lower house that
would make lethal gas the sole method of administering the death penalty.*° Gas

_was believed to be the most humane way to end life, especially if it were to be

administered while the condemned person was under the influence of a soporific
drug. Little pain would be felt in passing from life to death.’

Hart and Bartlett introduced their Assembly Bill 230 on March 8, 1921. It was
favorably reported out of committee, and passed the lower house by a vote of
thirty to one in favor on March 15. The Senate received the bill later that same
day, and quickly approved the measure by a vote of fourteen to one.?* On March
28, Governor Emmet D. Boyle signed the bill, which stated that **The judgment
of death shall be inflicted by the administration of lethal gas. . . ..'?* Thus
Nevada became the first state in the country to permit the use of poisonous gas in
legally ending human life.*°

The new statute was to be implemented for the first time in the case of Gee Jon
and Hughie Sing. Only adroit legal maneuvering and persuasive argumentation

many of the names so selected were there
suggested, designated, and recommended by
the said Dawley. The court heard the testi-
mony of several witnesses relative to the
manner of selecting the trial jurors for the
county for the year in question, and then
made his finding, and delivered his decision
on the motion as follows: “From the testi-
mony produced here on the hearing of the
challenge, the court finds that all of the
persons whose names were put ‘on the jury
list were selected by the board of county com-
missioners; that none of them were select-
ed by Mr. Dawley as alleged in the chal-
lenge, and also find that it is not true that
selections were made from old jury lists,
although if a jury list had been used by
the commissioners for the purpose of finding
out the names, it would have been perfectly
proper. The book used was a book showing
jury service, and it was proper for the com-
missioners to consult that book. I do not
find that, although Mr. Dawley in certain
vases said that certain men would be good
jurymen; I do not find that in any such
case the commissioners failed to exercise
their own judgment in making up the list.
There has been no injury shown to the. de-
fendants. For these reasons there has been
no material departure from the forms pre-
scribed by the statute. The challenge is
disallowed.”

We have carefully reviewed the transcript
of the evidence in the record upon the mo-
tion, and think the same fully supports the
findings and conclusions of the trial court.
Mr. Dawley was the clerk of the court, as
well as the clerk of the board of county com-
missioners. He had kept a record of jury
service which covered a period of nearly 10
years. Although he could not legally select,
nor properly urge the selection of any juror,
we see ho objection to the board of county
commissioners taking advantage of informa-
tion in the possession of their clerk, so long
as they exercise their own judgment in con-
formity with the statute, and that, we think,
the evidence shows. they did in this case.
If any of the men whom Mr. Dawley said
would make good jurors were put on the
general list of 955 for the year by the com-
missioners, before or after he:had so stated,
it ig not shown that any of them were among
the 12 who tried the defendants, or were on
the panel drawn from the box and in attend-
ance on court at the time of the trial. It
cannot, we think, be said, nor was it claim-
ed, that defendants did not have the benefit
of a fair and impartial jury, nor that they
were deprived of any substantial right, or
were in any way prejudiced by the manner
in which the jury was selected. 12 Icncy.
Pl & Pr. 277. :

9 It is contended that the indictment is
defective, and that the court should have sus-
tained defendants’ objection to the same.

:
+s |
i NALS ei ods leita bat Nl
ARENT aeRO Nil, peaierer enn a ae cat:
Pes Stang ola Ck Meebo epeaRahe a ee RAEI A sg la CR Se Tae TT tee ee eae Aa Basch te a castles ariel yuo souenonasanietuint
‘ = EN Hing he RRB ye ER ha yd. at el a * 4 on Sone dita den op Uy pate! niche
6 87 PACIFIC REPORTER. (Ney.

“Defendants Johnny, an Indian (whose other

name, if any, is to the grand jury unknown)

and Joe Ibapah, an Indian (whose other

name, if any, is to the grand jury unknown)

are accused by the grand jury of the county

of Elko, state of Nevada, by this indictment

of the crime of murder, committed as follows,

to wit: That the satd defendants Johnny, an

Indian, and Joe Ibapah, an Indian, on or

about the 27th day of December, A. D.

1905, in the county of Elko, state of Ne vada,
and before the finding of this indictment,
without authority of law, feloniously, will-
fully, unlawfully and of their malice afore-
thought, killed a certain human being, here-
in designated as Fred Foreman, whose true
name is to the grand jury unknown, by strik-
ing, cutting, and stabbing the said- Fred Fore-
man with knives; whereof, and by means
of the striking, cutting, and stabbing afore-
said, the said Fred Foreman then and there
died.” Counsel for appellants claim that
the indictment is defective in this: “That
it does not in the body thereof charge the
defendants of the crime of murder or state
that murder was committed.” Also, that
“the specific acts alleged, viz., the cutting,
ete., are not alleged to have been done with
intent to kill.’ The indictment follows sub-
stantially the form suggested by our statute.
Comp. Laws, § 4200. The act charged as the
offense is, we think, clearly and distinctly
set forth in ordinary and concise language,
and in such a manner as to enable a per-
son of common understanding to know what
is intended, .and with such a degree of cer-
tainty as to enable a court to pronounce judg-
ment upon a conviction according to the right
of the case, and it is therefore suflicient.
Comp. Laws, § 4208.

3, After the state had rested its case, coun-
sel for the defendant Johnny, announced that
his client, also, rested, and on his behalf mov-
ed “that the case be given to the jury at this
time before any testimony 1s offered. on be-
half of the defendant Ibapah.” Counsel then
stated to the court as a reason for making the
motion that, “Mr. Taber, counsel for Iba-
pah, informs me that the defendant Ibapah
will take the stand in his own behalf, and I
believe Ibapah’s testimony will be prejudicial
to the defendant Johnny.” The court, after
taking time to consider the motion, denied
it, and this ruling is assigned as error.

Sections 360 to 362, inclusive, of our Crim-
inal Practice Act (Comp. Laws, §§ 4325-4327)
provide as follows:

“4295, See. 360. When two or more defend-
ants are jointly indicted for any offense, they
shall be jointly tried, unless for good cause
shown by:the prosecution or defense, the
court shall otherwise direct.

“4396. Sec. 861. When two or more persons
are included in the same indictment, the
court may at any time before the defendant
has gone into his defense, on the application

The body of the indictment reads as follows:

ne eB gle pi tna eo MY ee oe We ee era res

of the district attorney, direct any defendant

NE -
- eemnemannmenny omnia

Ney.)

to be dis
he may
4327,
sons are |
the court
partieula
evidence
order hit
ment, be!
closed, tl
defendan|
A defe:
who inten
make his
jury is
Nev, 359.
Johnny to
mined up:
would, in
trial, whi
plain viol]
heen fata
concerned
in his br
defendant
there is 1)
he is wil!
the prose:
‘upon his
opens his
charged
verdict as
any othe
counsel ¢
We thin!
not sup}:
that it is
from the 4
er the de:
tion for a
ly tried,
state had
little or n
of them, |
decide up
and in ai
charged 1:
sider, of |
as if the
with any
guilty or
It is eles
both of t)
quest for
purpose o
ant “shall
of codefei
the state’:
A simpler
result. &:
any event,
and that
sufficient +
court, to })
codefendat
avail hime
sires. Jo!

ree

" + aged ott si lin yee oy
" cote _ sal acaba
"4 ye a0" 2 ToL) ee
a clas Soy

68 4 tear amt MAE
“i sranpas Andaprcrny reac eel

ong See

<a ry ,
OE a mig RI Koni sie ae Oh ARI ap ne ATTETIISTL, Ailp RYO
‘ P 7 i

4 87 PACIFIC

defendants are jointly indicted they shall be
jointly tried. unless for good cause shown the
court shall otherwise direct, and the court may
at any time before defendant has gone into.
his defense, on the application of the district
attorney, direct any defendant to be discharged
from the indictment, ete. Two persons jointly
indicted were jointly tried.. After the state had
rested defendant rested, and moved that the
case be given to the jury at that time, before
any testimony was offered on behalf of the co-
defendant. Held, that the motion was properly
denied. for, if granted, it would have given the
defendant a separate trial, which could only
be granted on application made before the com-
mencement of the formation of the jury.

[Ed. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 1586.]

5. SAME—-HARMLESS FERROR—ERRONEOUS AD-
MISSION OF CONFESSION.

A defendant cannot be prejudiced by the
admission of his confession which he volun-
tarily acknowledges under oath is true.

[Id. Note.—Ior cases in point, see vol. 15,
Cent. Dig. Criminal Law, §§ 3138, 3139.]

6. SAME—CONFESSIONS—ADMISSIBILITY.

That one was imbued with fear, occasioned
by his arrest for crime, and a knowledge of his
euilt thereof, does not alone make his confes-
sion inadmissible.

jd. Note.—For cases in point, see vol. 14.
Cent. Dig. Criminal Law, §§ 1163, 1167-1171.]

7. SAME--ERRONEOUS ADMISSION OF EVIDENCE
—ITARMLESS Error.

Whiere, on a trial for homicide, defendant
admitted thé killing, and sought to avoid a
conviction by showing that he was drunk at
the time, the admission of evidence that de-
fendant when intoxicated was transformed into
a dangerous character was not prejudicial to
him. ‘

[d. Note-——For cases in point, see vol. 15.
Cent. Dig. Criminal Law, §§ 8088, 3137.]

8. SAME.

The error in admitting improper evidence
in a criminal case to establish a fact testified
to by other witnesses, including accused when
testifying as a witness in his own behalf, is
harmless.

[Ed. Note.—For cases in point, see vol. 19,
Cent. Dig. Criminal Law, § 3188.]

9. HomiciDE—INSTRUCTIONS—INTOXICATION.
On a trial for murder in the first degree,

instructions that drunkenness can only be con-
sidered for the purpose of determining the degree
of the crime, and for this purpose must be r
ceived with great caution; that presumptivel.
every killing is murder; that in cases of pre-
meditated murder the fact of drunkenness is
material: that the jury must discriminate be-
tween the condition of mind merely excited by
intoxicating drink, and yet capable of forming
a deliberate intent to take life, and such a
prostration of the faculties as renders a man in-
capable of forming the intent; that. the evi-
denee must eonvinee the jury that the deliberate,
premeditated design to murder was intention-
ally formed; that, in considering whether such
a design was formed, the jury must consider
the evidence of drunkenness, and, if accusca
was too much intoxicated to form such a de
liberate and premeditated purpose, he cannot
be found guilty of murder in the first degree,
ete.—correctly state the law on the defense
of drunkenness.

[Id. Note.—-For cases in point, see vol. 26,
Cent. Dig. Homicide, §§ 45, 605.]

10. CrimINAL LAW—INSTRUCTIONS—APPLICA-

BILITY TO CASE.
The refusal ‘to charge on the law. of

hein tt) Sikh aeRO OR A
rat) ore area

REPORTER. (Nev.

error, in the absence of evidence tending ta

reduce the killing to manslaughter.

11. Sawe—ReEFUSAL TO GIVE INSTRUCTIONS
EMBODIED IN Tr10SE GIVEN,

It is not error to refuse instructions em-
bodied in those given.

12. SaAwe—CrEDIBILITY OF TESTIMONY OF AC-
CUSED—INSTRUCTIONS.

Where the court charged that the jury must
consider all the evidence, an instruction that
the evidence of accused, if convincing, could be
acted on, otherwise rejected, was not erroneous,
as leading the jury to fail to give due consid-
eration to the testimony of accused.

13. INDIANS—CRIMES BY INDTANS.

Under Comp. Laws, § 4655, providing that
the laws concerning crimes and punishments
and the laws concerning proceedings in crim-
inal eases shall extend to the Indians in the
state, ete, an Indian on trial for crime is
subject to the same laws, as govern in the
case of a white man.

[Iid. Note.—Ior cases in point, see vol. 27,
Cent. Dig. Indians, § 22.] .

Appeal from District Court, Elko County.

Johnny, an Indian, and another were con-
victed of murder in the flrst degree, and they
appeal. Aflirmed ;

I. S. Gedney and B. J. L. Taber, for ap-
pellants. James G. Sweeney, Atty. Gen., and
Otto T. Williams, Dist. Atty., for the State.

NORCROSS, J. The defendants, on the
27th day of December, 1905, killed a human
being, designated in the indictment as Fred
Foreman, at Montello in the county of Iclko,
by cutting and stabbing him ‘with knives.
They were thereafter jointly indicted by the
grand jury of Elko county for the crime of
murder, jointly tried upon such indictment,
and both eonvicted of murder in the first de-
gree. Thereafter, on the 23d day of March,
1906. judgment of death was pronounced up-
on them. They appeal to this court from the
judgment, and from an order denying their
motion for a new trial.

Both upon the trial and upon. this ap--
peal, the defendants have been each repre-
sented by special counsel, and each relies up-
on one or more assignments of error based
upon exceptions in which the other did not
join. For this reason, the case must be
treated ag if there were two separate ap-
peals. Most points, however, are common to
both, and will require to be noticed but once.
The evidence in this case shows that the
man killed by the defendants was one of the
world’s unfortunates, who was. traveling,
friendiess and alone, across the state. He
had but one leg, and walked with a crutch.
Upon the night of the murder he was sleep-
ing in an inclosure made of railroad ties, in
the center of which was a fire, This in-
closure was entered by the defendants, ac-
cording to their own testimony, some time
during the night, probably about midnight.
At the trial the defendants made no attempt
to disclaim responsibility for the killing, but,
upon the contrary, admitted it in their own

manslaughter on a trial for homicide is not

| testimony. The defendant, Ibapab, who is

— .

Nev.)

a Gos
partic
der
timon:
had |}
ca gin
ed a
sumer
obser
tie he
climhe
they ;
ties.
. then a
whisk.
the m
leg.”
he dis
drunk
the m:
him to
er be
said t
man,
Thapal
Ibapal
CTOSSW
and a
to rais
breast
Johnn:
He he!
the ris
throat
Then }
him J
Johnns
“There
they lv
Johnn\
burn bh
and yi

- Thapah

overco:
father

for soi
they h:
Johnny
from ft}
did not
that he
tified t!
dered 1)
on the

recolle:
The eo
eeased

murder
for the
heen cu

been sts

in the |
broken
the clot!
The clo
Nody. |
and a }

Nev.)

a Goshute Indian, detailed with considerable
particularity the manner in which the mur-
der was accomplished. According to his tes-
timony, the defendant, Johnny, and himself
had been drinking quite frequently of jamai-
ea ginger during the day, and had also secur-
ed a pint flask of whisky, which they con-
sumed. Some time during the night they
observed the light eaused by the fire in the
tie house. They went to the inclosure and
climbed down in it, finding the man whom

‘they afterwards killed, lying down on some

ties. They first sat down upon a tie, and
then asked the man to go and get them some
whisky. Johnny gave him half a dollar, and
the man said. “I can’t go up there; I got one
leg.’ What happened next the witness said
he did not remember because he was too
drunk. Tle then testified that the man put
the money in his pocket, and Johnny asked
him to give it back. Te did not know wheth-
er he gave the money back, but Johnny
said to him. Tbapah, “Let’s go and,kill that
man. TI hold both hands and you cut throat.”
Ibapah said, “ATI right.’ Johnny then gave
Ibapah his knife, and held the man’s hands
erossways by the wrists. Ibapah then went
and got the man by his coat. The man tried
to raise up. and Tbapah put his knee on his
breast, holding his knife in his right hand.
Johnny then said, “Go ahead and cut him.”
Ie held the coat with his left hand and with
the right hand he put the knife against his
throat, and Johnny says, “Cut him hard.”
Then he killed him. After they had killed
him Johnny looked in the man’s pockets.
Johnny then cut off the man’s shoe, saying,
“There is money in shoe sometimes.” Then
they both said, “Let’s put him on top of fire.”
Johnny said, “Let’s put on lots of ties and
burn him up.” They put the body on the fire,
and put ties on it also. They then left;
Tbapah taking with him the dead man’s
overcoat, and went to the camp of Johnny’s
father. Upon arriving there Johnny asked
for something to eat, and Ibapah told that
they had killed a man. The testimony of
Johnny, who is a Shoshone Indian, varies
from that of Ibapah, in that he testified he
did not know much about what happened :
that he was too drunk to remember. He tes-
tified that’ he remembered holding the mur-
dered man’s hands, and helping to place him
on the fire, but further than that he had no
recollection of the occurrence whatever.
The condition in which the body of the de-
censed was found the morning following the
murder is described by one of the witnesses
for the state as follows: “The throat had
been cut from ear to ear. The left eye had
been stabbed out. There was a deep wound
jn the left cheek. he right arm had been
broken so that the bone protruded through
the clothing. ‘There were bruises on the body.
The clothing had been almost torn off the
liody. Blood stains were visible all around,
nnd a pool of blood was in the south corner

STATE v. JOHNNY. 5

of the little tie house in which the body lay.
The body had been thrown on a coal fire,
and was burning at the time. The imprint
of a bloody hand, clearly defined, was visible
on the ties lying just west of the tie house.
Several ties had been thrown into this tie
house near the fire, and one or two ties onto
the fire. I saw two knives; one lying on
the pile of ties where the imprint of the hand
was outside, and the other in the tie house
between the man’s leg and a tie. The man’s
shoe was near his foot. It had been cut
from the top to the sole. There were bloody
stains on and in the shoe. The pockets of
the cont and trousers had been turned inside
out. Part of the clothing was burned, and
the pockets had been torn away and thrown
into the fire and on the ground in the tie
house.”

It would seem from the record that there
was some manifestation upon the part of
each of the defendants to seek to gain some
advantage at the expense of the other, al-
though both relied upon drunkenness in
mitigation of the offense. According to their
testimony, they had consumed. during the day
several bottles of jamaica ginger, which con-
tained, according to the testimony, about 70
per cent. of alcohol; and a pint flask of
whisky. Charles, Brown, a witness on be-
half of the defendants, testified that he saw
them at Montello the afternoon and evening
preceding . the murder. He saw them first
about 2 o’clock, when they seemed to be under
the influence of liquor, drunk enough ‘to be
boisterous. He saw them again between
4 and 5 o’eclock, coming in front of a saloon,
and they were talking quite loud, and were
drunk. Te, in company with a man named
Richard Cromley, saw them again that night
between 11 and 12 o’clock. They were quite
drunk then, trying to help each other along.
They were talking very loud and. boisterous.

1. Upon the case being called for trial, the
defendants jointly interposed a challenge to
the panel, upon the ground that there was a
material departure from the forms prescrib-
ed by the statute in respect to the drawing
and the return of the jury. he irregular-
ity complained of is alleged to have consist-
ed in this: That at the meeting of the board
of county commissioners, for the purpose of
selecting from the qualified electors the num-
ber of trial jurors that would be required for
attendance upon the district court until the
next annual selection, one A. G. Dawley,
county clerk of the county of Elko, was
present, and did, then and there nominate,
suggest, and recomimend a large number of
electors to be selected as such jurors, to wit,
more than 20, and that the names so selected
and nominated by said Dawley were entered
upon the minutes of the board, and their
names deposited in the jury box. Also, that
a large number of the persons selected by the
board at the time were selected from old
jury lists of said county of Elko, and that

it
it
1e
re
at
1S,
th
ib-
te,
he
ily
se,
od s
hat
‘er-
alge
eht
nt.

yun-
that
nov-
this
1 be-
then
» the
Iba-
apah
ind I
dieial
after
jonied

Crim-
327)

efend-
s, they

cause
e, the

eLrsous
it, the
endant
\ieation
rendant

Ney.) | STATE v. JOHNNY. 7

°
to be discharged from the indictment, that
he may be a witness for the people.

“4327. See. 862. When two or more per-
sons are included in the same Indictment and
the court is of opinion that in regard to a
particular defendant there is not sufficient
evidence to put him on his defense, it shall
order him to be discharged from the indict-
ment, before the evidence shall be deemed
closed, that he may be a witness for his co-
defendant.”

A defendant, jointly indicted with another,
who intends to demand a separate trial, must
make his motion before the formation of the
jury is commenced. State v. McLane, 15
Nev. 359. To have permitted the defendant
Johnny to have his case submitted and deter-
mined upon the conclusion of the state’s case,
would, in effect, have given him a separate
trial, which would not only have been in
plain violation of the statute, but might have
been fatal error so far as Ibapah’s case was
concerned. Counsel for defendant Johnny
in his brief, says: “It is the privilege of a
defendant jointly tried with another, when
there is little or no evidence against him and
he is willing to be tried on the evidence of
the prosecution, to demand that the jury pass

‘upon his case before the other defendant

opens his defense; and the jury should be
charged by the court, and consider their
verdict as if the case had no connection with
any other.’ To support this contention,
counsel cites Vybee v. State, 86 Tex. 366,
We think counsel’s position is, not -only
not supported by the authority cited, but
that it is clearly not the law. We quote
from the authority cited the following: ‘Aft-
er the defendants had withdrawn their mo-
tion for a severance, and elected to be joint-
ly tried, they could at any. time after the
state had closed its evidence, if there was
little or no evidence against one or the other
of them, have demanded that the jury should
decide upon the case of such one of them;
and in all such cases the jury should be
charged by the court, and they should con-
sider of their verdict, in the same manner
as if the ease had no connection whatever
with any other, and their verdict should be
guilty or not guilty, as the case may be.”
It is clearly shown by the decision that
both of the defendants must join in the re-
quest for such a submission, and that the
purpose of it is so that the other defend-
ant “shall not be deprived of the evidence
of codefendants who are not inculpated by
the state’s evidence.” In this state we have
a simpler way of accomplishing the same
result. See Comp: Laws, § 4327, supra. In
any event, both under the Texas procedure
and that of this state, there must not he
sufficient evidence, in the judgment of the
court, to put him on his defense before his
codefendant ean, in the manner required,
avail himself of his testimony if he so de-
sires, Johnny was not in the fortunate

position that it could be said there was
little or no evidence against him, nor was
the purpose sought to be accomplished by
the submission of his case upon the close
of the state’s testimony, the use of his testi-
mony in behalf of his codefendant.

4, Confessions of the defendant Ibapah
were admitted in evidence, over the objec-
tion of his counsel that it did not appear
that such confessions were given voluntar-
ily; but, upon the contrary, were obtained
by reason of fear, inducements, and threats,
One of these confessions was made to the
oflicers upon the evening of the defendant’s
arrest, and before he was placed in jail.
The other confession was made the follow-
ing. morning, in the presence of the sheriff,
to representatives of the local newspapers.
The latter confession was reduced to writ-
ing, read over to the defendant, and signed
by him by affixing his mark thereto. The
first confession was made while the defend-
ant was in the custody of Guy Harbin, the
deputy sheriff,.a Mr. Brown, and a Mr.
Stanley, during the temporary absence of
the sheriff. It would appear from the evi-
dence that the defendant was told by Mr.
Stanley that the defendant Johnny had told
of the crime, and that he further said to
him: “You might as well tell the truth.”
Zeyond this there does not appear to have

been anything said to the defendant to In- ;

duce him to make a confession. Counsel
placed the defendant Ibapah upon the stand
to recite the circumstances of the confes-
sion, but he did not vary in’any particular
degree in his testimony from that recited
by the witness for the state. He did, how-
ever, say that it was Mr, Harbin who told
him that “Johnny had already told about
it.’ He then testified: “When he told me
that it scared me more. Everything that
I told then was true. JI was scared very
much that night.” All that can be made of
the defendant’s testimony is, that he was
scared when he made his confession to Har-
bin, but he iterates upon the stand that
what he told that night was the truth. The
only object in excluding testimony given
under threats. duress, or upon promise of
reward, is, that such testimony might not
be the truth. A defendant cannot be prej-
udiced by the admission of a confession
which he voluntarily acknowledges, under
oath, is the truth. ‘But the fact that he
was imbued with fear occasioned by his
arrest and a knowledge of guilt, would not
alone make his confession inadmissible, All
that has been said about the confession
made by the defendant Ibapah to deputy
sheriff’ MWarbin and the others, upon the ev-
ening of his arrest, will apply to his con-
fession made the following morning to the
newspaper men. The sheriff testified as
follows with reference to the latter confes-
sion: “When Ibapah was brought out, I

\ ‘
i
i
i

‘k from the
1 the check,
ew minutes

it was in-

i-charge of
cepting the
> kidnapper
d wide, the
t sedan, the
ne, until fi-
seen them.
received a
: in Harri-
was in the

ko, for the
morning to
“iff Charles
at a great

tired

in an
r his words

rdecke, from
deitman was
y,” continued
Fork cattle-
it there; he’s
paniards will
i lot of stock
‘noon, and he
iat matter.

1 John, who
at he was to
rercial Hotel,
and Godecke
on the west

: rode up but
ied at the ho-
ve minutes.”

WHAT PRICE PAROLE? 57

John Arrascada, came back to town, according ‘to the story
which he later told Sheriff Harper, and, after waiting for
quite a while at the Commercial, returned to the stock-yards
to see what was keeping his father. A pick-up truck, used
on the Arrascada ranch still stood where it had been on
John’s previous visit, and the coupe of the two buyers was
also there. He went back to the hotel, worried a little, but
not sufficiently so to tell anyone his troubles.

Also, about five o’clock that same evening, Edward God-
ecke, Walter’s brother, who had come from Gardnerville
with the cattle buyers, and who had also grown impatient
while awaiting their return to the Commercial Hotel, walked
down to the corrals to investigate; he too saw the cars stand-
ing near the tracks. Believing the men must therefore
be somewhere near, he came on back to
town.

But when ten

o'clock at night
had arrived and there was
still no sign of his brother, Edward
Godecke became distinctly alarmed. He went once
more to the corrals and found the two cars still there, and
this did not seem reasonable, at all.

Likewise, throughout the early evening, John Arrascada
had searched through Elko for his father and the cattle buy-
ers. None of the men were given to drinking and that made
the search rather easy; the boy got back to the Commercial
Hotel about the same time that Edward Godecke did: the

two were introduced by the night clerk, and after a short:

discussion decided to go to the sheriff’s office, since the
search would now probably have to be conducted outside
the city. :
“Undersheriff Sam Gudici has turned this town’ upside
down,” said Sheriff Harper to the G-Man, “and he can’t

find hide nor hair of those three men. If I didn’t know
Heitman and Godecke were honest men, I’d think they
shipped Old Manuel’s cattle and then done away with him;
but that’s just plain silly, Bailey, just plain silly.”
However, despite the sheriff's protestations that nothing
had been done on the case of the three missing men during
the night, the day was to be an eventful one in Elko County,
for before noon the federal agents had found the trail
of the tall, blue-eyed driver of the kid-
napping car after his arrival in
the Nevada city .and

Walter Godecke, above, and Otto
Heitman, to whom Manuel Arras-
cada sold a lot of live stock the
day before their disappearance.

curiously that trail
led to the very vicinity from — .
which Heitman, Godecke and Arrascada,
had disappeared.

It was while mentioning the matter of the tall kidnapper
in the presence of John Arrascada, that the lad suddenly had
his memory freshened.

“Why I saw a tall, brown-haired young man, leaning over
the top rail of the corral while I was talking to my dad
yesterday afternoon,” said the boy. ‘He had on a pair of
baggy, blue trousers, a green shirt and a blue vest.”

And that was-exactly the description of
the clothing of the kidnapper as provided
by LeVon Neal!

“Was there -a freight along soon after
the, cattle were loaded?” queried Special
Agent Bailey. —

“I checked that,” said. Undersheriff
Gudici. “The train which took the cattle
out left the yards a little after five
o'cl ee .

“We'll have that train searched at
Sparks,” said Bailey. “Your men may be
either tied up in a box car or dead. This
begins to look like it may be the same fel-
low who kidnapped Neal. I suspect we
had better concentrate on finding him.”

HE city of Elko got a thorough going

over that Saturday morning, but no
trace of the kidnapper was found; it-
seemed quite evident he had left the com-
munity. But while this search had been
going on in Elko, still another man hunt
had been taking place at Carlin, 22 miles
east, on the border, near Eureka County.
That search also had its roots in Elko,
however. }

About noon, on Friday, a man who gave
the name of Harry Sewgagee, had given a
check to the Elko Electrical Supply Com-
pany, in payment for a battery which he
carried from the place himself, and had
installed, almost next door, in a Chevrolet
car. Then Jack LeFevre, the proprietor of

the electrical store had become suspicious |

of the check; and, upon telephoning the
cashier of the First National of Elko,
found his suspicions correct; the check
was an out-and-out forgery. ‘No such man
as Sewgagee had ever had an account at
the bank; LeFevre contacted Constable
Charles Smith, told him of the forgery and
gave him a description of the man who
had presented the rubber check.

Inasmuch as Sewgagee had been ob-
served by the gas station attendant, driv-
ing westward, after the battery was in-
stalled, Constable Smith telephoned Night
Officer William J. Thornton, in. Carlin,
and asked him to keep an eye open for the
forger. Thornton made the rounds of the
gambling places and hotels of all classes
but failed to find anyone who looked like
the man he sought. He left a description,
however, in each place; any good officer
knows that from business men he always
gets cooperation if there is a check artist
in town.

So, during the very hours that the rela-
tives of the missing men were trying to
locate them in Elko; at the very time the
officers were searching for the kidnapper
of LeVon Neal in that same city, Night
Officer Thornton was hunting for the trail
of Harry Sewgagee in Carlin. If each of
the separate units, relatives, Elko officers
and the Carlin’ officer, had known what
the other units knew, the search for the
kidnapper and the forger would have been
concentrated on the same man, whatever
his name, Sewgagee or something else.

All this may seem a bit complicated, |

but when things happen that way, that is
the way they must be told. ;
LeVon Neal was kidnapped on Thurs-
day afternoon late, in Ogden, by an un-
known, tall, brown-haired sharpshooter.
He reached home again by way of the
freight on Friday afternoon and the G-
Men were informed by way of the Ogden
police of what had happened. The G-Men

AMERICAN DETECTIVE |

set out for Nevada after broadcasting and
ordering rebroadcast a description of the
man and-the car; Francis Young, in Elko,
heard the broadcast and notified the federal
authorities that the car was stored in the
garage where he worked. On that same
afternoon the three cattle men disappeared,
and that night a search for them was
started. And also on that same afternoon,
LeFevre discovered that he had accepted
a bum check from a man named Sewga-
gee; he contacted Constable Smith, who
knew nothing ‘of Francis Young’s dis-
covery, and the constable telephoned
Officer Thornton, who was also in the
dark relative to the connection between
the forger and the kidnapper.

Thus Night Officer Thornton was on
the lookout for Forger Sewgagee, not con-
necting him with the kidnapping and the
Elko officers, and the G-Men were search-
ing for the kidnapper, not connecting him
with the Forger Sewgagee, at the time

_ that the apprehension over the missing

cattle men became really serious.

However, Officer Thornton had not been
seated long in his chair at the police sta-
tion after his fruitless search for Sewga-
gee when he got a call which demanded ac-
tion. It came from one of the gambling
houses; a hard-looking individual, who
had inadvertently dropped a pistol on the
floor, had aroused the suspicions of a faro
dealer who was a friend of Officer Thorn-
ton.

“Better watch him, Bill,” said the friend.
“He looks bad to me. He lost all his
dough and said he was going out to get
some more. My guess is he intends to get
it with that gun.”

FFICER THORNTON hastened to

the gambling house ; his friend was
standing in the window ; he pointed toward
the store of Max Sperlich, next door.
Thornton entered the place and saw a tall,
thin young man at the whiskey counter ;
he walked up behind him, sap in hand.

“Stand still, young fellow,” he ordered,
as he started to frisk him. “T want what-
ever you have on you.”

The stranger's hand started for his coat
pocket; Thornton smacked his knuckles
sharply with the sap then brought the
loaded leather down on top of the fellow’s
head; that ended the fight.

When he got to the jail house, Officer
Thornton looked his man over carefully ;
he was much taller than the man described

‘by LeFevre to Constable Smith, he de-
cided, but even though he could not hold
the suspect as a forger, he had a charge of
resisting an officer under which he could
lock him up, and that is just what he did.

When ‘brought before Justice Nethery,
‘on the following morning, that being Sat-
urday, the prisoner said his name was H.
S. Kinchabocker, and that he had come
into, Carlin on a freight.

“T' was a little drunk, Judge,” he said,
“and I guess I did fight back when the
officer came up to me.”

“Well about 180 days in the county jail
will take some of that fight out of you,”
answered the justice. “Next case.”

“It probably will, your honor,” said Kin-
chabocker as Thornton led him back to a
cell. An hour later the officer was on his
way to Elko to deliver him to Sheriff Har-
per for incarceration in the county bas-

tile. He too arrived at the courthouse to -

find it feverish with excitement over the
kidnapping of Neal and the hunt for the
missing cattle men.

Quite naturally all the officers chatting
together in the sheriff’s quarters discussed
the happenings of the past twenty-four
hours.

“What kind of a gun did Kinchabocker
have?” asked Undersheriff Gudici, ad-
dressing Officer Thornton.

“Just a .22,” answered ‘Thornton, “but
it was plenty wicked; had a long barrel on
it; sort of a target pistol. You know he
asked me a funny question when I got him
to jail. He said: ‘Do they have a gas
chamber in this state?’”

“Unusual question, I'd say,” replied
Gudici, “and also an unusual gun.”

Then he went over and held a whispered
conversation with Special Agent Bailey
who had been busy at a telephone and had
not heard the conversation between the two
officers. %

“Didn’t you tell me the fellow who kid-
napped Neal had a 22 target pistol?”
asked the undersheriff. ;

“Yes, a long-barrelled pistol,” answered
the agent. “Small caliber, Neal said, and
I judged it was a 22.”

“Well I wouldn’t be surprised. We have
had a bit of luck,” said Undersheriff Gud-
ici. “I think we have our kidnapper right
here in jail. Thornton just brought him

in; picked him up in Carlin last night for -

resisting an officer. He had a gun like the
one described by Neal and he wanted to
‘know if Nevada had a gas chamber.”

“Maybe he heard about the Lindbergh
Act,” said Bailey. “This will probably
clean up the forgery case too. Let’s check
on him thoroughly before we talk to him
then we'll know what we are talking
about.”

By late afternoon the officers had fol-
lowed the trail of the man calling himself
Kinchabocker until it connected with that
of Sewgagee, the check artist. Young
came and looked at the prisoner and iden-
tified him as the man who had left the
kidnapping car in the Harriman Garage.

But most interesting of all the develop-
ments of the afternoon was the statement
of John Arrascada that’ the prisoner was,
he believed, the same man he had seen at
the corrals shortly before the. three cattle
men disappeared.

Patrolman Frank Carpenter, of the Ne-
vada State Police came in and wanted to
see the man in custody.

“He is the same man I saw about 1:30
on Friday afternoon, near the stock-
yards,” said Carpenter. “JT was sitting in
my car at the intersection of Victory
Highway. He came along and looked into
the cars left there by the cattle men and
then moved on down the highway.”

“Sure about the time?” asked Special
Agent Bailey. .

“Positive,” answered Carpenter. “Not
later than 1:30.”

PECIAL AGENT BAILEY had a very

distinct reason for asking that ques-
tion about the time Carpenter had seen
Kinchabocker, for James Lynch, yard
master at the Southern Pacific, had re-
ported that he saw four men leaving the
corrals about three o’clock, or shortly af-
ter John Arrascada had departed. That
fourth man, until Carpenter spoke, Bailey
believed, had been Kinchabocker.

“It w
o'clock,
loaded.
at the |

men w:
didn’t s
actions
special
and wo
“Prol
per. “FT
“I co
tures o°
behind
he was
cap.”
“And
Sheriff
sible t!
those t
already
what h

the tr:
there a
was fo
“We
bocker.
have p
nappin
from |
if ther
with 1
much
Carper
the we
were |

IN
ar
agains
the kic
the Se
“Arc
admit
long ¢
Nevad
“Yo:
ley, “‘s
give y!
“Ok
“T sna
got ou
ago; s
I have
napped
got int
The:
to Ne
the lir
had he
told of
hiker ;
the ba
west.
“We
car go
have it
$3.00 f
the ga
He !
under\
ticles
“Ec:
off at
there |
“Did
asked
“Sur

rent over the
hunt for the

icers chatting
ters discussed
- twenty-four

Kinchabocker
Gudici, ad-

hornton, “but
ong barrel on
You know he
hen I got him
, have a gas

say,” replied
gun.”

id a whispered
Agent Bailey
yhone and had
‘tween the two

llow who kid-
arget pistol?”

tol,” answered
Neal said, and

sed. We have
ersheriff Gud-
idnapper right
: brought him
last night for -
a gun like the
he wanted to
shamber.”

the Lindbergh
will probably
10. Let’s check
ve talk to him
e are talking

ficers had fol-
calling himself
ted with that
irtist. Young
oner and iden-
> had left the
‘iman Garage.
ill the develop-
; the statement
» prisoner was,
he had seen at
he three cattle

ter, of the Ne-
and wanted to

saw about 1:30
‘ar the stock-
was sitting in
on of Victory
and looked into
cattle men and
lighway.”

asked Special

arpenter, “Not

LEY had a very
king that ques-
enter had seen
; Lynch, yard
Pacific, had re-
nen leaving the
:, or shortly af-
departed. That
er spoke, Bailey
abocker.

“It was just a few minutes after three
o'clock,” said Lynch, “After the cars were
loaded. I was standing on the platform
at the loading station when I noticed four
men walking away from the corrals. I
didn’t see anything suspicious about their
actions at the time, so I did not take any
special notice. One of the men was large
and wore a leather jacket.”

“Probably Godecke,” said Sheriff Har-
per. “He was dressed: like that.”

“I could not distinctly make out the fea-
tures of the man who walked a little ways
behind the other three,” said Lynch. “But
he was tall and slim and was wearing a
cap.”

“And that fits Kinchabocker,” said
Sheriff Harper. “You suppose it is pos-
sible that he either killed or kidnapped
those three men and here we have him
already in custody but don’t even know
what has happened? Maybe that was why
he wanted to know about the gas cham-
ber.’

The phone rang; Sparks reported that
the train had been thoroughly searched
there and no sign of the three missing men
was found.

“We might as well question Kincha-
bocker, I think,” said Agent Bailey. “We
have plenty to break him down on the kid-
napping of Neal. Let’s get an admission
from him about that, and then we can see
if there is anything there to connect him
with the other mystery. I doubt very
much if that will work out, for you see
Carpenter’s story puts Kinchabocker on
the way to Carlin long before these men
were last seen.”

INCHABOCKER was brought out,

and when he heard the evidence
against him he did not even try to deny
the kidnapping of Neal or the forgery of
the Sewgagee check.

“Are you going to give me the gas if I
admit I kidnapped Neal?” he asked. “How
long does it take to get around to it in
Nevada?”

“You didn’t hurt Neal,” answered Bai-
ley, “so I don’t think anybody wants to
give you capital punishment for that.”

“Okay, I'll talk,” said Kinchabocker.
“I snatched him and I wrote the check. I
got out of Deer Lodge just about a week
ago; seems like when I get a few drinks
I have to forge a check, but I never kid-
napped anyone before. I don’t know what
got into me.”

Then he related the incidents of the trip
to Nevada, even to bringing Neal across
the line, just about as the federal agent
had heard them from the taxi-driver. He
told of driving on into Elko with a hitch-
hiker as a companion, of the trouble with
the battery and the subsequent start on
west.

“We got out about ten miles and the
car got hot,” said the prisoner. “I had to
have it towed back to town. They wanted
$3.00 for repairs but I just left the car in
the garage; it was too hot anyway.”

He laughed at his joke, referring to the
underworld expression for any stolen ar-
ticles described and sought by police.

“I caught a freight out of town and got
off at Carlin,” said the kidnapper, “and
there I was arrested.”

“Didn’t you stop at the stock-yards?”
asked Bailey.

“Sure I did,” answered Kinchabocker.

AMERICAN DETECTIVE

“T met that patrolman there about 1:30, I
think. I stopped and looked at a couple
of cars parked by the road. I waved to
that man and went on toward Carlin.”
Kinchabocker - pointed to Carpenter.

Thus did the confessed kidnapper seem-
ingly let himself out of any complicity
in whatever had happened to Heitman,
Godecke and Arrascada; he even had the
word of a state policeman for an alibi.

And: still there was no word of the
missing trio!

“What's your real name, Kincha-
bocker?” asked Agent Bailey. “We might
want to check that Montana record of
yours.”
~ “I was there under Carl Peters,” an-
swered the prisoner, “but my real name is
Luther Jones.”

Luther Jones still sat in the office while
the officers talked on about the mystery of
the missing cattle men; they were, of
course, talking for effect on him.

“Why don’t you go out there and look
around?” he said. “You might find some-
thing.”

“And if we do?” questioned Undersheriff
Gudici.

“Well maybe I'll have something to say
then,” said Jones, “but not now. I never
squawked on anybody yet.”

It was decided to explore the country in
all directions around Elko, and for the re-
mainder of the day posses scoured the hills
and dales, but never a sign of the cattle
men did they see; nightfall found them
back in Elko, discouraged, tired, but now
almost certain they would never again
see Heitman, Godecke or Arrascada alive.

“Let's have another try at Jones,” said
Gudici. “Maybe he will feel a little more
talkative now that we have failed.”

Again Luther. Jones was brought into
Sheriff Harper’s office, but in the room on
this occasion was one man who had not
been there previously; he was Dominigo
Arrascada, cousin of Manuel Arrascada,
the missing Basque. He had seen the af-
ternoon edition of the Elko Free-Press,
carrying a photograph of Luther Jones and
had’ come to the jail to scrutinize the man.

“That is the man I saw,” said the
Basque, between clenched teeth. ‘What
did you do to Manuel?” .

So fiercely did Dominigo Arrascada
glare at Luther Jones, that for a moment
he had no answer. ,

“I didn’t do anything to him. I didn’t
see him—” :

“You lie; you were at the corral.” Do-
minigo’s eyes were blazing; he was all
worked up. “You were there while I ar-
gued with Heitman about the age of the
calf. I looked up and I saw you. You
gave me the creeps, like you do now, if I
am not so angry.”

“T wasn’t at the corral,” said Jones turn-
ing appealingly to Gudici. “The Spick is
nuts.”

“SgOU were there,” hissed Dominigo.

“You have killed Manuel; I will get
us brothers; -I will get his cousins; we
will come back to the jail, and then you
will tell us the truth. What did you do to
Manuel ?”

“If you will take this loon away,” said
Jones turning again to Gudici, “I. may tell
you something, but not while anyone else
is in the room.” ‘

Sheriff Harper ordered the room cleared

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and shortly Luther Jones and the under-
sheriff faced each other knee to knee as
they sat alone in the office.

“IT saw this man the Spaniard is speak-
ing about,” said Jones. “I could even tell
you his name, but don’t make me do that::
I’m an ex-convict but I have my own code;
I don’t want to squeal on him. You can
find some other way to clear this up if
you will follow my directions. For I can
teil you how to locate the men!”

Gudici sat silently staring at Luther
Jones. He went on.

“There is a little cabin hidden in the
willows on the north bank of the Hum-
boldt River just about half a mile from the
corrals,” said Jones slowly and deliberate-
ly; he was choosing his words. “They
might be there. That’s enough; please don’t
ask me any questions; just go look
around.”

So once again, on the word of Luther
Jones, Undersheriff Gudici, Agent Bailey
and Jailer Tom Kendricks set out in a
quest for the missing cattle men. It was
dark now and as they threaded their way
along the northern bank of the Humboldt,
they had to step with care. Finally they
came to a hut in a small clearing.

“This is it, I think,’ said Gudici. “He
said it was a small hut.”

The door was pushed open and the rays
of the officers’ flashlights lit up the room;
there was nota single sign that anyone
had been there for months, let alone the
three missing men. °

“What’s that guy trying to do?” said
Gudici angrily. “Playing horse with us
while he helps someone get away? Figures
his own alibi is set so he is helping a pal.
I shouldn’t have fallen for it.”

HE men went back to the jail; the

undersheriff went directly to Jones’
cell; he told him he. believed he had lied
about the men.

“Jones, you are in a tougher spot than
you know about,” said Gudici. “If you
know anything about Spaniards you know
that they mean what they say. If Dominigo
Arrascada comes back here: with his tribe,
your life won’t be worth a penny. We
couldn’t protect this jail with a regiment
of men from those mad Basques. They’ll
hang you higher than hell, Jones. And I
wouldn’t even try to tell you what they
might do to you before they strung you up.
If you could really turn up Manuel Ar-
rascada, dead or alive, they would be so
rejoiced at finding him that they would
forget you until after the funeral and we
could get you down to Carson City where
you would be safe.”

Jones was very nervous; he pulled at his
scrawny throat with his lean fingers.

“I'd hate for those wolves to get me,” he
said. “Give me two hours.”

“Take your time, Jones,” said Gudici.
“But don’t hold me responsible for what
happens ; this town is full of Basques right
now. For all I know, Dominigo may be
rounding them up, and there’s a rope on
every saddle-horn.”

“Tl tell you where they are if you'll get
me away from here,” said Jones quickly
as Gudici started ,to leave. “I marched
them from the loading corrals down to
the willows. I killed them. I shot all four
of them.”

“Four!” gasped Gudici.

“Yes, four,” answered Jones. “There was

AMERICAN DETECTIVE

an old man living in the shack; I shot him
first, then the other three. Go find them
and then get me away from here before
these Spicks get me and I’ll tell you all
about it.”

In a few hurried words Luther Jones
gave the undersheriff definite instructions
as to how the men could be found; there
would be some wood stacked in front of
the door; it was one cabin farther along
the river bank than at which the officers
had stopped before.

OWN through the willows went the

same three officers again—Gudici,
Bailey and Kendricks—and finally they
paused before a 5x8 shack not over five
feet high; wood had been stacked in front
of the door.

“This must be the place, boys,” said
Gudici. “And if what that coyote tells me
is true, we are going to find four dead
men in here.”

Swiftly the little pile of wood was
thrown aside; the door was pushed open
and Gudici stepped inside.

It was now daylight—just six o’clock
on Sunday morning—but it was dark in-
side the hovel; flashlights clicked and their
rays flooded.the place.

Arms and legs of human beings stuck
out from beneath a pile of what seemed
only old clothing, in the corner of the hut!

Luther Jones had told a horrible truth!

Heitman, Godecke and Arrascada were
there, hands tied behind them and shot
neatly through the backs of the heads with
a small calibre firearm, likely the deadly
.22 target gun owned by Luther Jones.

The old man of the willows lay beneath
the pile, his arms grotesquely spread; he
had not been tied, but there was also a neat
bullet‘hole at the base of his brain; he had
been shot with the same gun, it seemed. '

Agreeing to say nothing until some se-
curity had been provided for the jail, the
three officers hurried back to town; the
Basques were gathering, indeed; they were
demanding that Manuel Arrascada be
found!

Coroner J. A. MacFarlane was dispatch-

ed. to the scene of the murders immediate-
ly; he was accompanied by Undersheriff
Gudici; then Sheriff. Harper brought Luth-
er Jones again from his cell. :

“Well, I can tell by your faces that you
found them,” said Jones as he gazed at
Bailey and Kendricks.

“They have been found, Jones,” said
Sheriff Harper. “And now I want the
truth out of you. You can begin wherever
you care to, but I want it all, and I want
it straight.”

Jones dropped into a chair and asked for
a cigarette; Bailey handed him one and
then struck a match. Jones settled back
and started to talk; only the scratch of the
pencil that was writing down the confes-
sion broke the silence, save his voice.

“I am 32 years old,” he began as though
he were relating his life history. “I was
born in Amboy, Indiana, in 1904; I am the
father of three children, but I have been in
lots of trouble.”

He related how, after being released
from the Montana penitentiary he had
come down to Ogden; he told the story of
the kidnapping again, and finally he came
down to the point where he abandoned the
car and walked out of the city; this was
about 1:00 o’clock on Friday afternoon.

He told how he hung about the corrals and
after passing State Patrolman Carpenter,
took a roundabout course and came back.
again to the stock-yards where the men
were loading the cattle.

After the cattle were loaded, the three
cattle men walked over to their cars; he
followed and covered them with his gun.

“I told them it was a stick-up,” said
Jones, “and wanted to know who had
the key to the car. They‘said they didn’t
have any car key. I shook them down for
the keys but they didn’t have none. I took

the money off them and it wasn’t a hell ’

of a lot, about $40 in. all. Then I took them
to the shack in the willows, them walking
in front of me. My intention was to tie
them up in the willows.

“When we got to the shack, there was
a fourth man there who must have lived
in it. I made all four get in the little
shack. I had the man who lived there tie
up the three I’ marched over there after
having him get some string.

“I was going to tie him up when he
started to strike back at me and I shot him
in the head. He fell on the floor and one
of the other three hollered :. ‘Help, oh my
God!’

“I then shot the three—each of them.

“I don’t remember what happened after
that. I. got some old clothes and covered
them up; none of them was making any
noise. Then I shut the door and put some
wood in front of it. Then I went out onto
the highway and a fellow came along and
gave me a ride to Carlin.

“I asked about the bus to Reno, and
found there would not be any until 10:30;
it was only 5:30 so I went and got some
beer and eats and then got a shave and
bought a pint of whiskey. I got into a
card game and lost most of my money. I
dropped my gun on the floor while I was
playing, and I guess the operator must
have called the officer.”

Jones then related the incident of his
arrest and added, apparently in extenuation
of his crime, that he had been drinking

- steadily ever since he came out of the:

Montana State Penitentiary.

Four lives for $40; the unbelievable
cold-bloodedness of the deed was almost
beyond comprehension. The hope that a
few sticks of stove wood could be made to
hide such a hideous crime; the utter futili-
ty of the whole affair; the beer-guzzling
and gorging in the Carlin restaurant with-
in two hours after he had taken the lives
of the quartet, and the one single excuse
for it all; “I had been drinking.”

T didn’t sound like the real thing to the

trained officers who listened to the con-
fession; no man could have been so brazen
else he was steeped in sin and crime.
Luther Jones was a monster; one of those
queer beings who come now and then into
an otherwise sane world, who has no re-
spect for human life.

But it was no dream, this weird story
the men had just heard; Luther Jones
signed the confession and then begged
Sheriff Harper to get him out of town be-
fore the Basques learned what he had done.

‘“T feel more like opening the door and
letting them at you,” said Sheriff Harper.
“But that would put me in your own class,
I guess. I'll protect your dirty hide; quit
whining and get back into your cell.”

It was no gentle push with which. Sher-

iff Harp:

along the

he was t:

to plead.

A day c
faced Jud
amazemen
made a “
tempered |
would ple
cuted, Lut!

He now
killings bi

Arrascada

whom he

later been
lieved the
had set ur

time, but j

be held. A:

over his vi

Judge Dys:

Luther J.
of crime bi
. lad, in Mar

convicted o

gas chambe

Carson Cit)

Ballistic e
that the gu:
Thornton is
men were
having been
harmless sh«
dent of the
harmed a fc
Elko killer <

It also b
Jones’ caree
he had com
Penitentiary
pulling a bis
big time cri
Mahan, a gr:
tion, manage:
Weyerhaeuse
their 12-year
caught, but t!
one that Lu
smart to ma!

Through .t!
tences in m:
penitentiaries
again.

From Deer
penitentiary
bright Octobe
Straight to |
added a few
received from
from the mot
Prison. But e
the purpose h:
in Pocatello, |
$24.20 in chec!
some toys, co:
rope, a butche
and an electri

OU could
or a child
bind them wit!
them with the }
hot electric irc
man’s feet o1
through.” Lut!
kidnapping.
On to Ogden
ed—a car. He,
LeVon. Neal. }

‘new car, it balk

596"

of his examination, that he “thought the ap-
pellant should be punished in some manner,”
and was not challenged by counsel. The ju-
ror had previously stated that he had no
opinion as to the guilt or innocence of the
accused. The juror had never served-in a
criminal case before, and we think his entire
examination discloses that he had neither
formed or expressed an unqualified opinion
that the accused was guilty of the offense
charged, and that he would be guided solely
by the evidence and the law as given him by
the court. The examination of the other ju-
rors finally sworn to try the case shows that
none of them had an opinion as to the guilt
or innocence of the accused. It further
shows they were not prejudiced against him
in any way, and were fair and impartial ju-
rors. Those who on their voir dire stated
that they had opinions were promptly chal-
lenged by appellant’s counsel and excused by
the court. Two were peremptorily chal-
lenged by him.

Appellant’s counsel asked two of the ju-
rors on their voir dire if they had heard or
read anything in the papers regarding the
case that would give them the opinion that
the judge of the court had expressed an
opinion as to the guilt or innocence of the
accused. When the question was asked of
the second juror the judge interposed and
prevented counsel from continuing this line
of interrogation, and stated that he had ex-
pressed no opinion. Counsel said: “This is
only asked in all fairness; 1 don’t for a mo-
ment think that your honor has expressed
an opinion.” It is claimed that counsel’s con-
duct in this respect, evoking a reprimand
from the court, had a tendency to prejudice
appellant’s case. We fail to see how it could
have had any such tendency, or how coun-
sel’s examination in this. regard can be said
to show incompetency.

[6] The argument of appellant’s counsel on
this appeal to the effect that the failure of
his counsel in the court below to object to
many questions asked by the district attorney
which it is claimed elicited testimony of a
prejudicial nature, and evidence of a similar
nature introduced in defense, indicated in-
competency, takes a very Wide range. We do
not propose to follow it and discuss in de-
tail the various questions and responses
thereto stressed by counsel. We have ex-
amined the entire record in this regard, and
do not tind anything worthy of serious con-
sideration as sustaining the claim of neglect
and incompetency. An attorney’s ability can-
not be measured by the number of objections
be makes. Attorneys of little ability are
sometimes prolific in this respect. There is
immaterial evidence in the record, but there
are few records in criminal cases that are
free from this objection. It would probably
not have been admitted in the presence of
proper objections, We cannot know counsel's

242 PACIFIC REPORTER

(Nev.

reasons for not objecting to some of the
questions complained of, but we are not pre-
pared at this distance from the atmosphere
of the trial to charge him with neglect or
incompetency for not doing so. As said in
Commonwealth v. Dascalkis, supra:

“Doubtless evidence was admitted in the ex-
amination of witnesses by the counsel for the
defendant which could not bave been introduced
against his objection. That by itself alone is
a matter of slight consequence. It is a not in-
frequent occurrence in the trial of causes, and
even happens in criminal cases, that incompe-
tent, immaterial and irrelevant evidence goes
in without objection. Various motives may in-
duce such conduct by trial counsel. : In the main
it is done for the supposed advantage of the
client to obtain evidence which directly or in-
directly may operate in his behalf. Disappoint-
ment in the substanee of the evidence thus
elicited, or misapprehension in its expected ef-
fect, is neither error in law nor incompetence
or negligence in fact. It is difficult to repro-
duce on a printed page the atmosphere of a
trial. The situation confronting an attorney
during the examination of a witness, including
information conveyed in advance from various
sources, anticipation concerning answers to be
given, and judgment as to results likely to fol-
low, is generally fraught with difficulty. Meth-
ods differ. There are divergent theories as to
the wisdom of insistent conformity to every
technical rule of evidence. Even tenable ob-
jections sometimes are not taken in the belief
that an ultimate favorable verdict is more like-
ly without them. * * * Experience, capaci-
ty, industry, alertness, faithfulness, learning,
and character make great differences in the effi-
ciency of different members of the bar in the
trial of cases. Perfection cannot be demanded
even if a standard of perfection could be form-
ulated. All cannot be held to the same degree
of excellence. Criticism after an adverse event
is easy.”

{7,8] The fact that counsel did not ques-
tion Katie Madek to ascertain whether she
was competent as a witness or not on account
of her age is charged as a dereliction of duty
on his part. We do not so consider it. The
witness was 9 years of age, but if she was
capable of receiving just impressions of the
facts concerning which she testified and of
relating them truly, she was competent under
our statute. That she was competent in
these respects seems to be indicated by the
testimony of the three adult eyewitnesses to
the tragedy, who received similar impres-
sions and related them in a similar manner,
If counsel was satisfied from his observations
of the witness that she was competent, no
duty rested upon him to object to her testi-
fying, or to undertake an examination to test
her competency. Moreover, the duty of as-
certaining the capacity of a witness of ten-
der years to testify rests primarily with the
court, and if the court in this instance was
satisfied from the age of the witness, her ap-
pearance on the stand and manner of testi-
fying, that she was competent, a special ex-
amination for this purpose was unnecessary.

Sp ean ee

2 ae ala ai ee

Nev.)

We must presume that the court was con-
vineed that the witness was competent.

[9,10] The testimony of the appellant elic-
ited by the questioning of his counsel as to
the marriage agreement, the amount of mon-
ey he had spent on the girl and her refusal
to marry him certainly cannot be said to
have helped his case, as its tendency was to
disclose a motive for the deed. But as the
state had already introduced in evidence his
statements to the oflicers to the same effect,
which were not denied by him, it is diflicult
to see how his relation of these matters to
the jury could have prejudiced his case. It
is urged that his defense of extreme drunken-
ness and lack of intent in consequence there-
of was a wrong theory ; that some other de-
fense was a proper one. But there is no
showing that appellant had any other de-
fense. Cases of murder without any real
defense are not uncommon. If appellant had
no other defense, should his counsel be
charged for the failure of the only one avail-
able to him? Certainly not. Moreover, de-
fending on a wrong theory is not evidence of
incompetency. Sayre Vv. Commonwealth, su-
pra, If appellant had any true defense it
was his duty to disclose it to his counsel,
and if the latter was unwilling to present it,
to appeal to the court to assign him counsel
who would, He cannot wait until after his
conviction and expect to have another trial
on another theory of defense by shifting the
blame for the one which failed upon his
counsel. Sayre V. Commonwealth, supra.
While counsel for appellant may not have
been as skillful in the examination of wit-
nesses and in the presentation of his defense
as some other attorney may have been, it
does not appear from a careful examination
of the entire record that his management re-
sulted in an unfair trial. There is nothing
in the record to indicate that the jury was
obtained, or the trial concluded, with undue
haste.

{11] As previously stated, it appears from
the record that no objections were taken on
the trial of the case to questions which elic-
ited evidence now claimed to have been im-
proper and prejudicial. The question of the
admissibility of such evidence is therefore
not before us on this appeal. This court
has so held in a number of cases, civil as well
as criminal. Sharon y. Minnock, 6 Nev. 377;
State v. Jones, 7 Nev. 408; State v. Murphy,
9 Nev, 394; State v. C. V. M. Co., 13 Nev.
194; State v. Lawrence, 28 Nev. 440, 82 P.
614; Karns v. State Bank & T. Co., 31 Nev.
170, 101 P. 564; State v. Williams, 31 Nev.
360, 102 P. 974; State v. Mangana, 33 Nev.
511, 112 P, 693; State v.. Clarke (Nev.) 228
P, 582.

Stress is placed upon the fact that it is
a capital case. The rule we have stated of
not considering objections to the admissibil-
ity ‘of evidence made for the first time on ap-

Lee Oe

“ STATE v. JUKICH 597
(242 P.)

peal has been uniformly adhered to in capi-
tal cases by this court. State v. Murphy,
supra; State vy. Williams, supra, State v.
Mangana, supra. It is a necessary rule of
procedure. Not only would it be unfair to the
trial court to reverse for errors not called
to its attention by a proper objection, but it
would ‘also deprive the opposite party of an
opportunity to obviate the objection. Shar-
on y. Minnock, supra. We see no reason for
a departure from the rule in this case.

[12] Objection is taken to instruction No.
5 given to the jury. The instruction reads:

“There are certain kinds of murder which
carry with them evidence of premeditation and
deliberation, ‘These the Legislature has enu-
merated in the statute, and has taken upon
itself the responsibility of saying that they
shall be deemed and held to be murder in the
first degree. These cases are of two classes:
First where the killing is perpetrated by means
of poison, or lying in wait, or torture, or any
other kind of willful, deliberate and premedi-
tated killing, and here the means used is held
to be evidence of premeditation and delibera-
tion.”

It is urged that the words, “and here the
means used is held to be evidence of premedi-
tation and deliberation,’ could have been
susceptible of but one meaning to the jurors
which was that the court was referring to
the case on trial, and meant to tell them that
the pistol used by appellant was evidence of
premeditation and deliberation. We do not
think that it was misleading in this respect.
The court was not talking about the evi-
dence in the case but was attempting to
classify certain kinds of murder of the first
degree, and the word “here” was used to re-
fer to the class stated. The classification,
however, is not clearly drawn, for two dif-
ferent classes of murder of the first degree
are really stated as one. But this ambiguity,
occurring as it does in an abstract instruc-
tion, could not have been harmful, even if
appellant’s contention of its meaning to the
jury were conceded. The means used in this
case did tend to show deliberation and pre-
meditation, but the jury was eorrectly in-
structed, in another instruction directly re-
ferring to the case, that deliberation and pre-
meditation must be proven beyond all reason-
able doubt before the defendant could be con-
victed of murder in the first degree. In re-
gard to the evidence of drunkenness the court
instructed as follows:

Instruction No. 29. ‘You are instructed that
in order to find the defendant guilty of murder
in the first degree, you must find from the evi-
dence, beyond all reasonable doubt, that the
murder was perpetrated by willful, deliberate
and premeditated killing. This ingredient of
deliberate premeditated killing must be clearly
shown and proven beyond all reasonable doubt.
It is not sufficient that you think that the kill-
ing was deliberate and premeditated, the evi-
dence must convince you of that facet to an
abiding certainty and beyond all reasonable

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tify as a witness; and that he defended the
case upon the wrong theory and drew from
the appellant and other witnesses in his be-
half testimony prejudicial to him. Upon
these alleged shortcomings counsel here make
a strong appeal for the reversal of the judg-
ment. Whether appellant would have fared
better under the guidance of other counsel
is, of course, entirely speculative, but, in
view of the evidence upon which the jury
found him guilty, it is safe to say that he
might have been convicted even if counsel
of great skill had defended him in the court
below.

[3] Ordinarily, the negligence or unskillful-
ness of counsel for a defendant in a criminal
case is no ground for a reversal. State v.
Dreher, 137 Mo. 11, 38 S. W. 567; Sayre v.
Commonwealth, 194 Ky. 338, 238 S. W. 787,
24 A. L. R. 1017; Commonwealth y. Dascal-
akis, 246 Mass. 12, 140 N. E. 470; State v.
Benge, 61 Iowa, 658, 17 N. W. 100; State v.
Pangelo, 182 Lowa, 1253, 166 N. W. 587; Hus-
don y. State, 76 Ga. 727; Darby v. State,
79 Ga. 63, 3 S. EH. 663. The contrary has
been rarely held. It was so held in State v.
Jones, 12 Mo. App. 93, but the Supreme Court
of Missouri in State v. Dreher, 137 Mo. 11,
88 §. W. 567, refused to sanction the ruling,

a dM al

. JUKICH 595

(242 P.)

“Without overriding the general rufe of law
applied by this court and others of this coun-
try, we cannot reverse the judgment and grant
appellant a new trial on the grounds of the
incompetency and unskillfulness of appellant’s
lawyer, for it cannot be said that he has not
received u fair and impartial trial.”

In State y. Bethune, 93 S. C. 195, 75 S. B.
281, the court, in deciding against the objec-
tion of counsel’s prejudicial mismanagement
of the case, said:

“he mental condition of the appellant’s for-
mer attorney is not ground for a new trial, be-
cause it has not been made to appear that it
caused prejudice to his case. It does not ap-
pear that he did or left undone anything which
would probably have affected the result.”

The Supreme Court, in State v. Dangelo,
182 Iowa, 1253, 166 N. W. 587, in denying a
new trial, urged on account of the incompe-
tency of counsel, said:

“We do not say that the rights of the ac-
cused may not be so flagrantly disregarded by
counsel of his own choosing, and, as a conse-
quence, justice so manifestly misearry, as that
a new trial should be ordered.”

In an earlier case the same court, uphold-
ing a judgment of conviction where a rever-
sal was urged on the grounds of -incompeten-

i j it the record ;
notwithstanding, as it eae ted ON F of counsel, after stating that the rule was
in the former case presented a Mos’ @ an almost invariable one in civil cases, said:

table example of ignorance and incompetency,

and that the trial eourt should have afforded

the remedy by setting aside the verdict and

appointing a competent attorney for the
prisoner.”

We had occasion to say in State v. Clarke,
298 P, 582, that a case might be presented
in which an appellate court would probably
feel that it was its duty to set aside a con-
viction for errors committed by the trial
court resulting in an unfair trial of the de-
fendant, although no objection or exception
was made or taken to the improper admission
or exclusion of evidence because of the mis-
take or misconduct, neglect or incompetency
of his counsel. We had in view, of course,
an extreme case, In such a case this court
would not feel bound by rules of procedure
to permit a palpable miscarriage of justice.
The common dictates of humanity would pre-
scribe such a course, especially where human
life is involved. It is to be noted that in
State v. Dreher, supra, which was a capital
case, the court reviewed the record, and said:

«* * * We think that the effort to obtain
a new trial on account of the: insufficiency of the
counsel who defended in the criminal court is
without any just basis.”

In Sayre v. Commonwealth, supra, also a

‘capital case, the record was reviewed, and

it was held that there was no error of such
seriousness or prejudice to the legal rights of
the defendant as to warrant a reversal, The

“In criminal eases, and especially in cases
involving the life of the defendant, the court
would probably be justified in adhering to the
rule somewhat less strictly. State v. Jones,
St. Louis Court of Appeals, May No., 1882,

Western Jurist, 322. But in any case, to jus-
tify a reversal upon this’ ground, there should
be a strong showing both of incompetency and
prejudice.” State v, Benge, 61 lowa, 658, 17
N. W. 100.

We think that the rule deducible from
these cases is that a new trial should not be
granted by an appellate court in a criminal
case on account of the incompetency or neg-
lect of counsel unless it is so great that the
defendant is prejudiced and thereby deprived
of a fair trial 16 C. J, 1145.

[4] There is nothing in the record to dis-
close such a situation. Counsel in the lower
eourt is criticized for not having made a
motion for a change of venue. The crime

ing to indicate that a fair and impartial jury
could not have been obtained, or that any
publie feeling existed in the community
against the accused, or that any hostile feel-
ing had been manifested against him at all.
So far as appears, such a motion, if made,
would have been properly denied. Counsel
was not required to make idle motions,

[5] We find nothing in the claim that the
‘examination of the jurors on the part of ap-
pellant revealed inefliciency on the part of
his counsel, True, one ofthe jurors finally

court said:

sworn to try the case said, during tbe course

was indecd a brutal one, but there is noth- -

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598 242 PACIFIC REPORTER (Or.

‘doubt. The evidence of deliberation and pre-

meditation must be such as to convince you
that the deliberate premeditated design and
purpose to murder was knowingly and inten-
tionally formed and considered in the mind of
the defendant and meditated upon before the
fatal shot was fired; and, in considering wheth-

er such a design was formed in the mind ot the-

defendant, you should consider the evidence, if
any, of drunkenness. If the defendant was
drunk at the time, and was too much intoxi-
cated to form such a deliberate and premeditat-
ed purpose, he cannot be found guilty of murder
in the first degree. It is true that drunkenness
is no excuse for the commission of an offense,
but nevertheless the jury must consider the ev-
idence of drunkenness and determine whether
it was sufficient to so cloud the mind of the
defendant as to interfere with the formation
of deliberate and premeditated purpose to kill.
If the drunkenness was sufficient to create a
reasonable doubt in your minds as to the exist-
ence of such a deliberate premeditated purpose,
you cannot find the defendant. guilty of murder
in the first degree.”

Instruction No, 30. “You are instructed that
it is a well settled rule of law that drunkenness
is no excuse for the commission of a crime.
Temporary- insanity, produced by intoxication,
does not destroy responsibility, when the party,
when sane and responsible made himself volun-
tarily intoxicated; and drunkenness forms no
defense whatever to the fact of guilt, for, when
a crime, committed by a party while in a fit of
intoxication, the law will not allow him to avail
himself of his own gross vice, and misconduct
to shelter himself from the legal consequences
of such crimes, evidence of drunkenness can
only be considered by the jury for the purpose
of determining the degree of the crime, and for
this purpose, must be received with great cau-
tion, you should discriminate between the con-
ditions of mind merely excited by intoxicating
drink yet capable of forming a specific and de-
liberate intent to take life, and such a prostra-
tion of the faculties as renders a man incapa-
ble of forming intent or of deliberation or pre-
meditation. If an intoxicated person has the
capacity to form the intent to take life, and
conceives and executes such intent, it is no
ground for reducing the degree of his crime
that he was intoxicated to conceive jt, or to
conceive it more suddenly by reason of his in-
toxication.”

[13] Exception is taken to instruction No.
30, wherein the court said that evidence of
drunkenness “must be received with great
eaution.” The two instructions together cor-
rectly state the law on this phase of the case,
In the case of State v. Johnny, 29 Nev. 203,
87 P. 8, practically the same instructions
were given and approved by this court, in
which the jury was twice told that evidence
of drunkenness should be received with great
caution. See, also, State v. Thompson, 12
Ney. 140, in which an instruction was ap-
proved which stated that:

“Wyidence of drunkenness can only be con-
sidered by the jury for the purpose of deter-
mining the degree of the crime, and for this
purpose it must be received with caution.”

[14] It is a general rule that in cases of
homicide evidence of drunkenness should be
received with caution. 29 C. J. p. 1061;
State. v. Hawkins, 23 Wash. 289, 63 P. 258;
People vy. Vincent, 95 Cal, 425, 30 P. 581;
People v. Calton, 5 Utah, 451, 16 P. 902; U.
S. v. Meagher (C. C.) 37 IF. 875.

[15] When evidence is of such character
that its weight may be easily misjudged it
is proper for the court to advise that it
should be received with great caution. State
v. Streeter, 20 Nev. 403, 22 P. 758. .This does
not mean that it is not entitled to credit
even if believed, but merely that it should be
weighed with care.

Counsel for appellant in the court below
filed an opening brief, in which he assigned
certain errors, which we have considered and
find to be without merit. Counsel who have
displaced him on this appeal concede that his
contentions are untenable.

Ags there is no prejudicial error in the rec-
ord, the judgment and order appealed from
are affirmed, and the district court is di-
rected to make the proper order for the car-
rying into effect by the warden of the state
prison the judgment rendered.

COLEMAN, C, J., and SANDERS, J., con-
cur,

CASADY v. STATE INDUSTRIAL ACC,
COMMISSION et al.

(Supreme Court of Oregon. Jan. 12, 1926.)

{. Master and servant €==387-—Rate of com-
pensation to married man judicabie according
to family status at time of injury.

Rate of compensation to married man, un-
der Or. L. § 6626, is judicable according to
family status of claimant at time of injury.

2, Master and servant @==386(1)—Only when
injury results in death should dependents re-
ceive compensation. ,

Only when injury of workman results in
death should beneficiaries or dependents receive

compensation, under Or. L. § 6619.

3. Master and servant ¢==387—Wife and chil-
dren of marriage after injury are not ‘“de-
pendents” within statute.

Though child legally adopted prior to injury
and posthumous child are rated as ‘‘dependents”
under Or. L. § 6619, neither wife to whom
claimant was married subsequent to his injury
nor children of such marriage are included with-

in section 6626.
[fd. Note.—For other definitions, see Words

and Phrases, First and Second Series, Depend-

ent. ]

Department 1.
Mandamus by George J. Casady to compel
the State Industrial Accident Commission
and the members thereof to allow compen-

€==For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes*

ECHOOL OF LAY

1060 _ Nev.

was found after death, was not accounted
for until photographs were offered in evi-
dence in murder prosecution, did not de-
stroy admissibility of photographs.

4. Criminal law 444 :

A sufficient foundation: was laid for
admission in evidence in murder prosecu-
tion of enlarged photographs of body of
deceased found in defendant’s hired auto-
mobile at time of defendant’s arrest, and of
enlargements of photographs of body of
deceased at time of post-mortem examina-
tion.

5. Criminal law €=438

In murder prosecution, enlarged photo-
graphs of body of deceased found in de-
fendant’s hired automobile at time of de-
fendant’s arrest, and enlargements of
photographs of body of deceased at time of
post-mortem examination, were not $0 grue-
some as to unduly influence, excite or
prejudice jury and therefor be inadmis-
sible in evidence.

6. Criminal law €=438 ,

In criminal prosecution, where photo-
graphs are shown to be correct representa-
tions and give a better and clearer under-
Standing of relevant facts than could be
obtained by testimony, their use in evidence
should be favored.

7. Criminal law €=444 +

Generally, photographs need not be
taken by a professional photographer to be
admissible in criminal prosecution, and any
one who knows may testify concerning
their correctness. :

8. Criminal law €=404(3)

In murder prosecution, failure of scien-
tific proof that gunshot which killed de-
ceased came from pistol found lying in
front seat of automobile hired by defend-
ant, and in which deceased was seen riding
with defendant shortly before death, and
in which body of deceased was found at
time pistol was found, did not destroy ad-
missibility in evidence of pistol and of
cartridges in pistol. -

9. Criminal law €=404(4)

In prosecution for murder, purse,
shoes and hat which were. found in street

208 PACIFIC REPORTER, 2d SERIES

near apartment building in which deceased

was living, and, which were identified as

those worn by deceased when last seen
some hours before her death, were admis-
sible where no purse, shoes or hat were
found when deceased’s body was found,
and blood stain on shoes corroborated de-
fendant’s statement that he had struck de-
ceased with pistol before forcing. her to
drive away with him in automobile in which
her body was subsequently found.

10. Criminal law €=404(4)

In murder prosecution, blood stained
‘brassiere of deceased containing a bullet
‘hole, and blood stained shirt and trousers
worn by defendant at time of his arrest,
were not so gruesome as to prevent their
admission in evidence.

11. Criminal law. €=518(1)

Confessions made by a _ defendant
‘shortly after his arrest, which were volun-
tary, were admissible against defendant in
murder prosecution, although defendant
was not informed before making them that
what he said might be used against him.

12. Criminal law €=721(1)

The statutory prohibition of a charge
to jury relative ‘to failure of defendant in
criminal prosecution to testify, except upon
request of defendant, impliedly prohibits
state’s attorney from commenting on such
failure in his argument to jury. N.C.L.
1929, § 10960.

13. Criminal law €=721(5)

In murder prosecution, statement of
district attorney in closing argument to
jury that case contained no conflicting
evidence and that no produced testimony
was denied, was not error as being a com-
ment upon defendant’s failure to testify
prohibited by statute. N.C.L.1929, § 10960.

14. Homicide @=253(1) a
Evidence sustained conviction for muf-

der in the first degree.

15. Criminal law @=409, 535(2)

The corpus delicti in a criminal prose-
cution cannot be established solely by
evidence of a confession or of an adm!s-
sion or of both, made by defendant on an
occasion other, than. while appearing as @

’

STATE y. GAMBETTA Nev. 1061
Cite as 208 P.2d 1059

witness in prosecution, or solely by evi-
dence of any number of such confessions
and admissions.

16. Criminal law €=563
Corpus delicti may be- established by
circumstantial evidence.

17. Criminal law €=535(2)

In murder prosecution, evidence, aside
from purported confession of defendant,
was sufficient to establish the corpus delicti.

Appeal from Second Judicial District
Court, Washoe County; A. J. Maestretti,
Judge.

Eugene Leo Gambetta was convicted of
murder in the first degree and he appeals

from judgment and from order denying
motion for a new trial.

Judgment and order affirmed, with direc-
tion.

C. Benson Tapscott, of Reno, for appel-
lant. :

Alan Bible, Attorney’ General, Homer
Mooney and Robert L. McDonald, Deputy
Attorneys General, Harold O. Taber, Dis-
trict Attorney, and Grant L. Bowen, As-

sistant District Attorney, Reno, for re-

spondent.

BADT, Justice.

‘Appellant Eugene Leo Gambetta was
convicted in the district court of Washoe
county for the crime of murder in the first
degree and the jury imposed the death
penalty. Gambetta has appealed from the
judgment and from the order denying his
motion for a new trial. Before considering
his seven assignments of error:a recital
of the facts is necessary. These facts
appear from three separate confessions
made by the defendant to’ three separate
officers in San Francisco immediately fol-
lowing his apprehension and also from cer-
tain additional, independent and corrobora-
tive evidence adduced at the trial.

Appellant and deceased, Thelma Ribail,
were married in January, 1945 and lived
in an apartment in San Francisco. Follow-
ing marital difficulties Thelma left appel-
lant in March, 1948, and established her

residence at the Gibson Apartments in Reno
with her sister Lola LaPoint. Defendant
made several trips from San Francisco to
Reno in efforts to contact his wife, and did
contact her on four or more occasions, forc-
ing her at the point of a gun to accompany
him in a car. On May 29,1948, approxi-
mately a month and a half before the fatal
shooting, deceased, learning of the presence
of defendant in Reno, attempted to leave her
apartment in a taxicab driven by one
Eugene Pettipiece who had been sent by
Thelma’s sister Lola for the purpose.
However, as Thelma was leaving the front
entrance of the Gibson Apartments in
Pettipiece’s taxi, appellant appeared, bran-
dished a chrome plated, shiny revolver, or-
dered Pettipiece to drove off in his cab, and
Stated, “I'll blow her guts all over the
sidewalk.” Pettipiece reported the inci-
dent to Lola, who in turn reported it to the
police. An hour later defendant was ar-
rested, and the loaded revolver was found
in his car, Defendant was fined $50 for
violation of a city ordinance in connection
with his possession of the gun and he paid
his fine and returned to San Francisco.
On June 19 he again returned to Reno,
discovered his wife coming out of a night-
club with another man, followed them to
another nightclub and subsequently drove
to her apartment house and waited there
until she and her companion arrived about
5:30 in the morning. Defendant states,
“* * * T didn’t kill him then. I don’t
know why. I was hot enough, * * *
1 went downtown and got drunk and went
back to kill them and the car was gone.”
He cached his. automatic pistol in a hedge
across the street from Thelma’s apart-
ment, drove downtown, got drunk, was ar-
rested for colliding with another car and
before being released the following morn-
ing, was served with divorce papers. On
June 23, 1948, at a meeting in the office
of his wife’s attorney, he expressed bitter-
ness toward his wife and said he should
have shot her before. When his wife’s
attorney suggested that it was lucky that
he did not do so, appellant expressed the
conviction that no jury would convict him,
He did however sigm an appearance in the
divorce action with a waiver of time, etc.,
as a result of which the deceased obtained

1962 ~=Nev. 208 PACIFIC REPORTER, 2d SERIES

her divorce and the restoration of her for- of the gun resulted in a cut one and. one
mer name Thelma Ribail. Before return- half inches long and about one third inch
ing to San Francisco defendant again deep from which blood flowed and ran into
cached the automatic in the hedge across the deceased’s eyes and upon her clothes
the street from the Gibson Apartments. and to the street. Some drops were upon
On July 8, 1948, on receiving information her ‘shoes, which were subsequently found.
that appellant had again returned to Reno, Appellant forced deceased to get into his
deceased and her sister Lola, with the as- car, drove north . to Fourth Street and
sistance of the district attorney, filed a turned east. As_ they approached Sutro
complaint with the justice of the peace and Street deceased stated that she would jump
again obtained a warrant for defendant’s out of the car and appellant said, “If you
arrest. At that time the sisters agreed that jump J’ll shoot you.” She started to jump
if appellant should “get” either of them out and he shot her. He stopped as quick-,
she would throw her purse or shoes or ly as he could, backed the car up to where
something belonging to her away so that if she. was, ascertained that she was dead,
such articles were found the other “would picked her up and put her on the back
know that Gambetta had her.” - Both sis- seat of his car, turned around and drove
ters were in.constant terror of the de- around Reno for about an hour and a half,
called again at her apartment for the pur-

“0 ly 14, 1948 defendant ted a light POSe as he stated later, of killing the de-
n July ppesantgen bien tire ceased’s sister Lola. He was unable to gain

gray Ford sedan in San Francisco and
drove to Reno, arriving about 7:00 P.M., entrance, drove south from Reno, turned
where he fitst ascertained that the pistol west on what is knows al the at. Kom
was still in the hedge fully loaded. He road and stopped in the neighborhood of
unsuccessfully tried to locate his wife that the Callahan ranch cutoff and transferred
evening and stayed at a motel in Reno. the body to the trunk compartment of the
The following day, July 15, at 3:30 or 4:00 car. He then drove to Highway 50 and to
in the afternoon he first saw deceased San Francisco by way of Placerville, Sac-
ramento and the Golden Gate Bridge and

fendant. .

driving a Lincoln sedan with a Nevada ‘ ‘
parked on the: Great Highway facing the

license No. 40-998. He followed the car
but lost her, and later found the Lincoln
sedan parked by her apartment. Later he
drove to various clubs trying to locate her
and finally saw her coming out of a club

ocean in the vicinity of the Park Commis-
sary where he was arrested about 5:00 P.M.
by two officers of the San Francisco Police
Department. These officers had received
information that,Gambetta, in a car bear-

ECHOOL OF LA

or restaurant with another girl anda man. ~ 4 sae
He drove back to her apartment and after 18 California license No. 3L1444, was

waiting for some time, drove off and again wanted for investigation of kidnap and
met deceased and her male companion leav- murder and that he was armed and dan-
ing another club. He drove back to the 8eTous. Defendant readily admitted his
apartment, waited till 4:30. A.M. drove name_and that deceased’s body was in the
downtown again, and again observed de- trunk of the car. The .32 caliber auto-
ceased and her male companion leaving an- matic pistol with six cartridges was found
other club, He again drove back to the on the front seat. During the course of
apartment and waited for them to return, the afternoon appellant frankly made three
which they did about 5:00 A.M. Appellant statements outlining most of the facts sub-
approached them with his gun in his hand, stantially as above recited. On July 20,
and ordered Thelma’s companion to leave, 1948 the district attorney of Washoe county
which he did. An argument ensued be- filed an information charging the defend-
tween appellant and deceased and he struck ant with murder. He waived his prelim-
her between the eyes with the butt of his inary examination and was arraigned on
gun—the gun being discharged in the proc- the same day,and entered a plea of not
ess but apparently doing no other injury. guilty. His trial commenced August 9
Two persons heard the shot and fixed the 1948, at which time facts as above recited
time at 4:55 A.M. The blow from the butt were submitted to the jury. The verdict,

STATE v. GAMBET
Cite as 208 P.2d im Ney.

finding him guilty of murder of | i
degree and fixing his Laohatees Sauk ie takes est ae ES eat
was recorded August 13, 1948, “ame car : In ss pei green sae
! ; ase of t
See assignment of error graphs, as in the case of all thi acids
yetame ef ars ctteh ge “i someday admitted, a witness testified
ine xhibits Nos. 5, that he had taken the picture and that i
a Eee tayarty? nose 6 and 7 were was a fair, correct and true sii Remarks
the Great Highway ia ea acne aa < i Saxe : oe Se Sha Aaa dey
in which defendant was sitting at the Na a San Frang oe age mr baer
of his arrest. Nos. 8 and 9 leave enlarged enlarged b ee: Wels ¢ sett
3 a g y him. Nos. 5, 6 and 7 j i
ee ee Sent the “SS which the state claimed Phe
: ; e enlarged was riding with appell:
ot ah Aha body at the time the former’s death at trot torte
ind em examination in San ployee about twelve hours after her
= a death. e photographs corrob
Raper cte objections to the admission of statements contained in the free ‘eatier
thee oe = were urged separately as Sions made by appellant, and also corro-
eee ere respectively offered. The borated the statement of another state’s
al objections were not based on the witness who testified to seeing a light gra
et and did not as a matter of fact sedan leave the Gibson Apartments i Rend,
“ kocton oF ths grounds now urged drive north to Fourth Street and there sents
by. ape ee ‘or.-the purpose of this Sgt The photographs were undoubtedly
sees baowcs , we are willing to assume T¢levant and material, a sufficient founda-
enced thartlers nou urged by ap- tion was laid for their admission, and the
pales 2 Tegicher embraced within the fact that their exact presence in the hands
site ae lesiate made and the ex- © @My one person was not accounted for
ee Ppt ppellant urges that ge until they were offered in evidence did not,
Bechet He 2 ice toe laid for the intro- 1” the absence of any adverse showing
satis oF these exhibits, that there i” the record, destroy their admissibility.
pone a g as to who took or en- 22 C.J.S., Criminal Law, § 712, p. 1207;
Z _ photographs, or that the photo- Hill v. State, 58 Nev. 28 68 P.2d 569;
graphs, ta their enlargement, or the State v. Lewis, 50 Nev. 212, 230, 255 P.
re testi had been continuously a 1002 ; State v. Salgado, 38 Nap: 64 76,
Pe on of any individual, that the 145 P. 919, 150 P. 764 eS
exhibits were immaterial, that the photo-
[3-5] Nos. 8 and 9 were enlarged

graphs were merely cumulative
, and that
weg hae hee hotogré 7
nap akin a eae to prejudice and i Shei oe Ap * gees ne
sir efendant’s hired Ford
lan at the ti i i
Doe oes ne sed e time of his arrest
Seca Waianae is + a Francisco. A foundation was a a
Otograph of the case of tl
as | gra] e of the other phot
rs Cane California license two photographs aimisiah soe:
: «14 as the car was parked on tl Sare
Great Highway in San Francisco, No. 6 is PE ee rahe
an enlargement of a photograph of the
rear view of the same car, also showing

1063

identify
the body, corroborated appellant’s seistee:
sions and showed that the hat and shoes
were missing from the body. Nos. 3 and 1

1 Under the provisions of an act to
provide for and to regulate bills of ex-
ceptions in criminal cases, ete., Stats
1947, p. 293, Chap. 87, a bill of wahen:
tions may consist of a transcript of the
proceedings properly certified, “together

Neither the appellant nor the state has
secn fit to have the exhibits admitted dur-
ing the trial certified to this court or to
seek an order of this court requiring the
— to be sent up. As all of the ex

; ied ibits are ful scribed i i ;
boning ogee erhibits, motions, and lillie ty in a pacers
apers, ers_requi ‘ ase ene fefa

ratte 1 equired to be incor- counsel, we deal with ee
porated in a bill of exceptions * * *” find it. prt eee

A it.

Ave OERC ES

é
3

ECHOOL OF LAW

o SERIES
208 PACIFIC REPORTER, 2d
1064 Nev.

j in hi hich would
’s bod ury in his real flesh and bone, w

ap ah FARRER : nap oat heave been permissible, if practicable. They
hee pee eens ees San had been taken the day after Welsh died,
he ci tat Hl dthe and were not especially repulsive, and there
J eapecae Tas sig ae + a8 from was testimony to their correctness. We are
aie a eek Re Ovid KER 1 was cited to some extreme cases where photo-
Oe tee ie ca id ntified graphs were ‘rejected on the grounds that
Saph bor Wee ae gee rE Both witnesses had described what they would
ee ee ety as ny of show, or that they would inflame and preju-
ie ihe ays ee gE: aie dice the jury—doctrines that we are not
Re ee a = cape. able to sanction, and which are not sup-
examination. No. 3 showed the location, RAL GE ApeOTS. -

f the wound on de- ported- by ‘ ; er
i) He aa: d b blow from juries cannot be intrusted with the per
panos fs fag 28 ann Ms pat to the nent facts for which litigants and offenders
se Pe Reine des that are responsible, however appalling they
Eset SO A kc ate The may be, and with the most accurate, in-
iat Siege 38 ah he nbiried and convincing evidence of those.
sh hae a as peer pat it ‘3 time to abolish the jury system.
es ee id * sthin in the Photography, engraving, and the arts of
cet Sasa Oe aaneerabt icture making are important factors in our
gcse eT aie eaidlization and the courts in their search

i excl - r

= AEC i: pair! Serna for truth should not be averse to accepting
er Preipane wia3 ie . the benefits they bring. A glimpse at :

[6,7] General rules as to the admis- photograph may give a more definite an
sibility of photographic evidence have been ‘ orrect idea of a building or of a person's
so well established not only by the opinions features than the most minute ee ae ed
of many courts of last resort and by the testimony. A child may learn more regar
text-writers but also by the decisions of ing the appearance of an animal it never
this ‘court that a discussion of such rules saw by the sight of its picture than by

with application to the facts of this ee listening to a lecture or reading a volume
is not warranted. State v. Roberts, of description. When photograp 2 oe
Nev. 350, 82 P. 100, 103; State ¥ oo ee age representation, ;
47 Nev. 233, 219 P. 597. In the ee : give a better and clearer understa tan
case, in answer to the claim that the photo > levant facts, it would seem on reason 7

i . . % u

graphs were gruesome eae naaeses srnartble that thet a ss ra oad
and prejudice the jury, to w ich it be favored. It is generally hel ey
appellant devotes Repeated ae sy i Gas ghey BARI AE professional phot
case, this court, speaking throug > grapher, and that. any one who ; j
J., says with reference to the photographs testify regarding their correctness.
admitted in evidence:

“Of the three admitted, one shows the
face of the deceased in the repose of death,
and in it Conductor La Point was able to

i . . . re
recognize the features of the pagers wherein people are trained to saps
picked up ate ove oF er apne aben little danger that the minds o soos
Wi wane snorming and. tahoe 870 “will be influenced merely because a )

i i i ; others . . “a: . . ced in
Madigan tS OE OF on the garment or similar exhibit is introdu
showed the entrances 0

i ibited to them.

arm and leg, and were illustrative and in- evidence and Sc aie TS eee g

ee: tion with the testimony Appellant re ies Ss ge ee
SS anh as or eat ther witnesses. If Miller, 43 Or. 325, 74 P. 658, 659, i peat
of ane eee ™ ive a more vivid of his contention that it was Fe ied
pig SHI coeds than a verbal the pay anas terres ts

ipti : han It is true that in a i
Terapia el beers LG of the photographs was held to be error be
an ex

Part of the foregoing is quoted in the
Holt case where this court, speaking
through Coleman, J., emphasizes the fact
that in this age of general education,

‘STATE v. GAMBETTA Nev. 1065
Cite as 208 P.2d 1059

cause they “presented a gruesome spectacle from this pistol did not destroy the admis-
of a disfigured and mangled corpse, very sibility of these exhibits.. Their materiality
well calculated to arouse indignation with and relevancy are apparent. See State v.
the jury.” However the testimony adduced Lewis, 50 Nev. 212, 255 P. 1002; State v.
to support the admissibility of the photo- Salgado, 38 Nev. 64, 145 P. 919, 150 P. 764.
graphs indicated also that the pictures As to the admissibility of the pistol and the
were not faithful reproductions and were shells, appellant relies on State v. Craw-
partially inaccurate. In a later case the ford, 60 Utah 6, 206 P. 717. But in that
Oregon Supreme Court cited with apparent ‘case gun and shells were held improperly
approval severe criticism of the Miller case admitted in evidence because they were
as expressed by Wigmore and other text- found over six weeks after the crime charg-
writers. State v. Weston, 155 Or. 556, 64 ed and were not connected with the de-
P.2d 536, 108 A.L.R. 1402. fendant other than by their discovery un-

der a dresser in a room occupied by the
[8] Defendant’s second assignment of pPabccke age he
ve nes defendant and another person. The de-
error urges that the admission of Exhibits : i
: ain: fendant denied ownership of the weapon.
10 and 12 over appellant’s objection was : : a hates
: Connecting facts so prominently existing in
error. No. 10 was a .32 caliber German f
Cow : the present case were almost entirely lack-
automatic pistol and No. 12 comprised the . ~ ‘ ;
: i ‘ : ing in the Crawford case. Appellant’s con-
six loaded cartridges that were in the pistol 3 : ‘
‘ tentions on this assignment must be con-
when it was recovered by the San Fran- : ¥ %
‘ ; ae .. sidered as dealing with the weight of the
cisco police. The pistol was found lying in ‘ ! Bones.
: : evidence rather than with the admissibility
the front seat of the car identified by the ;
‘ : of the gun and shells. State v. Salgado
testimony of the officers, the confession of ;
they: Apbetlatl: < aud “he” thie thvee oheaee 29808: State v. Lewis, supra; State v. Gee
Stasi 7 uf Jon, 46 Nev. 418, 211 P. 676, 217 P. 587, 30
graphs of the car. Appellant asserts that
a a : A.L.R. 1443.
the state “failed to establish the where-
abouts of the revolver and cartridges from
the time of their acquisition [by the police]
until introduced in evidence * * *,

[9] Appellant’s third specification of er-
ror concerns the admission of Exhibits 13,

that 14 and 15, being respectively the purse,
it is essentially prerequisite to the intro- shoes and hat found in the street near the

duction of exhibits of this nature in evi- Gibson Apartments in Reno. We _ have
dence that their continuous possession be heretofore mentioned the state of terror
shown. Otherwise, there can be no assur- of the deceased and her sister and the
ance that the exhibit has not been subjected agreement made by them for disposition
to tampering, distortion or other change.” of some article where it could be found
On the contrary the record shows that thé in the event of some hostile act on the part
officers identified the gun and identified the of appellant. The articles were identified
cartridges they had removed from the gun as those worn by the deceased when last
from markings made thereon. They testi- seen alive some hours before her death.
fied that these items were in the same con- The photographs of her body in the trunk
dition at the time of the trial as when re- of the car showed the absence of these
moved from the car. They were in the jtems, They. were properly identified and
Constant possession of either the San connected up and were properly admitted.
Francisco officers or the Reno officers. The blood stains on the shoes corroborated
The defendant identified the gun as the the defendant’s statement as to his strik-
one used by him to shoot the deceased. Of ing the deceased on the head with the pistol
the six cartridges removed oS aS in the and as to the blood that flowed from this
chamber and five in the a ete The wound. While their weight as evidence
Capacity of the pistol was eight cartridges. might be subject to attack, their admis-
One was accidently discharged when aP- sibility is clear.

Pellant struck the deceased on the head

With the butt of the pistol, the other was {10] Appellant’s fourth assignment as-
the fatal shot. Failure of ‘scientific proof serts error in the admission of the state’s
that the shot that killed deceased came Exhibits 4, 17 and 18, being respectively

208 P.2d—6714

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2 IFIC REPORTER, 2d SERIES
1066 = Nev. 208 PAC !

the deceased’s blood stained brassiere a and Leer igann heme i gale ness
h it, and the shirt and against him. is sta
a pitty are at the time of ever is contrary to his ree as
his arrest and which also bore blood stains. v. Mircovich, 35 Nev. >» : ieeuk nya
The brassiere was identified by the physi- 765, 766. The precise _ a
cian who performed. the autopsy as the raised. and this court said:
one removed from deceased's body. It “Tt is contended that the court erred in
indicated the point of the exit of the bul- admitting certain statements and. admis-
let. .The blood on the brassiere was of the sions in the nature of confession made by
same type as that of the deceased and of defendant to certain officers in Nye county
the same type as that found on the shurt-and shortly after the assault and while he was
trousers of the defendant and on the street 5 custody. The proof shows that ose
where deceased was first wounded. by the statements were made voluntarily by the
blow on the head. The testimony showed defendant, and without the use of force,
that these items were in the same condi- threats, inducements, or promises, or hope
tion at the time of the trial as when they of reward: but there is no showing that,
were recovered. The shirt and trousers previous to making ciak siatetnents, the
were the ones worn by appellant at the officers having defendant in custody 1in-
time of his arrest and at the time of the formed him that, if he made any state-
events preceding it. There was nothing SO ‘nents, they might be used against him.
gruesome in any of, these, three resin This assignment of error is without cme
to prevent their submission to the jury. Sr aR Sy BE in this sate, a8 there
[11] Specification No. 5 asserts a es a ae sc pcoayage std rane :
i issi ri three of a confe
Sikes ee ia See be apueiliak custody, unless it appears that he was
a we to Officer Burke of the San warned that what he should say aed:
Frarciseo police force immediately follow- used against sapeon Cyc. toe: ye Th pk
ing defendant’s arrest near the ocean beach treating this question, says: eee
San Francisco. The second was made that a voluntary confession is a eh
ss Officer Murray of the same department out the accused having iar peer al
while enroute in the police car from the warned that it might be use i ee
beach to the city hall in San Francisco. does not render it en UAE m8
The third was made to an ri ogee of ms a arenas searet wheres a a
2 f and to other police offi- where the acc
eae ae icy at some two hours after In Texas, by statute, 2 ent
the arrest. It is asserted with reference to a prisoner while in rose y dig gee
each of these confessions that no proper unless he was warned t at w 3 ~
on was laid in that the defendant gay might be used against him; a

foundati ; ug) ae . Fe
was not informed on each occasion that are similar provisions in other states me
pi > . . n
what he said might be used against him. js not the duty of a police officer, i até
The record shows that.in connection with absence of a statute, to caution a pris

the statements made by appellant (the first as to the consequences of aes
two were narrative in form and the’ third ment, if the statement is volunté ee e
was by way of question and answer) NO merely to refrain from inducing

force or threats of any kind were used nor make a statement. .

was any promise or offer pt towant of: eoy In view of the foregoing, citation of ay
kind made or any compulsion of any sort thority from other states is unnecessary:
used. All statements made by me ce ie a but we may note that our examination "
were made voluntarily and he Magee a other authorities indicates that the rule
be very willing to talk.” Appellant, in this hia: ska sdaeitita “the Mircovich case is
assignment of error, relies entirely upon supported by the great weight of authority:
the absence from the record of any show-

i ellant. was advised that it was
Fd cae ke a statement error certain remark

: 5 : 3
Appellant’s sixth specification cites a

‘strict attor-
g of the district 2
unnecessary for him to ma

STATE v. GAMBETTA ' Nev.
Cite as 208 P.2d 1059 , 1067
ney in his closing argument to the jury. [14] Appellant’s seventh and last as-

The argument attacked is as follows—the signment of error is the trial court’s denial
italicized portion being claimed to be a of defendant's motion for new trial. This
violation of our statute prohibiting a special assignment embraces the. errors asserted
instruction relative to a defendant’s failure under assiguments 1 to 6, inclusive, and in
to testify :? addition that the verdict is not supported
_ “Now, in a way, I like circumstantial by the evidence and is contrary to law and
cases. If I had five eye witnesses at the to instructions given the jury, particularly
intersection of Island Avenue and Virginia instruction No. 18. As to the asserted
Street, and I could arrange for an automo-_ insufficiency of the evidence, we may repeat
bile collision, I might get five different what this court said in State v. White, 52
versions of that automobile collision. One Nev. 235, 285 P. 503, 507: “The facts
person would describe how the car came established were of sufficient probative
into the intersection, and how the cars col- force to support the verdict, and con-
lided, differently, from the next, and so on sequently our inquiry can go no further as
down the line, but fortunately in this case to the ground urged. Nothing is better
there isn’t any conflicting testimony, abso- settled by the decisions of this state than
lutely no conflict in the evidence, nor is that this court is without jurisdiction to
there any, denial of any of the testimony disturb a verdict in a criminal case on the
that has been produced here. It all stands ground that it is contrary to the evidence
uncontradicted and undenied. Everything when there is substantial evidence to sup-
that has been produced here is an estab- port it. The corpus delicti may be estab-
lished fact.” lished by circumstantial evidence. State v.
[12,13] It should first be noted that Cardelli, 19 Nev. 319, 10 P. 433.”
we have heretofore held that the express . [15] AppeHant concedes that instruc-
prohibition of a charge to a jury relative to tion 18 was proper. Indeed, it was given at
the failure of the defendant to testify his request. It reads as follows: “The
(with the exception noted) implicdly pro- Corpus delicti in a criminal action cannot
hibits the state’s attorney from commenting awfully be established solely by evidence
on such failure in his argument to the Of a confession, or of an admission, or of
jury. State v. Clarke, 48 Nev. 134, 228 both, made by the defendant on an occasion
P. 582. In that case however, as well as OF Occasions other than while appearing
in State v. Harrington, 12 Nev. 125, quot- 2S a witness in this trial or solely by evi-
ing with approval from the opinion in dence of any number of such confessions
Clinton v. State, 56 Fla. 57, 47 So. 389, and admissions.”

2
Statements like the above were held not to [16,17] Appellant insists however that
violate the statutory prohibition. See also the verdict is contrary to this instruction in
State v. Williams, 35 Nev. 276, 129 P. that the corpus delicti was not proved oth-
317; State v. Tecope, 54 Nev. 308, 15 P.2d er than through the confessions of the
677. In view of these holdings it becomes defendant. This contention attempts to
unnecessary to discuss the authorities from find support in a carefully prepared treatise
Other jurisdictions advanced by appellant. on the subject of proof of the corpus
In virtually all of such cases however the delicti, and while we commend counsel for
impropriety of such statements arose by his zeal, it adds up to nothing more than
Teason of the special circumstances of the the contention that corroboration must be
case whereunder the ‘remarks could not be found elsewhere in the record.
considered other than a direct reference, or
a reference by innuendo, to the defendant's
failure to take the stand. .

As we
have seen from State v. White, supra, the

corpus delicti may be established by cir-
cumstantial evidence, and we are unable

2“No instruction shall be given rela-

tive to the failure of the person charged

with the commission of crime or offense

, to testify, except, upon the request of the
person so charged, the court shall in- ’

‘struct the jury that, in accordance with a
right guaranteed by the constitution, no
Person can be compelled, in a eriminal
action, to be a witness against himself.”
N.C.L. § 10960.

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GAMBETTA, Eugene Leo, white, ex=convict, asphyxiated Nevada (Washoe) on’ 10=18=191)9, ee

SEATTLE, WASH., police. were confronted
with a puzzling crime when the mutilated
body of 22-year-old Donna Woodcock (right)
was found in one of the city’s vacant lots.
The victim, a carhop at a roadstand, was
last seen leaving the place in a new car driven
by a young man. Within a few days police
arrested a suspect, who allegedly confessed.

THE BODY of missing Reno divorcee Thelma
Rapail (far right) was discovered by San
Francisco - police in the trunk of her ex-
busband’s car. The former spouse, Eugene
Gambetta, an ex-convict, was said to have
confessed the murder of the woman. He was
citing in the machine, calmly looking out
ct the Pacific, when the corpse was found.

J
A

facing the lens

& FANTASTIC mixture of bangtails, bookies, DAPPER JUDGE PELLECCHIA (right) was
‘can sharks and missing funds, received ad- charged with defrauding a trust company, of
ced color when the name of dimpled Gloria’ ‘ which he was a vice president, of over $630,000.
Cook (below) was linked with that of Police f He allegedly admitted losing most of the money
ladge P. James Pelecchia of Newark, N. J. on the horses. If Pellecchia’s judgment of
fhe judge, charged with embezzlement, was horseflesh was poor, the jurist made up for
described as a gay bachelor who lavished this lack in Newark’s family court where he
gilts on girl friends and gambled heavily. was known as a “tough and shrewd” arbiter.

_. When was that?”
- “A few minutes ago.”

ought h

gaming tables

HE cop looked at the narrow red
shoe, and then at the cab driver who

had handed it to him. “What about -

it?” he asked e

_ “I found it,” the driver explained.

"Tt was in the middle of Ralston Street.

I think it's got blood on it” =
Ar that, the cop studied the shoe

more closely. When his eyes came up,

~~ they were sharp and alert. “On Ralston

:Sureet, you say?" 205 = 2
“That's right. Just as you come to
the corner of Second. I noticed it when
I was. cruising my cab through
block.” = =" Aly Se ee ie AP

“And, that’s all you exw this one a
"That's all.” The driver smiled half-

- apologetically. “I didn't look very hard

for anything else. As soon as I saw the

bloodstains, I figured I ought to show —

it to a cop.” = poe

‘The patrolman examined the shoe
once more, holding it carefully, almost
daintily, by its three-inch spike heel
Presently he looked up and said, “Okay,
suppose you show me where you found
Ser 3 hela, etre

“The two men went back to. the cor-
ner of Ralston and Second in Reno,
Nevada. On that warm July afternoon

» in 1950, there were few people out of

doors. Ralston Street was deserted.

“Here's where I found it,” the driver
said, and pointed to a blank spot on
the dusty pavement. >

The cop's eyes swept the length of
the block rapidly. “Suppose we look
around a little,” he grunted.

“For what?” the cabbie inquired.

The cop shook his head grimly. “I
don’t know, exactly. Maybe for anoth-

‘
*

There were lots of guys in Reno

( who could have made Thelma

happy—if she could have sha-
ken the fear of her old lover.
(Specially posed)

The killer, without coat, and

view Thelma’s body, as it was
found in. the trunk of the car.

Cran A
Inspector Frank Ahern {right) : A]

er to Reno...Good times and

kept her there—until she bet on

er shoe just like this one. Maybe for a
woman's foot that fits it”.

Ie was the cop who found the white
hat in the middle of the next block: The
white har was smeared with dark-red
stains..So. was the woman's purse’ that
lay up against the curb just a few feet
away. fe eee? eect hea

°“Funny,” the cop muttered. “If there
was any kind of accident here, I would

~ have heard ‘about it.” ==

-"Maybe it only happened a little
while ago,” the cabbie observed. “May-
be whoever hit the dame dragged her
into his car and drove her to a hespital

without waiting to tell the police.”

“The cop didnot think so. “If it was
atr accident, it happened a good few

hours ago,” he declared. “You can tell

by the way all the bloodstains are dried
He. opened the purse and poked
through it carefully. In addition to the
usual contents, there were some per-
sonal papers that bore the name Thel-
ma Ribaill and an address on Ralston,
back where the shoe had been discov-
ered. The cop retraced his ‘steps.

The door with the name Ribaill over
the bell was two flights up, in a small
apartment building. The woman who
answered the policeman’s ring did. not
look as though she had been in any acci-
dent. She was young, good-looking,
with dark hair and dark eyes that stared
at the cop with a mixture of curiosity

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‘the wrong mant

and fear. The cop was not surprised.

That is the way: most people looked,

when the law came knocking at their e

“Thelma isn’t home.. ['m her_ sister,”

Mary de Rusi.” we

» “When do you expect Miss Ribaill2”

"I don't know. What's wrong? Why
do you want Thelma?” = 57"
“He did not answer her question.
He just held up the purse. “Would you
know if this belongs to your sister?”
©The brunette peered at the purse in
the dim light of the hallway..“Ir looks
“Tike Thelma’s.” She took it from the
,cop and examined it ‘more closely.

“Why, yes, it is Thelma’s. Where did ;

. you find—?” The question died in. her
throat as she suddenly noticed the dark
stains. “There’s blood on it! What
happened to Thelma?” Bie

“| don't know,” the cop replied

Pht =

gently.“I found that purse on the street _

downstairs. also found these.”- He
brought up the hat and the shoe he had
been holding inconspicuously at_his
side. “Do you recognize them?” ~~ >>

Mary de Rusi did. The worried lines

in her face showed that she did, even
before she spoke. “Where did you find +

these things?” she asked.
“On the street downstairs—almost in
front of the house.” The cop studied

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SCHOOL OF LAW

1068 Nev. 208 PACIFIC REPORTER, 2d SERIES
to accept appellant’s contention that “the
evidence offered by the state in the case
at bar, aside from the purported confession,
is insufficient to: prove the corpus delicti.”

The presence of deceased’s body in the
trunk of defendant’s car, the proof of a_ struction of the court, apparently found

death wound that could not have been ac- the evidence sufficient. First we may note
counted for by accident or suicide, the tes- that the question of venue has not been
timony of the physician performing the raised as an assignment of error. We may
autopsy, the exhibits received in evidence next observe that while the testimony,
and the other facts hereinabove recited, aliunde the confessions, is entirely circum-
constitute ample proof of the corpus delicti. stantial, there were numerous items that
independently of, as well as in corrobora- the jury had the opportunity and the right
tion of, the voluntary statements of the to consider. Although the companion of
defendant. Although most authorities have the deceased could not identify the man by
been careful to avoid a definite rule as whom he was accosted at the time the wit-
to the extent of proof required for this ness was returning deceased to her apart:
purpose independently of the confession ment in Reno at 5:00 A.M. the day of the
of the defendant, we have no hesitancy in shooting, his story of the occurrence most
finding it ample in the instant case. In accurately corroborates the statement of
re Kelly, 28 Nev. 491, 83 P. 223; State the meeting as made by the defendant.
v. Plunkett, 62 Nev. 258, 265, 149-P.2d 101, Defendant’s identification of the Lincoln
142 P.2d 893; State v. Tramner, 39 Nev. automobile and the exact Nevada license
142, 154 P. 80. We find it unnecessary to number thereof is a further corroboration.
discuss the numerous cases discussed by It is hardly conceivable that he could have
appellant. They either frankly concede the known the license number unless he had
rule as followed in this state, as discussed seen and remembered it. He testified to
in the Kelly case, or are readily distin- his accuracy in remembering items of that
guishable from the instant case. Appellant kind. The wound on deceased’s forehead
claims that there is an entire lack of show- and the description thereof by the autopsy
ing with reference to the movements or physician, the hearing by two witnesses of
activities of the defendant between 5:00 the shot that accidently resulted from this
P.M. on July 14 to the same hour on blow, the blood on the deceased’s shoes
July 16 when he was arrested in San and on the sidewalk where this blow was
Francisco and that no evidence either di- struck, the testimony by the witness who
rect or indirect indicated his presence in saw a gray sedan parked in front of the
Washoe County, Nevada, during this cru- Gibson Apartments and who heard an
cial period. Appellant suggests many argument between a man and woman, fol-
things that could or might have been lowed by the departure of the gray sedan
proved to supply this lack —witnesses who north to Fourth Street, and thence east,
saw defendant in Washoe County during the number of hours that had elapsed be-
this period, defendant’s staying at an auto tween the death of deceased and the dis-
court in Reno the evening of July 14, covery of her body as estimated by the
the passing of the Nevada-California check- physician, the last known presence of the
ing station by defendant's car on the early deceased in Reno and the discovery of her
morning of July 16, speedometer readings body twelve hours later in the trunk of
on defendant’s car showing the trip from defendant's car in San Francisco, the prior
San Francisco to Reno and return, finger- threats of defendant against the life of the
prints on the car or the gun, testimony deceased, the deadly fear in which de-
of such an unusual occurrence as a woman ceased and her sister held defendant by
leaping from a speeding automobile, ac- reason of these threats and by reason ©
companied by a pistol shot, at 6:00 in the his prior relations with her on his several
morning when considerable traffic might trips to Reno—all of these things, besides
be expected, blood stains on Fourth Street other matters in the record, were appaf

where the deceased was shot, ballistic tests
of the bullet that passed through deceased’s
body, proof that the pistol had been re-
cently fired, etc. But without proof of
these things the jury, under a proper in-

STATE v. GAMBETTA ‘
Cite as 208 P.2d 1059 Nev. 1069

ently considered by the jury. Every one of
these detached items fitted in completely
with the defendant’s confessions.

2 This court has often referred to the pro-
ete N.C.L., § 11266, witch reads as
“No judgment shiall be set aside, or new
trial granted, in any case on the eoasd of
misdirection of the jury or the improper
admission or rejection of evidence, or fee
error as to any matter or pleadin or
Procedure, unless in the opinion pre th
court to which application is made py
an examination of the entire case it shall
appear that the error oiplained of has
resulted in a miscarriage of justice, or be,

actually prejudiced the defendant, in
spect to a substantial right.” a
Date made a most careful examina-
r entire record and of all of the
assignments of error and of the briefs and
oral arguments of counsel, and we find
prejudicial error. SAE
The judgment and the order denying a:
new trial are hereby affirmed, and th
district court is directed to make she ro :
order for the carrying into effect by tbe

warden of the state prison of the udgme
J nt

HORSEY g
ae » C. J., and EATHER, J., con-

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Here he j Sea Eancipdined fe Deputy Sheriff. Jac Goss.

: Geieae Washoe iia aa Fras

“In answer, Miss de Rusi ef hen

iG the ‘apartment sad showed him. 6

snapshot of Thelma Ribaill. What he
saw was an atractive, dark-haired —

tne woman in her twenties, with_
~ br

ight, fun-loving eyes and'a sparkling -
smile. “May I hold < on to A the.

A fantly. “But I'm going to’ do what
I can to locate her and find out.” He

started to back out of the apartment, —

~ then paused to ask, “Would you know

if this fellow Jim Tracy owns a car?”
... Mary de Rusi thought it over for a
* few seconds. Presently she said, “If he
does, I don’t think he has it here in
Reno with him. I know that once be-
fore when he called for Thelma they

cleft in a taxi.”

The cop nodded. “Okay, ma’am.
~ You've been very helpful, and I'll see
eee com do about finding your sis-
ter. Meanwhile, don’t get too upset
about this.” _

“who began with: the sous mores oe

Beceps qmaens women, the Bor

~~ By this time, Thelma Ribaill’s :
was frankly and unmistakably upset.

“I've been calling all of Thelma’s
"friends, but none of them know where _

local hospital were checked, but

ees nothing. Goss had not ex- —
eemcer chew woul, But ke wis toe 42

thodical man and could not tolerate

His next ‘move. was to get oa the
“phone and start calling the hotels in
town, beginning With the largest and
“working down. A half-dozen calls
jater, he had what he wanted. One of

“the hotels Tisyed a James Tracy in its

aren

“<°¥d like to speak to him,” Goss told
the woman at the switchboard. :

“There was a brief pause, and Goss
was informed that Mr. Tracy was not
in his room at the moment.

“Do you know where he can be
reached?”

. “Tm sorry, he left no message.”

“Thanks. I'd like to leave a message
for him. When Mr. Tracy comes in,

have him call the sheriff's office.

Tell him to ask for Jack Goss.”

That took care of the desk work. A.

half-hour later, the deputy sheriff was
talking to Mary de Rusi in the apart-
ment on the corner of Ralston and

~ Second Street.

The woman jeunes the 1 name vot ;
one of the local gambling casinos. The:
--deputy leaned forward with interest.. ~~
“What does se So tberes Is she a

dealer?”
“No, she’s ots a shill. You know,
pretends to play at the tables when

things are slow. It helps keep the place
looking active, and it encourages other

people to play.” -»
“She been working there long?”
. “Only a little over a month. Thelma
doesn’t really live in Reno. She came
here to get a divorce, and she took the
job because she had to do something
while she was waiting for her papers.”

“Who was she married to?”

“Gene—Eugene Gambetta. He’s in
California—in San Francisco. That's
where Thelma lived before. she came
here.”

For nearly a full minute, Goss con-
sidered the information thoughtfully.
Then he asked, “Besides this fellow
Jim Tracy that you mentioned, did your
sister get to know any other people

- here in Reno?”

-ion. I'm just

town who was giving: her trouble?",
~- “Why should anyone want to give

* her trouble? No, there's no such per-

son, as far as I know.”
“I wouldn’t know. But this town is

"<= loaded with all kinds of characters— -

: plenty of guys on the make—and your
» sister is a very attractive young wom-
=an.”

Mary de Rusi shook her head again.

“As far as I know,” she declared em-

‘Phatically, “Thelma never had any of

_ that kind of trouble.”

Goss stood up and reached ‘foe his
hac. ‘ ‘Okay, ma'am, I was only asking
a routine question. I'll be going now,
and if you hear anything youll get in

. touch with my office, won't you?”

“I certainly will.” Miss de Rusi held
the door open for him. “Have you
found Mr. Tracy yet?” she inquired
hesitantly.

“Tve heat his hotel,” Goss replied,

“and I'm hoping I'll find him as soon

as T-leave here.” _

“He's been saying here close to ae

swell sa ies the girls. ao

Thar eT cent off Guryt shore
time later, and I’ didn’t come on again
till this evening.”

likes the -
girls,” he said oe now do you .
know that?” = =

“Well, it’s ‘only, an tng the

is, I've seen him meeting all kinds of
women in the lobby here, and it struck
me he wasn’t the shy type when it came
to the ladies.”
Goss reached into his pocket and
pulled out the snapshot of Thelma Ri-
Baill. He held it before the clerk’s eyes.
“Would you know if this was one of
the women he met in the lobby here?”
The clerk studied the portrait care-
fully. When he finally looked up, his
face was blank. “She doesn’t look fa-
miliar to me. It could be he met her
here, but I don’t recognize her.” -
Goss glanced at his watch. It was
after ten o'clock. The chances were that
Jim Tracy might show up at any mo-

ment, and the deputy was tempted to /

wait for him. Still, there was one more
avenue he had not pursued, and that
finally determined his decision. He left
the hotel and headed toward a nearby

gambling casino, the one where Thel-
ame Ribaill worked. as a tats girl

ees to indicate he ander
assuringly. "I wasn't passing any opin- stood. “You say this Tracy
ing to get a lead on ~
-where to look for her. Do you know
if she had. any enemies—anyone in

~~ clerk explained hastily. “What I mean

_ girls on the floor,” the man su;

“Thelma was e Weeey, friendly wi
of them.”»

suggestion, a
Eileen Adams, a pretty blonde eatin,
blackjack, turned out to be helpful”
~ “Sure, I know Thelma,” said
answer to the mR, S Sere “She's

‘night, right here in the casino. She"
came in with a man—I don’t know who
he is—sometime around eleven o'clock,
and they were at the roulette table,
playing for at least an _hour—maybe-
more.” ... “a
"You mie ‘what “Hie man
looked like?” Goss asked. = ™
“A litte bit. He was taller than
Thelma, kind of nice-looking, and I'd
guess about thirty-five or six. I didn’t
meelly, get © pod look at ben Beoee
I was busy working.” ~~
“And you say they were here rogetb-
er about an hour?”
“At least an hour. It could be moré.”
““Do you eee. if they left to-
gether?” :
“No, I don’t. I dilate t see heat eave?
Goss considered the information for
several moménts and then agked,; “Do
you remember what Miss Ribaill was
wearing when she came in last night?”
The blonde hardly had to think
yabour it. “Yes, she was wearing a black
ess and a white hat, and she was car-
trying a white pocketbook. I remember

it distinctly because I always thought *

she looked good in that outfit.”
-“How about her shoes, did you no-.
tice them?”
: iCentineed | on page 50)

to persons
involved im this case.

a pretty ‘strong accusation, ”
said softly: “Particularly when —
't have a motive to back ir up. —

nei, though.” :
The deputy lost no time in followin,
suggestion. Oddly enough, a neigh-

bor who lived only a short d

“All right, you remember waking up,
'tyour” | BERS See
» “Sure, I do. Early this morning. I
~ Came to in the barnyard. I was stiff and
Sore all over. They must have beat the
~ liver out of me and let me lie there in
_» the mud.” Been
~~ Crunk considered a moment. This
was November 2, 1926, and Novem-
_ber nights in Illinois are cold. “It’s a
wonder you didn’t freeze to death,” he
muttered. “Have you no idea who these
ould drug you

ct of

the road, confirmed Smith's in.

le story. “I saw the sedan parked —

a the drive,” he reported. “That was

shotgun

Premises,

Crunk intended to find it, -
~~ With Bartley and Deputy Sheriff
Elmer Durm, the latter having driven
up to the farm only a few minutes be-
fore, Crunk searched the old-fashioned
house from top to bottom. Nothing
more was found, however, save a half-
full box of 16-gauge shotgun shells
which Durm located in a. dresser

drawer. - 1
Crunk looked them over carefully.
They were No. 6 shor—the same size

as those which had slain the woman. —

one else in the car,” he
“I didn’t look close,

fear swept across the

. . . Crunk’s voice

Tose excitedly. “Wasn’t there some

woman relative who lived with you for

a while?” he demanded. “Where is she
now?” :

“You probably mean Grace McCar-

thy,” Smith said indifferently. “Yeah,

she lived with us for nearly four years.”*

~ “Why'd she leave?” .

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ighbor had offered the
information that he, too, had heard the

knew his or her

st way about the house. The fact that the

killer was able to pick that shotgun off

. the rack proves that—and the McCar-
. thy woman would know just whére ir

was.” as ‘
Abruptly, he slowed his car and
stopped at a farmhouse. The man who

~ answered his knock at. the

‘turned to the Smith farm.

ee it crue that Grac McCarthy ran
you down with her car about a year

_ ago and broke your leg?” he demanded.

Smith shuffled testlessly, bue when

he looked up there was open relief on

his face. “I didn’t want to cause any

~ “trouble,” he said, “and I didn’t want to
_ accuse anyone unjustly about what
happened here last night. But Grace
-.did more than break my leg. She came

know anything about this
‘0 used to live with

_ “Sure. Everyone knew her. “They

to have quite a bit of trouble over
there until she left.” :
“What kind of trouble?”
“I don’t: know what it was about, but
I saw all three of them in the barnyard

. one afternoon, fighting over a shotgun.

I had a notion to say something when
I drove past, but I figured they weren't
children and they knew their own busi-
ness.
“When did: this happen?” a
“Maybe a year ago. Grace seemed to,
have it in for Joe because a short time
after that she ran him down with her
car. She broke his leg and put him in
the hospital for a while.”
_ Crunk changed his ‘mind about go-
ing to town right away. Instead, he re-

in the hospital after it had been set

-and pulled at the ropes so it would”

break all over again. She hated Orpha
and me. She said she wanted to keep
me suffering—and after we had given
her a home for four years. But that’s
women. fot you. And I’m thinking it
mightn’t hurt to ask her where she was
last night, since you found those tracks
down by the pond.” Se a

_ “Tm thinking the Same thing,”
Crunk said decisively. “Just give me
her address, and I'll be on my way. But
first you'd better get me a pair of your
wife's. shoes. so I can check them for
size against those casts we made. I've

ot to be able to prove that your wife P

did not make those footprints.”

Wure Smith wis int the bedroom, _-

Crunk walked to the dresser draw-
er where the box of shotgun shells was

_ kepr. He pulled it open and then closed

Thelma knew him, and she asked him
what he wanted. He said she knew very *
: pu un-# well. what he wanted, and he whipped
mistakably narrowed down to Jim — out a gun, and he told me to beat ir. I
tracy. Thelma had been with him as "didn’t know what to do, buc then Thel-
“ger the previous ma said, ‘It’s all right, Jim, you'd bet-
had still been wearing ter go. I'll be all right.’ So I left—and-
carrying the white _ th t was the last time I saw her.” :
a found. bloodied : *

_ Adams.”

2” Tracy eit
e guy had that gun pointed at me,
peadess Thelma didn’t seem to
very serious. She sold _me

ous shen sade, “Looked back when
L, was: t halfway down the lock, ~
pein y away. The~two of them were

pacts pice Td Mle gem, sot ti

“No, don’t do that,” ‘Goss said
quickly. “Fm coming right over. If -
“Tracy starts to leave before I get there, :
do what you can to hold him.” =; |
“> Jim Tracy made no attempt to leave.
Goss found him in his room, prepar- |
S to turn in for the night. After iden- -
e airing himself, the deputy proceeded
“to question the man closely. ‘At the
“very first mention of Thelma Ribaill’s
name, Tracy reacted fearfully. ~~
" “What's happened to Thelma?” he
asked. “Is she in trouble?” =) =

Se ieray get Tact devcay?

all right?" =
_ Tracy dropped his eyes to he ¢ floor
~ again and shifted unhappily on the
> bed. “Yeah, I guess I should have done
Tracy shook his head, perplexed. “| that. I thought about it a couple of
n't know, but I'm worried.” >>. times—well, I’m out here on business
“= “Why?” * <and I've got a wife back home, and—
Becouse: of what Sa — -well, it jist seemed to me that maybe
night.” Tracy suddenly looked up at it would be better if I didn’t get mixed
_ the deputy sheriff and asked, “Where up in any kind of trouble. I guess I

is Thelma now?” .— / - ~ should have called” her, though.”

Goss hesitated a moment and then — “I guess you should have,” Goss
replied, “I don’t know: That's why-I’ve *grunted. “You say this man got out of
come to see you. Thelma Ribaill abi a car. What kind of a car?”.
~ been home since she went out with | “A_ sedan,” Tracy replied. “Like I
you, yesterday evening.” said, it was pretty dark, buc I remem-
__. Tracy shivered. He seemed to go ber it was a sedan, and I'm pretty sure
_ limp, and the muscles in his jaw it was a light color—a kind of light
_ twitched. “I knew I shouldn’t have left r :

her with that man,” he muttered half-
~ aloud.

“What man?” Goss snapped at him.
Tracy did not answer immediately

“, He sat on the edge of the bed, staring
= down at the floor, twisting his hands
in his lap. Presently he raised his eyes
and said, “Something very funny hap-
_ pened when I E Pooks Ahelees home Jose.

“And you're sure you can't give me
any more of a description of the man?”

“TI told you it was pretty dark,” Tracy
retorted sullenly. “All I can say is what
I told you already, and that the guy
seemed older than me—maybe in his
middle forties.”

“Did Miss eSailt mention his
name?” =

Yor dil al righ Thanks 4 be Ms ape and came over to us.

* away, “Keep est available; Ti

oy pate eek

seemed to me they. were walking Lape

- “They were talking quietly, but the guy
“*had a gun in his hand. How come you-—
“never even bothered to tall Miss Ri-
at ie xs dat So Biel ci te Was

_ hearing any name. But he wasn rae
“stranger to. Thelma—I'm sure of. that.
. She knew him the minute she saw him.
That's why, when she ‘said it was okay
for me to leave, £ Banred she knee,
| what she was doing” ‘n

- Deputy Sheriff on nodded
‘tose to his feet. “It could be you fig- S
ured wrong,” he grunted. “Her hat and
purse and one of her shoes were found
out on the street, where you left her.
“They had blood on them.” He stared

_ medi i
bes bot ren a

he said as he reached to open the door.
_. It was a little short of eleven o'clock
when Goss stepped out on the street

_ front of the horel. There would still be”

ven. $0 did the man who sat motion-
# tee behind the wheel, staring. with.
wide-open, blank-lookin; ng .cyes

? hats. h say, ‘
ste fe stered. “Te w dark. But I'd guess — 2
“the: desk: clerk jatieeg rea ae height, and built kind “of her vigil. Her voice eed
ies oe up in his room now. Do you of heavy. He 1 ina, low, husky “as she greeted the deputy _ sheriff and :
‘want me to Connect you with him?” voice." The man paused a moment, admitted him into her a

partment.
"Have you found out anything?” she
basked him, “Have you seen Jim Tracy?)

"I just left him,” Goss said quietly,
~ and proceeded to repeat the main facts”
of his interview with the man. >
= The information did fot serve to
© quiet the sister's fears. “If Tracy is tell.
ing the truth, it sounds terrible!”

“And if he's not telling the truth,
it’s also bad, because it means he’s cov-_
-ering up something,” Goss added. Pres-
_ ently he said, Pesccally.? Thaye a feel--

ing Tracy is telling the truth, and

that’s why I'm wondering who your sis-
ter knew who would wait for her in
front of her house at four in the morn-
ing with a gun.” :
Mary de Rusi remained ‘silent, star-
, ing at the rug at her feet. Goss said,
“How about Thelma’s husband—the
one she divorced?”
- “You mean Eugene Gambetta?» Bur
he’s in San Francisco. He left Reno
more than two weeks ago. <

“He could have come back,” the —
deputy observed. “Tell me, Miss de
Rusi, just why did your sister divorce
Gambetta?”

“Well, they'd been married for sev-
eral years,” the woman said, “but
Thelma wasn’t happy with Gene, and
she finally left him and came here for
the divorce.”

“Did he contest it?”

“No, he didn’t, but he tried to talk
Thelma out of going through with it.
He came here several times just for
that. The last time he was here was
_just before the final: decree came -

: ee oe
Lage A inside, doubled kd and. life-

3 At roe in San- Francisco,
Gambetta spoke freely to homi-
cide inspectors George Murray - and’
Frank Ahern. “I wanted her to come.
back,” he said woodenly. I didn’t want —
our marriage to be busted up. But sh
wouldn’t listen to me. She said we were
through for good. So I lost my temper _
and slugged her on the head with my |»
gun. Then I threw her in the car and
started to-drive away, but she managed
to. get‘the door half-open and fell out.
“I stopped the car and went, back»
after her. She was lying there uncon-
scious, ind I lifted her up and pushed
her into the trunk compartment. About
a dozen cars must have passed us, but
it was dark, and they didn’t notice any-
thing. Nobody stopped, and I gave it
to her with the gun. Thén I slammed —
the trunk shut.and drove around Reno. ,
for hours, trying to get up enough nerve.
to turn myself i in. Then I gave up trying -
and drove back here.” ,
The next day Gambetta was ‘taken
back to Reno, the scene of his crime.

A strange group er visitors came to bedside of Dr. Hugh Hamilton, well-
-: known Kansas City obstetrician, to arraign him on charge of attempted mur-
“der of his. wife, Martha. Dr. Hamilton, in the hospital for fractured hip,
pleaded not guilty. Magistrate (soe center, set preliminary hearing date.

3 >
seus

eS
BAe

Bee

. green baize... the clatter of plastic

By WILLIAM RICHARDS

HE whir of metal spheres
around teakwood wheels
eee the rattle of dice
against felt covered ma-
hogany ... the slap of cards on

against steel . . . the cacophonous
ka-chung of the slot machines... .
Slowly, provocative Thelma Rabail
moved through the gambling hall’s
seductive symphony. Men turned
from their intent dallyings with
chance to look at her.
She was not beautiful, but she
was the most admired employee of
any of Reno’s superior casinos. She
had what the patrons of her place,
the largest of all the places of for-
tune in The Biggest Little City in
the World, could only describe, in a
poverty of imagination, as class.
Now and then a customer reached
up a hand as she passed. She touched
the tips of the proffered fingers with
the carefully manicured tips of her
own, smiled a faraway smile and
passed on, but the customer was
satisfied, momentarily, at any rate.
Such a recognition from Thelma
meant good luck; and good luck, at
the moment, meant having the whole
world for a playground,
At one of the dozen Black Jack,
or Twenty-One, tables, she paused.

leaf falling in the wide forest of time; but there, in that
microscopic interval of eternity, there emerged from its
dark ovum the first bleak, inexorable movement of murder.

Tim Harrison had played the Black Jack game steadily
for fourteen hours when he pushed his chips across the
table and called for a payoff.

He was a substantial winner when he quit and as he
rose from the table, Thelma Rabail came and talked briefly
with him. He smiled as he saw her and her enigmatic mask
softened. She turned from him toward the door marked
“Employees, Private,” and he walked to the bar and stood
For just the time it takes one breath there, leaning on the forerail and sipping a Scotch and
to arrive and another to depart, she soda, his eyes on the door through which she had disap-
stood there. Her slim hands touched peared.
lightly on the haunched shoulders of She emerged presently, carrying a tiny hat and a
a player at the full arc of the table, large, black handbag and with a light scarf thrown about
but as he turned to look up to her, she her shoulders.
passed on, leaving for him only a Just outside the door a big man stopped her, leering
vague smile and a faint hint of per- , hopefully into her handsome face, but she walked quickly
fume. past him with a brief gesture and toward Tim Harrison

It was but a fleeting thing, a tiny at the bar. Arm in arm, they left the room..

‘

past See

Sigal Suse ee aes
aS

rst

ee:

Harrison fell in beside her and
as they walked through the club’s
rear door and into the cobbled
alleys that bisect and crisscross
Reno’s gambling area, the big man
she’d passed by stared venomously
at their disappearing backs and
cursed fiercely in a muted tone.

Half a block from the casino, they
got into Tim Harrison’s automobile.
Momentarily they embraced, and
then Tim tooled the car out of the
cobbled little street and turned its
nose westward.

Back in the casino the silver ball
whirled, the cards slapped, the dice
jumped and the slot machines car-
ried on their endless Ka-chung! Ka-
chung! Nobody noticed, or cared,
what happened to the angry man
who’d felt Thelma Rabail’s rebuff.

LITTLE after dawn, on July 16,
1948, a taxi-driver appeared at

“the desk in Reno’s police head-

quarters and pushed a pair of high
heeled women’s shoes, a handbag and
a hat across the green blotter. A red
faced sergeant peered sleepily at the
objects and asked what they meant.
“I found ’em down on Second
street, in the four hunnert block,”
the cab driver said. “One of the shoes
was inna gutter and the other and
the bag and hat was onna curb. Just
thought I’d better bring ’em in.”
The clerk made a notation, dropped
the articles on a table behind the
desk and sent the hackie on his way.
Two hours later, the articles were
laid on the desk of Captain of Detec-
tives Joe Kirkley with the sergeant’s
notes and a brief explanation. Kirk-

ley called for a property’ clerk and
asked him to check the articles; he
returned almost immediately to re-
port that no such goods had been
reported lost anywhere.

A similar check in the office of
Washoe County District Attorney
Harold Taber and the sheriff’s lost
and found bureau revealed a similar
lack of information.

Kirkley now found himself in pos-
session of a good pair of women’s
shoes, obviously almost new, a smart
little hat scarcely worn and a hand-
bag containing $45 in bills and
change, with no trace whatsoever of
their owner.

For there was a total absence, in
the bag, of any other form of iden-
tification.

Ten minutes after he’d scanned

He had cav
of his asso
to his feet
on the nosé

rty' clerk and
ie articles; he
liately to re-
ods had been

the office of
rict Attorney
sheriff’s lost
aled a similar

imself in pos-
of women’s
new, a smart
ind a hand-
bills and
hatsoever of

il absence, in
rm of iden-

he’d scanned

He had caught a brief glimpse
of his assailant. He scrambled
to his feet, but had been hit
on the nose with another blow.

the report from the county author-
ities, Kirkley had the elements of a
second mystery on his hands.

A report had come in that a girl
shill at the largest casino in the city
had failed to return to her home the
night before. She had lived with a
sister, and the sister, maintaining
the girl’s habits were of the best,
was alarmed.

The girl was Thelma Rabail, she
was twenty-five years old; well
poised and sensible and, heretofore,
amply able to take care of herself.

Her sister, Mrs. Ella La Pointe, 441
West Second Street, Reno, had first
reported Thelma’s absence to her
employer, who had notified the
police.

_ Kirkley eyed the report curiously.
Suddenly he established a beachhead
on the mystery which, in time, was
to merge it thoroughly with another.
Mrs.‘ La Pointe’s address, 441 West
Second Street, where the missing
girl had lived, was the same in front
ot which the cab driver had found
the bag, shoes and hat that morning.

essence ARN sk . wis

When Mrs. La Pointe walked into
Kirkley’s office, the first thing to
attract her attention were the shoes,
hat and bag:on the desk. She caught
at her throat, swallowed hard and
then sank into a chair, sobbing:
“There’s Thelma’s hat and bag...
and her shoes... My God!”

Quieting her with the assurance
that there was nothing to indicate
that Thelma had met with violence,
Kirkley allowed the woman to tell
her own story.

“Naturally, Thelma lived a dan-
gerous life,” Mrs. La Pointe said.
“Men would lose at the casino and
then get the idea that she had lured

them into gambling. She was attrac- °

tive and a lot of men tried to show
off to impress her by risking more
than they could afford and a lot of
them blew their tops.

“She fixed up a set of signals with
me. She told me that if she ever was
in danger, she would leave her hat,
or shoes, or bag wherever she could
drop them as a signal. One of them
or all of them.”

It was apparent, from the fact
that Thelma had left all three of the
warning signals, that grave danger

_ had threatened her. Yet she had had

time to divest herself of her shoes,
which indicated that she had not
been taken entirely by surprise.

Kirkley went with two officers and
Mrs. La Pointe to 441 West Second
Street. On the pavement, curb and
lawn in front of the house were un-
mistakable signs of a struggle. Slip-
ping feet had crushed the grass and
there were brown splotches on the
curb and pavement which ultimate-
ly proved to be human blood.

Kirkley asked Mrs. La Pointe if
Thelma Rabail had had any partic-
ular enemies. She could recall none;
only the threats of malcontents who
could win lustily, but couldn’t lose as
enthusiastically. 4

At the casino, the manager and
chief pit man could throw no light
on the mystery of the girl’s disap-
pearance. The manager vowed he
hadn’t seen her for an hour before
her quitting time and the pit man
was at first equally vague.

Then, when Kirkley openly ex-
pressed skepticism, the pit man’s
memory quickened. He recalled, he
said, that Thelma had left the casino
with a man who had been playing.
the Black Jack game throughout the
afternoon and evening. He was, the
pit man said, an old customer, seem-
ingly a special favorite of Thelma’s.

(Continued on Page 52)

crite

pocket and headed west out of town.

I had a wild idea that if I could reach
some coastal town like Pensacola, I
might ship out on a fishing boat and
land in Mexico someplace. If I’d known
what was really going to happen during
the next thirty-six hours, I’d have
turned around and given myself up.

I kept walking at a brisk pace, and
pretty soon I was in a heavily wooded
section. There wasn’t a house in sight.
A bright moon was shining so I didn’t
have any trouble finding my way. The
mosquitoes and other night bugs were
bad, though.

Just before sunup I started looking
for a place to sleep. Most of the land
was dry and sandy, and the tall, scrag-
gly oaks were no shelter from the hot,
blistering sun. I managed to find a
thicket that was fairly shady. so I
curled up and tried to sleep. It was
impossible. The heat was terrific and
all kinds of insects were crawling over
me in a matter of minutes. ;

Several times I heard people nearby
and I hugged the ground for dear life.
The alarm was undoubtedly out for

me by now, and I knew I was a marked -

man.
I hung around the thicket all day
and it was torture. My arms and legs

were covered with mosquito bites. To-

add to my troubles, I was hungry. It
was now ‘more than twenty-four hours
since I had anything to eat. When
darkness fell I started off again, keep-
ing to the west, and the Florida coast.

As near as I could figure, it was
around midnight when I saw a sprawl-
ing, vine-covered house deep in the
woods. I circled around it carefully,
my whole body ached with the hunger.
looking for signs of life. By this time
I removed my shoes and crept silently
onto the wooden porch.

I tried one of the doors and it was
open. So far my luck was running
okay. I slipped inside and stood backed
against the door until my eyes got
accustomed to the darkness. I saw I
was in a large living room. To my right
a tiny bulb burned in a bathroom. Be-
yond that I could make out the glossy
outlines of a frigidaire. Food!

My body shook with anticipation and
I stumbled over a chair. I straightened
up and tip-toed softly towards the
kitchen. I had hardly got there when,

“She couldn’t have left with a customer,”
the manager protested, immediately. ‘‘It’s
against the rules and she always kept the
rules, as long as she worked here.”

“For an old customer,” Kirkley said,
drily, ‘‘she probably felt she could stretch
the rules. What’s the falla’s name?”

The manager said, “His name’s Tim
Harrison and he’s from Elko... but I
think he’s probably still down at the hotel.”
He paused. ‘“‘He’s a decent guy.”

Kirkley located Harrison in a Reno
hotel. The hotel manager accompanied
Kirkley and the two detectives to Harri-
son’s suite. Kirkley rapped sharply and
there was no answer. A second knock was
equally unproductive and then Kirkley,

“Get the h--- out of here, you!”

It was a man’s voice and it. was gruff
and stern and it scared the daylights
out of me. Petrified with fear, I turned
towards the voice and the gun in my
hand became a flashing tongue of flame.
ure twice, six times I pulled the trig-
ger

I heard somebody groan, and it was
only then I realized I had had the gun
in my hand all the time. It was some-
thing I can’t explain, it all happened
so fast. One moment I was happily
anticipating what I’d find in the frigid-
aire, and the next I was blazing away
with a gun like some trigger-happy
punk!

I stumbled from the house and ran
into the woods. I don’t know how long
I kept going, or even what direction
I was headed. All I wanted to do was
get away as far as possible from the
nightmare I’d just been through. It
was only after several hours of running
and walking that I realized I’d left my
shoes behind. Somewhere on my mad
flight I remembered throwing the gun
into a stream.

Alternately running and walking, I
almost keeled over when I noticed a
landmark which told me I was only a
short distance from Milton! In my be-
wilderment I had retraced my steps!

I was too footsore and weary, how-
ever, to care any more. All I wanted to
do was lie down somewhere and go to
sleep. It lacked about an hour until
dawn when I spied the gray dome of
the Santa Rosa County Courthouse. I
was back where I started, with one
exception. I was a murderer!

I crossed the silent street and up the
steps to the second floor. The door to
the judge’s chambers was open and I
went inside. There was a leather couch
and I fell on it, exhausted. I don’t know

_ how long I is but it was pitch black

outside when I awoke. My whole body
felt numb and I could hardly move. I
lay there praying over and over that
all six shots had gone wild. But I knew
I was only kidding myself. That groan
I’d heard meant death, I was sure of it.

When I woke up, Sheriff Hayes was
standing over me. He had a gun in his
hand and he wasn’t smiling any more.
Deputies Wade Cobb and Harvell En-
finger stood alongside him, and I could
see they were having a tough time try-

ing to mask the hatred that shone in
their eyes.

“Get up, son,” said Hayes.

I got. up and followed him from the
room. My hands were handcuffed.
When we reached the sheriff’s office
on the ground floor, he waved me to
a chair.

“Why did you kill them, Larry?” he
asked.

“Them ?”

Sheriff Hayes nodded. “Yes. There

were two of them. Two harmless old
people, Julian Edwards and his wife,
May. He was 75 years old and she was
78. Why in God’s name did you do
it?

A lump filled my throat and I couldn’t
talk. I had shot down two old people in
cold blood! My body began shaking as
if with the ague, and I blabbered like
a kid. Sheriff Hayes and the others
naver said a word, they just let me cry
it out.

When I was able to talk, I told them
the whole story. God knows I didn’t
mean to kill that poor old couple. The
gun seemed to go off my itself, as if
someone else had their hand on the
trigger and was pulling it. Maybe it

was the Devil himself snuffing out

those two lives!

That’s my story. I hope some kid
with lofty ideas about taking the Easy
Buck Road reads it. If it saves one kid
from. going wrong, then maybe my life
won’t be wasted. I know it sounds
corny, but the only things in life worth
having are what you’ve worked hard
for. That’s one thing I didn’t learn until
it ‘was too late.

Later that morning they took me
to the creek where I got rid of the gun.
It was so shallow they didn’t have any
trouble finding it. On the way back they
told me the gun had belonged to Deputy
Clyde Murphy.

I’ll be coming up for trial soon, and
I figure they’ll throw the book at me.
Mr. and Mrs. Edwards had every right
to keep on living, and they would have,
if it hadn’t been for me.

I spend most of my time thinking.
Thinking that if the cops back in
Wichita had only let Max take care of
me things ye have been a lot dif-
ferent. Or, if Sheila had been a square-
shooter maybe I’d have become one.

I guess I was born unlucky.

I WANTED HER FOREVER

(Continued from Page 17)

rapping harder,.shouted:

“This is the Reno police; we want to
talk to Tim Harrison.’

“Go away,” the answer came, thick
and labored. ‘‘I don’t feel like any gags.’’

Better open up, Mr. Harrison,’’ the hotel
manager called, persuasively. ‘“This is not
a gag.” :

There was a brief silence and then the
door opened slowly. The man stood there,

‘ bedraggled and wretched, his face puffed, .

his hair awry. His trousers lay in a heap
on the floor and his jacket and shirt were
thrown across the back of a chair. He still
wore his underwear, his socks lay beside
the bed and his pajamas, apparently un-
used, were draped across the foot of the

bed ... all as if he had climbed hurriedly,
and unsteadily, into bed.
| Kirkley saw, immediately, that the
man’s lips were swollen badly, that his
nose was bruised and that there were
abrasions and contusions on his head. He
saw, too, red splashes on the discarded
shirt and on the pillow cases on the bed.
“What do you want here?’”’ Harrison
asked, sullenly.
“We'd like .to know where Thelma

- Rabail is,” Kirkley said.

Harrison stared at Kirkley, then at the
manager and the other officers. “Has
something happened to Thelma?’ he
stammered.

“She didn’t get home last night,’

Kirkley e
“She n
Harrisor

A’ H
his
night bé
with Th:
had a b
driven
He had |
the hou
avoid d
of the }
Thelma
seized
ground

He |}
assailar
a heav;
so that
determ
but ha
heavy
The m
said, w!
the ass
“Go a
me...
go, nov

Just
his ba
heard t
outta
said }
his ba
when
just g¢
on do\

The
called
that he
light,
clerk
ters, |
idea.

Kir
learne
was
gamit
quent
obtrus
one, t
had
again:

In
refus
miss!
encou
short
cloth)

That

able

Kirkley explained. had eaten none while he was with her. backintothecar. ?
“She must have... 1 took her home,”’ When his attention was called to the spot The man was variously described as

ne Harrison said. on his jacket collar, he offered the informa- . short and stocky, tall and burly, fair
d. tion that it had been daubed there from skinned and blond, and dark and kody
2e T HEADQUARTERS, Harrison told his assailant’s hand. , i The descriptions of the woman were fully
to A his story of the adventures of the Shortly:after noon, a Reno radio station as uncertain ahd there was a general dis-

night before after he had left the Casino carried a story of the discovery of the bag, agreement as to whether she carried a bag,
he with Thelma Rabail. He and Thelma had hat and shoes and the disappearance of or wore a hat, or shoes.

had a bite to eat, he said, and then he’d 4 casino girl named Thelma Rabail. Kirkley quickly checked Harrison’s car
driven her slowly to her sister's home. Almost simultaneously, a Reno newspaper and found that it was a convertible of large
re He had parked about a hundred feet from hit the streets with details of the mystery. and expensive type, that it was painted an
Id the house, he said, and walked back to Within a few minutes, Reno police had unmistakable black.

avoid disturbing Mrs. La Pointe. In front ‘ Mt
of the youse, he said, he had embraced it
Thelma and was kissing her when he was
seized from behind and hurled to the
" ground. .

HIS, then, was the state of things when

a somewhat hysterical telephone call
from Mrs. La Pointe broke into Kirkley’s
deliberations. She told Kirkley that a $
former Reno bartender named Leo Gam-
betta had arrived in town unexpectedly,
had telephoned her and asked for Thelma
and had, when told she was missing,
threatened dire reprisals on her and anyone
_who’d injured Thelma.

“He thought I was trying to keep him
from seeing her,’ Mrs. La Pointe raved,
“and said he’d get me for it. Then he said
that if anything had happened to her, he
knew who was responsible and would shoot
the rat on sight . . . some guy he was
yelling about ...”

“ad Thelma been going with this
Gambetta?” Kirkley asked.

He had caught a brief glimpse of his
assailant, he said, and noticed that he was

_ a heavy set man. He had been: crouching
so that his height could not be accurately
determined. He had scrambled to his feet,
but had been smashed on the nose with a
t heavy blow which sent him down again.
The man was eum him in the face, he

said, when he heard helma struggle with
the assailant, then heard her voice saying,
“Go away, Tim, please. He won’t hurt
me. ...1 can take care of him, but please

Tust then, he said, he felt something in

cid his back as he struggled up again and “Not. since their divorce,” Mrs. La
we heard the assailant snarling, “You just get Pointe said. “They separated three years
‘fe outta here and she won't, be hurt.” He ago and she got a divorce.”

i said he realized that the hard object in Recovering from ‘his surprise, Kirkley
ine his back was the muzzle of a gun and that asked if Gambetta couldn’t have kid-
er when Thelma said, “That’s right, Tim, napped Thelma and used the phone call
a just go away and I'll be all right,” he went as a cover-up. Mrs. La Pointe didn’t
itil on down to his car and drove away. think so, pointing out that Gambetta

The night clerk in Harrison’s hotel was didn’t have that sort of courage and that

me called and corroborated. Harrison’s story Thelma had been missing for hours before
un. } that he had arrived at the hotel about day- Gambetta reached town.
iny light, his face bruised and bleeding. The “He'd been in San Francisco,” Mrs.
acd clerk had offered to call police headquar- La Pointe said, “‘and he told me he called
ity ters, Harrison said, but he had vetoed the her as soon as he got in. I know. he always
® idea. started pestering her as soon as he got in.”
ind Kirkley contacted Elko police and “Does he happen to be a big fellow?”
me. learned that Harrison’s reputation there Kirkley asked.

ght ‘ was of the best. Operators of four Reno “Bim?” Mrs. La Pointe laughed spirit-

sve, gambling houses he’d been known to fre- lessly. ‘“He’s about medium height and a

quent reported that he was a quiet, un- wormy sort.”

ng. obtrusive customer and a reasona ly lucky ‘A few minutes later, two officers, return-

in one, that he never got into altercation and ing from a swing around the western end

of had no reason for feeling resentment of the city, produced two tenants of a motel
lif- against anyone in the casinos. of Highway 40 who, according to their
re- In spite of these good reports, Kirkley story, had heard two shots fired at about
ne. refused to release Harrison. A girl was the time the other early risers were witness-
missing, there was evidence that she had ing the quarrel on the highway. At first,

- encountered violence either while in, or they said, they had assumed the explosions

shortly after leaving, his company and his were the sound of an automobile backfir-
clothing had been egrets with blood. ing, but upon reading the account of
That it was his own blood was the reason- Thelma Rabail’s disappearance, they had
able assumption, but not, certainly, the been convinced the detonations were gun-
final one. shots.

Kirkley sent an officer to Harrison’s Adding up the sum total of his informa-
hotel for the clothing he’d worn the night guess h thoug' tion to date, Kirkley concluded that the
before. The jacket was found to be blood- : gies : killer, having returned to drag the , vibe

, ripped partly off. There was a small spot received a dozen calls, all of which Kirkley smitten with the thought that to leave
tie on the coat collar, sort of syrupy, which attempted to handle personally. vy! ‘a_ the corporeal evidence of his foul deed in
his looked as it had been wiped off someone’s dozen Renoites wanted to report that they such a conspicious place was tantamount

pore hand, perhaps in a struggle. ; ) had heard, and seen, a man and woman to surrender. ;

He The stain was high on the collar and it, uarreling violently on the western out- He therefore had, Soda reasoned,
~dad together with the blood stains, went to skirts of town at dawn that morning. They planned to drive away from Reno, osten-
bed the police laboratory for analysis. The were in an automobile, the informants sibly to the West and Southwest, in the
cm test determined that the bloodstains had said, and it was a light colored car, either hope of disposing of the body in some

been made 7 gore spilled from Harrison’s gray,.sand or foam green. Also, it either remote spot, possibly in the high Sierras,

Hise cut lips and battered nose and the strange, was a coupe, a sedan or a convertible and or at least somewhere sufficiently removed

: spot turned out to be juice from a fresh it appeared to be of a light, ‘inexpensive - from the scene of the crime to avoid an
th 4 apricot. | : make. immediate search. :

Hy e Summoning Harrison again, Kirkley More than half of the informants agreed Kirkley reasoned that his route would

a asked him if he had eaten fresh apricots that the woman had tumbled from the car be West by Southwest strictly on geograph-

e recently, possibly the night before. Harri- in the midst of the quarrel and that the _ ical grounds. There are ‘mountains and
‘ht,’ son said he hai not and, in answer to man had driven around the block and then remote passes in that direction, hidden

ry Kirkley’s next question, said that Thelma returned and picked her up, dragging her valleys and broad highways, impenetrable

forest and, best of all, large cities, such
as Oakland and San Francisco, where a
fugitive could hide.

To the East and South, however, all is
open desert. There is but one main high-
way heading south and that runs for end-
less miles through open wasteland and the
closest community of any size is Los Vegas,
itself but a gaudy village. The same
applied to the East, where Salt Lake City,
so moral that a harmless vagabond wou d
avoid it like a plague, is the nearest large
community and the desert roads reaching
it are as exposed as those to Vegas.

Now Kirkley faced another decision. If
he was to accept the story of the dawn
murder on by rgtty i Forty, and the con-
clusion that the killer had headed toward
the Golden Gate area or the mountains,

he could not, consistently, continue to \

hold Harrison. Yet so vague was the in-
formation concerning the Highway igs |
incident that he did just that, against all
reason, perhaps, but of necessity; he con-
tinued to keep Harrison under sai
Taking stock, Kirkley chose the igh-
way Forty episode as the most likely lead.
Integrating his information on this angle,
he found that he had a man whose descrip-
tion varied greatly from Harrison’s appear-
ance, that the man he wanted probably
was somewhere around five feet eleven,
that he was probably of Latin extraction,
because of his hot temper and apparent
inclination to make much of a romantic
failure, and that he had probably seen
Thelma Rabail on the night of her slaying

and before he encountered her in front of

Mrs. La Pointe’s home in company of
Harrison.

He also, Kirkley concluded, probably
liked apricots and could have been eating
some of his favorite fruit shortly before his
attack on Harrison .. . if, indeed, such an
attack had occurred. : .

At this juncture Harrison sent word that
he had some more information, He told
Kirkley of the man in the gambling casino
who had approached Thelma Rabail just
before she joined him and left the place.

“Ag I recall,” Harrison said, “he was
about the size and general appearance of
the goon that slugged me.”

Kirkley returned to the casino to check
again. No one recalled having taken any
particular note of the man. His description
was so indefinite that, as the manager
pointed out, he might have been anyone of
a hundred customers in the casino that
night. :

A telephone call to Mrs. La Pointe
elicited the information that Thelma’s
former husband, Gambetta, had owned an
automobile, but that he had left,it in Reno
for Thelma to use. So far as Mrs. La
Pointe knew, Thelma had refused to use
it and it remained in storage in the down-
town garage where Gambetta had left it.

A check of the garage revealed Gam-
betta’s car in storage, exactly where it had
stood for more than six months. Gambetta
had paid the storage up until the current
month and was about ten days behind with
the check for that. Having drawn a blank
on this lead, Kirkley asked if any rental
cars were overdue in the garage’s Drive-
It-Yourself unit and the manager said
there was one missing at a garage down
the street. ;

Kirkley went there and found that a
desert sand colored Chevrolet coupe had
been rented at noon the day before with
the understanding it was to be returned
at 6:00 p.m. It had not been returned and
the manager was preparing to notify the
police, as requi by law. It had been

rented to one Lloyd Garrison of San
Francisco. ;
_ “He had a bank book with that name in
it,’ the manager said. “He also had a
driver’s license under that name ‘and a
brief case with the initials E.L.G. on it.”

As Kirkley walked toward the door of
the garage, his toe spurned a small object
that shot across the concrete and struck
against a tire on a parked car. Kirkley’s
eye casually followed the object, then he
walked quickly over and picked it up,
examined it closely. It was, he discovered,
an et pit. |

“How about this?’”’ he asked the man-
ager. ‘Where did it come from?”’

ing for a lookout for a desert sand Chev-
rolet mar driven by a dark, thickset man
who might, even in flight, be eating apri-
cots. Attention of state highway’ officers
and local authorities between Rene and
San Francisco was especially directed to
the bulletin.

He reasoned that the coupe would, after
Lt btm pd sixteen hours of driving
before bindres J westward, need gas.

He selected as his most likely route the
Highway Forty road on which the murder,
if any, was committed and which ran
through historical Donner pass. A good

. fast road, it was less travelled than the

Tahoe road and offered more opportunities
for hiding, or even disposal of an un-
welcome burden.

He got into his car, turned the nose

Westward toward Highway Forty and’

the chase was on.

At Trucklee, at the foot of Donner
pass, he’ stopped at a filling station.
The operator had had no customer an-
swering the description of Kirkley’s
prey, but seemed to remember having
seen such a car in the gas station across

‘the street. Despite the fact that in

order to use this station, a traveler
would have had to be heading East,
Kirkley made a routine check of the
other filling station.

The attendant remembered that there
had been such a car in his place. He
had filled the tank, dumped in two

- quarts of oil, checked the water, tires

and battery and set the‘customer: on his
way Eastward. A few seconds later,
however, he had seen the coupe going
West and Kirkley knew that whosoever
he.sought had made a deliberate effort
to twist his trail by U-turning into the
second ‘station.

Kirkley headed for famed Emigrant’s
Pass, a few miles beyond vertiginous

«Donner. There he could take the road

straight ahead into Grass Valley or he
could head southwest into Colfax.
Reasoning that Grass Valley had a

neighbor wh«

‘ment, V

“Don’t tell me you almost took a flier,
too?” the manager wailed. “That guy that
rented the Chevvy coupe was eating apri-
cots and throwing the stones all over the
place. Almost fell myself twice.”

Kirkley’ had_ now hooked up a missing
rental car, of the same general description
as the car seen in the Highway Forty row;

_a thickset ‘stranger with a prediliction for

apricots; a missing girl; shots that could
have cqnnotated murder; and a San Fran-
cisco address.

Where, except to the West, would he
look for his quarry? :

N ALL-POINTS bulletin clicked, out
of the Reno police headquarters, call-

Highway Patrol station which would
be on the alert, following his bulletin,
and would protect him there, he took
the Colfax route.

Half a mile northeast of Colfax he saw
a roadside stand where fruit and vege-
tables were sold. On a long table were a
dozen trays of reddish apricots, apparently
freshly picked and succulent. He drew up
at the stand and a woman came out to his
car. He asked her if she had noticed a tan
Chevrolet coupe and she became highly
excited.

“Four hours since,” she spluttered.| ‘‘He
bought a lug of ’cots and went on West.
About two minutes after he’d left, they
came down from the house and told me
the radio had said there was a killer coming
this way in a car like his. Do you suppose
he was it?”

Speeding on into Colfax, Kirkley con-
tacted the Toll Plaza on the San Francisco-
Oakland Bay bridge. The coupe had not
passed through there. A chec with the
Colfax police revealed that a sand colored
coupe had been serviced at a Colfax station
four hours before.

At the station, Kirkley learned that the
coupe’s driver had inquired the way to
the telephone office. He had left, apparently
to go there, while his.car was being serv-
iced. With this information, Kirkley went,
also, to the telephone office. There he asked
if a. call had been placed by anyone
answering the description given of the
driver by the filling station attendants.

TER Tm

The chief
call four hou
and the caller
no identificat
end, explaini
friends in R
to know he ¥

The nam:
Garrison. L!

Suddenly
the initials,
Kirkley’s he
L.G.... Le

Kirkley as
Lloyd Garr
operator ga
a copy of t!
it. It was t!
La Pointe .
the call had
minute, ap}
had reporté

When K
the long di
mediately,
other nam
his first r
name Eug:
had solve
E.L.G., or

“Do you
liked apric:

“Listen
quickly, *‘t
on his hon

“How a!
San Franc

“Yes, he
replied, th
number: «
Brancisco’

Kirkley
Western |
all-points

“Pick u
Gambetta
Garrison,
Armed. U

At S&:
messag'

Highway)

swering

had been
cutoff br

Marin c

the fugit

Golden

ly cont:

Golden ¢

thwarte:

that a

with a

Gambet

just a f

warning

IRK
cis

of the
them t«
courag!!

The chief toll operator remembered a
call four hours before. She had noticed it,
and the caller, she said, when he asked that
no identification be made on the receiving
end, explaining that he wanted to surprise
friends in Reno and did not want them
to know he was out of the city.

The name of the caller, she said, was
Garrison. Lloyd Garrison.

Suddenly the name, Lloyd Garrison, and
the initials, L.G., were whirling ae
Kirkley’s head. “Lloyd Garrison . . . L.G.
L.G. ... Leo Gambetta.”

Kirkley asked the operator what number
Lloyd Garriscn had called in Reno. The
operator gave it to him and he borrowed
a copy of the Reno apis eg & and checked
it. It was the number at the home of Laura
La Pointe... Thelma’s number. Moreover,
the call had been placed at almost the very
minute, apparently, that Mrs. La Pointe
had reported talking to Gambetta.

When Kirkley got Mrs. La Pointe on
the long distance wire, he asked her, im-
mediately, if Gambetta ever went by any
other nam>. Mrs. La Pointe replied that
his first name was Eugene and his full
name Eugene Leo Gambetta, and Kirkley
had solved the mystery of the initials,
E.L.G., on the brief_case.

“Do you recall,” Kirkley queried, ‘Sf he
liked apricots?”

“Listen,” Mrs. La Pointe answered,
quickly, ‘‘the big ape even ate them in bed
on his honeymoon, Thelma told me.”

“How about an address for Gambetta in
San Francisco?” Kirkley inquired.

“Yes, he had one there,” Mrs. La Pointe
replied, then gave Kirkley the name and
number. of a Turk street hotel in San
Francisco’s semi-underworld area. °

Kirkley went down thestreet to Colfax’s
Western Union office and sent out a new
all-points directive:

“Pick up Eugene Gambetta, -alias Gene
Gambetta, alias Leo Gambetta, alias Lloyd
Garrison, on sight. Wanted for murder.
Armed. Use caution.”

At Sacramento, Kirkley found a
message left for him by the State

Highway patrol at Vallejo. A car an- :

swering the description of Gambetta’s
had been seen crossing the Black Point
cutoff bridge leading from Solano into
Marin county. Such a route would take
the fugitive into San Francisco via the
Golden Gate Bridge. Kirkley immediate-
ly contacted the Toll Tower at the
Golden Gate Bridge, only to find himself
thwarted again. They informed him
that a car of that exact description,
with a driver looking very much like
Gambetta, had passed through there
just a few minutes before the all-points
warning had been received. |

IRKLEY now contacted the San Fran-
cisco police. He gave them the name

of the Turk street hotel and waited for
them to check. Half an hour later the dis-

couraging news came back . . . Gambetta

had been there, had ome to his room for
only a moment and then had driven away
in a sand colored, small coupe.

“Okay,” Kirkley told Inspector Min-
naker, who had given him the information.
“You take it until I get there.”

In the San Francisco police radio room
Minnaker dispatched 1 bulletin to all
patrol cars, describing the coupe and its
driver. Heading along Funston Boulevard
toward Golden Gate Park, Patrolmen
Richard Dwyer and Barney Rourke, in a

prowl car, picked up the bulletin, noted it, |

and continued on into the park.
They zig-zagged through the verdant

drives and ‘tree lined lanes into the long,
Westward bulge of the playground. Final
they were within sound of the Pacific's
pounding surf and then they emerged onto
the beach and turned south.

The fog was rolling in and it
blanketed the beach and the Great
Highway with its chilly folds. Rourke
and Dwyer turned: southward along
the littoral, away from the blinking
arc of low, frame buildings that was
San Francisco’s only carnival area.

On the stone colored sweep of roadway
that ran above the lowering ocean they saw
four cars, not much o fa representation for

practice which might
handy with some real

this hour when romance and its concom-
mitant ecstasies conventionally lure scores
of lovers in their cars to the area. There
was an expensive sedan, a gh hued
convertible, an ancient four door job
bulging with eager youngsters, and last,
on the far end of the beach line, a desert
sand colored coupe.: - 4
Rourke and Dwyer left their prowl car
and approached the quarry. Rourke walked
cautiously up along the. south side of the
coupe, next to the driver’s position, Dwyer
on the north. A man sat behind the wheel,
staring out at the restive sea. Even as snl
approached, the officers saw him ‘reac
into a tray in the seat beside him and pick
up a handful of apricots, to eat them.
Rourke was in the act of laying his hand
on the door when there was a sudden}
frantic movement in the car and in a flash

a thickset, swarthy man faced him, an
ugly pistol in his hand.

“Stick-up, eh?” the man snarled, ‘‘well,
by God...”

“Drop it, Gambetta,” Dwyer said’
evenly, from the other side of the car-
Eugene Leo Gambetta turned a saw
Dwyer’s pistol covering him. The gun fell
from his limp hand and his shoulders

seeps

“Police?” he said.

“You knew we were police, Gambetta,”’
Rourke said. ‘Stick ’em out.”

The handcuffs clicked over the beaten
man’s wrists. Rourke looked inside the
coupe, saw only the unfinished lug of
fruit and turned back to the prisoner.

“‘Where’s the girl?” he demanded.

“She’s here... . I brought her with me,”’
Gambetta whimpered.

“Brought her with you?” Rourke stared
at the man.

“T couldn’t leave her . . . had to bring
her,” Gambetta sobbed. ‘Back there, in
the trunk compartment .. .”

Reeling from the shock of this singular
necrophilia, Rourke took Gambetta’s keys
from the ignition switch and opened the
trunk. There, in the black interior, vaguely
outlined in the ghostly light of the rising
moon, the ps saw the body of Thelma
Rabail, thé once handsome face distorted
in terror, the beautiful, long legs bare to
the slender waist.

“Poor kid,” Gambetta said. ‘Poor kid
... 1 loved her so much [ couldn’t let any-
body have her . . . that’s why I brought her
with me...I wanted to keep her, even
like that, always...”

ACK in Nevada, under skillful ques-

tioning, Eugene Leo Gambetta told
his tale of jealousy and murderous rage.
He had found Thelma and Harrison in an
embrace in front of the La Pointe home.
He had snatched her from the man’s arms
and i her lover, then kicked him,
again and again. -

He’d forced her into his car and driven
to the edge of town. They’d argued there,
a long time. She had refused to go back to
San Francisco with him and had attempted
to leap from the car and as she had, he’d
shot her twice and she’d fallen to the
street, dead.

Then he’d driven around the. block and
returned, picked up the body and driven
Westward out of the city. Halfway to
Truckee he’d stopped, stuffed the ody
into the trunk and then went into an all
night road cafe for breakfast, after which
he’d continued on West.

“She called me a jerk,” he explained, .

“and I couldn’t stand for someone I’d
loved to call me that and I lost my head
... L suppose I’ll get the gas, just because
I loved her.”

Three months later, Gambetta’s grim
rediction came true. Murmuring, to the
ast, that he had killed because he had
loved so much, the onetime bartender and
gambler walked, pale and trembling, into
Nevada’s gas chamber and there, tears
streaming down his swarthy face, he died.

Back in his’ home town, close to which
he had judiciously remained since his
release late on the night of July 16, Tim
Harrison may have read of the end of
Eugene Leo Gambetta with mixed feelings,

the whole capped Ry that grisly thread of .

human gratitude,
of God, gol.” *

(Editor’s Note: The name Tim Harrison
used here is not a true one, but is substituted
to spare embarrassment to an innocent party.)

here, but for the grace

GAMBETTA, Eugene Leo, wh, gassed NV
(Washoe) October 18, 1949

HER LOVE GAMBLE PAID OFF IN LEAD

She played for high stakes in her Reno romance, and lost

Her distress signal was read too late

by EDWARD D. SANDERS

population of Reno, Nevada, “The

Biggest Little City in the World,”
was beginning to stir, while the large
night-life segment of gamblers, en-
tertainers, fun-seekers and tourists was
just going to sleep. The blazing sun,
climbing above the eastern desert
ranges, gave promise of another torrid
midsummer day for the mining, ranch-
ing, gaming and divorce capital on
the Truckee River. It was Friday,
July 16th, 1948, :

A few night-owl cabs still prowled
the streets, picking up weary stragglers
from the all-night cafes and casinos.
It was one of these taxi drivers, just
about ready to go off shift and rolling
slowly along West Second Street back
toward the center of town after drop-
ping off a fare, who spotted the shoes
lying in the street. It was a pair of
women’s high-heeled black Pumps, and
their shiny patent leather caught the
gleam of the morning sun.

An old shoe, or a pair of them, dis-
carded in the gutter, is not necessarily
an unusual find, nor a sight to make
a tired cabbie stop and investigate.
But the thing about these shoes was
their sparkling newness, and the fact
that they lay right out in the street,
5 or 6 feet from the curb. The driver
stopped, got out and picked them up.
The shiny black shoes were indeed al-
most brand-new, hardly worn. They

ik WAS 6:30 a.m. and the workaday

were size 6, dainty and expensive, bear- . .

ing the mark of a modish Reno women’s
shop. They were not even dusty, but
were damp, with dew.

The cabbie decided his ‘wife might

MASTER DETECTIVE,

September, 1958

be able to wear them. If they were
too small, she could give them to some-
one. But how did a new pair of ex-
pensive shoes come to be lying in the
street at daybreak? Could it be a joke
of some kind? Was someone watching,
waiting to see what the finder would
do? He looked sharply up and down
the quiet tree-lined residential block.
But there was no one in sight. The
Sedately parked cars were empty, and
blinds of the nearby houses were
drawn.

The driver was just turning back to
his cab when still another glint of sun-
light on black leather caught his eye,
on a strip of grass a short distance
down the street, near the corner of
Ralston. Warily, looking around again,
he walked over. This proved to be a
woman’s shoulder bag on a long strap,
obviously a mate to the black pumps.

The bag was heavy. The cabbie
whistled when he opened it. A dozen
or more silver dollars were scattered
among the cosmetics and other feminine
articles. Probing into the bag, the in-
trigued finder walked slowly back to
his parked cab.

At that moment a police radio car
came cruising down Ralston and
stopped at the boulevard intersection.
The hackman’s public service instinct
came to the fore. He hailed the officer
and showed him what he had found.

“No accident’ reported around here,”
the policeman said, examining the bag
and shoes. “These things aren’t scuffed
or even scratched.”

“Something funny must ‘have hap-
pened, that’s for sure,” the cabbie de-

WAL

Last, long ride for 1

clared, shaking his

might drop her bag,
lose her shoes withc
it?”

“Hard telling. C
drunk and threw the
be something else.
around here. Shov
you found these thin,

The cabman poin
spots, and together tk
gutter, curb and side:
under the parked
but they found noth:
skid-marks where a
stopped or swerved.

“Well, let’s see if -
this purse.” They ¢
motley contents out c
police car: In addit
dollars, which are cc
Reno gamblers, there
in currency in a wal)

“She'd have to be
throw that away,” thc
mented.

Identification was n
in the wallet bore the
Rabail, and an enve
address a few doors
Second.

“Well, it won’t tak
out about this. You'd
me. If there’s a rewa
Stuffing the articles
the -officer took it an

.the two men walked

dress, which was a i
ment in back of a lar
.. After some delay a
young woman wearin;

If they were
2 them to some-
ew pair of ex-
be lying in the
uld it be a joke
neone watching,
ie finder would
y up and down
ssidential block.
e in sight. The
vere empty, and
y houses were

turning back to
her glint of sun-
caught his eye,
. short distance

the corner of
ig around again,
proved to be a
on a long strap,
1e black pumps.
vy. The cabbie
ned it. A dozen
were scattered
id other feminine
the bag, the in-
slowly back to

police radio car
1 Ralston and
ard intersection.

service instinct
nailed the officer
t he had found.
ed around here,”
camining the bag
igs aren’t scuffed

must have hap-
” the cabbie de-

i y

clared, shaking his head. “A woman
might drop her. bag, but how could she
lose her shoes without knowing about
it?”

“Hard telling. Could be she was
drunk and threw them away. Or could
be something else. Let’s take a look
around here. Show me just where
you found these things.”

The cabman pointed out the two
spots, and together they: scrutinized the
gutter, curb and sidewalk. They looked
under the parked automobiles, too,
but they found nothing else, not even
skid-marks where a car might have
stopped or swerved.

“Well, let’s see if there’s any ID in
this purse.” They dumped the bag’s
motley contents out on the seat of the
police car: In addition to the silver
dollars, which are commonly used by
Reno gamblers, there was close to $50
in currency in a wallet.

“She’d have to be pretty drunk, to
throw that away,” the cab driver com-
mented.

Identification was no problem. Cards
in the wallet bore the name of Thelma
Rabail, and an envelope yielded an
address a few doors away on West
Second.

“Well, it won’t take us long to find
out about this. You’d better come with

me. If there’s a reward, it’s all yours.”
Stuffing the articles back in the bag,
the -officer took it and the shoes and
the two men walked over to the ad-
dress, which was a. trim little apart-
ment in back of a larger old house.

.. After some delay a slim, sun-tanned

young woman wearing a bathrobe, her

Last, long ride for Thelma ended when alert patrolmen spotted a wanted car and looked in the trunk to find the dead playgirl

“J was going to shoot myself, too,” stolid suspect told Insp. Murphy (r.)

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back to the scene of the crime. He
confessed all over again to Deputy
Sheriff Goss, and he was arraigned
and put in jail. They thought he
might try to take his own life, so
they took away his belt and stripped
him of everything with a sharp edge.

That included his wristwatch. On -

the inside of the diamond-studded
band they read the inscription. “To
Gene with love from Thelma—1945.”

Eugene Gambetta was tried before
Alameda County Superior Judge O.
D. Hamlin, Jr., a few months later.
He was found guilty of first-degree
murder, and sentenced to die. The
sentence was duly carried out on
Oct. 18, 1949.

Epitor’s Note: The names Lydia De

Lente, Eric Davis, Walt Berry and

Glenn Borden are fictitious as used

here, in order to protect persons in-

nocently involved in this crime from

any unnecessary embarrassment.
THE END

Bashful Lovers ~~
‘(Continued from page 23)

up his romantic efforts. He cursed out
Alice May. He would lay awake at
night with his door open a crack so
that he could watch her door. She
began having her newly found boy-
friend in during the evening and Mil-
ler would keep up an anxious vigil]
until the young man left.

Finally Miller could take no more.
Screwing up his courage, he awaited
one night until Alice May’s beau left
and then at 2 o’clock in the morning
went to the girl’s room. She was re-
luctant to let him .in at such an hour,
but finally relented when he insisted

he had something important to talk
about.

Words of love poured forth from
Miller as he begged the girl for some
show of affection. He begged her to
dump her beau, who was an ignorant
bum while he, Miller, was an intelli-
gent man. Suddenly he stopped talk-

ing. The girl was laughing at him. This
little cripple was laughing at him.
Miller went wild. He shoved her
back hard and she fell on the bed. Be-
fore the girl could cry out, he clapped

a hand over her mouth, seized a pillow ,

and held it over her face until she
went - limp.

He grabbed the girl’s panties and
stuffed them into her mouth, and the
movement caused her body to fall from
the edge of the bed to the floor.

Cunningly, he made up a story that
would implicate the victim’s boyfriend
in the crime, but things eventually
backfired and Miller was arrested. con-
victed and executed. Just before he
died he said, “It’s a funny thing, but
if I wasn’t so afraid of girls all my
life I probably wouldn’t be here now.”

The list of hen-pecked Romeos who
ended up callously killing the women
they insisted that they love is endless.
To Beth Slayton, James Benefield was
strictly a bore. She’d met him first in
Florida and he followed her around
like a moaning little lap dog hungry
for affection. She ignored him and
eventually left the state. Years later.
ironically. she ran into him in a rail-
road depot in Los Angeles. They talk-
ed and he begged her to see him
again. She agreed. then excused _ her-
self for a moment and took off.

Coincidence was to be Beth Slayton’s
undoing. Amazingly enough. in still
another «city. Denver, Colorado, Bene-
field was to run into her again. This
time the shy little man wasn’t going
to get his ego shattered again. Ripping
aside his restraint of bashfulness. he
raped and killed her in a crime the
medical examiner was to label “an
extaordinary violent murder.”

James Benefield wound up doing a
life term, the same sentence John
Crooker is serving in California. The
latter was a 34-year-old graduate col-
lege student who worked as a houseboy
for a beautiful Bel Air heiress, Norma
McCauley.

Crooker fell in love with Norma
McCauley almost from the first day he
went to work for her. But he was at a
loss to express his devotion to her in
person. So he got himself some writing
paper and wrote her burning, passion-
ate letters. When prose proved in-
adequate to fully express his longings,
he soared into poetry. The dark gold
of her Jong, shimmering hair became
sunlight breaking through a scudding
rain cloud. Her eyes became as _in-
viting as blue lagoons on a tropical
isle. She became Venus personified. The
tone of her flesh became richer than
the finest ivory.

Norma McCauley, a divorcee, re-
ceived Crooker’s writing with a form
of sympathy and affection. She was.
of course, flattered, and at the same

_—

time understanding of the shyness on

Crooker’s part. Yet at the same time
she attempted to keep a certain cool-
ness between him and herself. Many
men, after all, vied for her attention
and it was hardly likely that a love-
smitten poet could win her.

But. because she failed to rebuff
Crooker. he became more obnoxious
in his advances. She finally had to let
him go and get a new houseboy. How-
ever. the fires awakened in John Crook-
er weren't that easily extinguished..

About 4 o’clock on the afternoon of
July 4th, 1955. he slipped into the
young divarcee’s mansion and awaited

her return home, ducking into a closet
whenever he thought he heard a ser-
vant approaching. About half past 12.
he heard Norma come in and followed
her to her room. In his pocket he had
a knife he’d picked up in the kitchen.

“TI wanted to try and have a recon-
ciliation with her,” he later confessed.

Accosting Norma in her room, he
talked with her for a long time, im-
ploring her to become friendly with
him again. Suddenly he noticed that
she was asleep or at least pretending
to be asleep, on the chaise lounge.
This was Romeo’s crowning humili-
ation.

He said. “When I tried to wake her
up to continue our talks, I could not
arouse her and this incensed me. I
started to choke her and shake her with
both hands and she started to scream.

“IT put my. left hand over her mouth
to muffle her screams, and reached in
my right-hand coat pocket for the
knife. I stabbed her several times with
the knife while she tried to fight me
off. She bit my left hand. I then knot-
ted the stole she was wearing around
her neck and held it with both hands
until I was sure she was dead.”

Crooker was sentenced to death for
his crime but early in 1959 the gov-
ernor granted him executive clemency
with the provision that the love-sick
poet never be paroled.

Often the victims of bashful lovers
are not even aware of the fact that
they have some shy admirers. Such
was the case of Rosamund Burrington
of Brattleboro. Vermont. One of the
most beautiful girls in town. she was
assistant personnel manager of a local
handbag factory.

Suddenly, Rosamund began getting
strange telephone calls. At first. the
party on the other end of the line said
nothing. the girl hearing only heavy
breathing and then a click. Finally the
person on the wire began to talk, mak-
ing whispered requests for a date. He
called at all hours. When the phone
company tried to trace the calls. it
found they came from various booths
in public places.

Then the. man’s tone changed. He
made demands and threats against the

girl. filling in with vile descriptions
of what he wanted to do to Rosamund
if he ever got her.someplace alone.
Eventually. Rosamund did fall into the
mysterious caller’s hands. Her bloody
and disheveled body was found lying
at the edge of a wooded area near
her home. The killer had done all
the things to her he had threatened
to do.

But the police had a clue. Rosamund
had fought terribly for her life. She
had scratched up her killer and made
him bleed. Laboratory tests showed
the police their man had Type O
blood. The blood clue eventually led
to the girl’s slayer, 20-year-old Robert
Magoon.

A check on his background showed
that Magoon was abnormally shy with
girls. a psalm-singing choir-goer. Ma-
goon confessed the crime, which is
also typical of the bashful lover who
kills with unrivaled lust.

During the previous summer he had
applied for a job at the handbag fac-
tory and Rosamund had_ interviewed
him. From the first moment Magoon
saw the girl, he determined to have
her. Magoon was committed for psy-
chiatric examination and when found
legally sane, was sent to prison for
life. another shy lover who went sav-
age. :

They’re all the same these creeps
who blush at a girl and then kill her.

“T couldn't bear living without her.”
they invariably declare. —

The unfortunate thing is that they
seldom prove their point by putting
themselves out of their misery. Instead.
they take it out on the lovely. inno-
cent creatures who stir up their bitter

emotions of love and hate. tHE END

What Makes A Cop?

‘(continued from page 25)

romped with the kids. “Today was my
day off,” grunted one sweating patrol-
man who was allowing himself to be
used as a beast of burden by some half-
dozen screaming youngsters, “but I
wouldn’t have missed this for the
world!”

A New York press photographer
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with pickets and the police outing —
and who’d just described them to this
reporter, summed up with a shrug. “I'll
just never understand cops,” he said.
“One minute theyll be beating some
hapless bastard’s brains out, and the
next they'll be bouncing a kid on their
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out of their own pocket. It don’t add
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GAMBETTA, Leo Eugene, white, asphyxiated Nevada (Washoe) onOctober 18, 1919, —

Thelma’s bloody body lying in the San Francisco morgue.

DETECTIVE DRAGNET, Oct, 1972

by CARL BONO

Thelma Ribaill took time out —

to smile at the people gather-
ing to watch her play at the
highest-stake table in the
casino. And she was espe-
cially pleased when the high
card turned up brought out
gasps of envy from the people
watching. Several men and
women sat and drew hands
after seeing Thelma sweep a
pile of chips toward her other
winnings. In the background,
watching over all the bright
casino, her boss nodded that
he was satisfied. And Thelma
laughed as she gathered the
colorful tokens of her winnings
together. pane ae
She was a young woman with a very
attractive smile; her eyes seemed to
sparkle with fun, and her white teeth were
evenly set in a luscious mouth. In fact,
Thelma Ribaill caused quite a few eyes
to look in her direction. She was an excel-
lent lure for enticing people to stay and

take their chances at the gaming tables.
She made gambling seem so easy and

_ enjoyable. None of the money she won

actually belonged to her: The casino
employed her as a shill. Her play and
her dynamic looks were used in an act
to draw people into risking money in
games of chance.
Because of her bubbling personality
and vibrant looks Thelma was successful
at her work, but she didn’t know how

(Continued on page 38)

The Gambettas, shown in happier days.

Thelma couldn't take it anymore... the divorce
was messy... so was Thelma’s body when they
found it stuffed in q trunk.

much longer she would stay with it. If
anyone had told her a year ago that she
would be anywhere near Reno, Nevada
and gambling casinos ‘she. would have
laughed and made a joke. Though it
wasn't too surprising. Her marriage with
Eugene had been in bad shape even then.
He became livid if she smiled during a
conversation with another man. And
even her friendships with women
bothered him because they took up some
of her time. Eugene wanted to
monopolize everything she had.

He stopped her from having any advan-
tage from living in San Francisco. The
pleasure of living in a city with fine
restaurants, lovely views, anda swinging
social life was taken away because
Eugene watched her as if it was a crime
to be out of his sight for a minute.

The strange thing was that there was
no need for him to be so possessive and
green-eyed. Sure he was a few years older
than she was. But he had dark good looks,
he was in fine shape, and he was able
to take care of her in a way that might
‘lave been impossible for thousands of
ounger men. Thelma tried to assure him
uf her loyalty, of his own worth, and of
the fact that she was well satisfied with
him as a husband. It was no use.

Finally the day came when all her pati-,

ence and love for him was exhausted.
And like so many serious quarrels, it was
sparked off by something that didn’t seem
important by itself. Eugene was sulking
as they came. back from shopping.
‘‘What’s the matter honey?’’ she asked.
__““The matter! What’s the matter? How
should I feel when the one I am married
to makes eyes at every stranger?”’
Thelma turned away and put her hand
to her stomach. ‘‘What did I do this
time?”’

With a sudden movement Eugene
clamped his powerful hand on her shoul-
der. **You make yourself too nice. You
smile like the sun for the grocery man.
You make the boy who delivers the clean-
ing sound like a prince. And yesterday
I heard you on the Phone to the man who
does the gardening — ‘Thank you so
much. That’s so nice of you.’ You don’t
even speak to me like that.’’

She whirled around. ‘‘You don’t
deserve any nice talk. You’re filled with
Suspicion, and there’s no need for it. You
smoke up the whole house with misery,
instead of bringin home a smile once in
a while.’”’

Eugene tightened his grip until Thelma
twisted away in pain. He came close and
stuck his face into hers. ‘“You’re my
wife,’ he said, ‘‘and you do what I say.

ling,

If you don’t like it that way ae get your-
self one of those movie star divorces.”’

That was how Thelma started on the
way to Reno. She had a sister who lived
there, and she wrote to find out if she
could stay with her if she split up with
Eugene, at least until a divorce was final.

Lydia wrote back that she was SOITy
to hear of the couple’s quarreling. Eugene

chad seemed thoughtful and protective.

But if there was no chance of their making
up, then Thelma could certainly live with
her. The truth was that Thelma would
be welcome — her bounce and cheerful-
ness made her company something to
look forward to.

Not only was there no chance of things
getting better with Eugene and Thelma,
they were becoming unbearable. Eugene
blew up like a gas burst any time he
thought his wife was giving a moment
to any other human being. Thelma kept
her sister up-to-date about their quarre-
so Lydia was not surprised to get
a telegram with the message: TODAY
WAS LAST STRAW. WILL ARRIVE
FIRST THING TOMORROW.
THELMA.

If Lydia had any doubt that she was
right in offering her sister a place to stay,
the stories she heard convinced her she
had not made a mistake. “Of course,’

BRIVERSITY OF ALABAMA

’
ty

LUp

pa te
qe
7s
_ wr

o
ma
~~

706 «Nev.

and deliberation upon which the jury could
legally base a verdict of murder of the
first degree.

No error appearing, the judgment and

“order denying defendant’s motion for a

new trial are hereby affirmed, the petition
for modification of the judgment by reduc-
ing the degree of the crime is hereby de-
nied, and the district court is directed to
make the proper order for the carrying into
effect, by the warden of the state prison,

. of the judgment rendered.

HORSEY, C. J., and BADT, J., concur.

EATHER, J., being absent on account
of illness, the Governor commissioned Hon-
orable WM. D. HATTON, Judge of the
Fifth Judicial District, to sit in his place.

sume

‘STATE yv. MERRITT.
: No. 3547.

Supreme Court of Nevada.
Dee. 12, 1949.

Nathan L. Merritt, Jr., was convicted in
the First Judicial District Court for Church-
ill County, Clark J. Guild, J., of grand lar-
ceny, and from the judgment and an order
denying his motion for new trial, defendant
appealed.

The Supreme Court, Horsey, C.J . held
that ordering jury, in absence of defendant
and his counsel, to go to a corral to inspect
a cow on which the brand had allegedly
been altered by defendant involved the tak-
ing of evidence out of court and constituted
reversible error and the judgment and order
were reversed and the cause remanded and
a new trial ordered.

1. Criminal law C1181

If there is any other substantial error
necessitating a new trial, Supreme Court
should avoid any indication which might
influence jury in determining the sufficien-
cy of the evidence.

212 PACIFIC REPORTER, 2d SERIES

2. Criminal law 651 (1)

A “view” is permitted to enable mem-
bers of jury to see or inspect a place or
scene and inanimate objects or other things
then and there existing in order that jury
may visualize and perhaps more clearly
understand the facts involved, and such
a view is never for the purpose of evi-
dence as such, and evidence must not be per-
mitted during a view. N.C.L.1929, §§ 10921,
10989.

See Words and Phrases, Permanent

Edition, for other judicial constructions
and definitions of “View”.

3. Criminal law €=651(1), 1166%2(1)

In prosecution for larceny, ordering
jury in absence of defendant and his coun-
sel, to go to a corral to inspect a cow, on
which defendant had allegedly superim-
posed his own brand over that of owner,
was improper under statute permitting a
“view” and constituted reversible error,
since it involved the taking of evidence out
of court and deprived defendant of consti-
tutional rights of confrontation and cross-
examination. N.C.L.1929, §§ 10921, 10989;
U.S.C.A.Const. Amend. 5.

4. Criminal law €=404(1)

“Demonstrative” or “real evidence” or
“evidence by inspection” is such evidence
as is addressed directly to the senses of
court or jury without the intervention of
the testimony of witnesses, as where vari-
ous things are exhibited in open court.

See Words and Phrases, Permanent

Edition, for other judicial constructions
and definitions of “Demonstrative Evi-
dence”, “Evidence by Inspection” and
“Real Evidence”.

5. Criminal law €=404(1)

Only in a trial by court of general ju-
risdiction authorized to hear and deter-
mine criminal cases may evidence, such as
exhibition to jury of allegedly stolen cow
displaying altered brand, be introduced.
N.C.L.1929, § 10921; U.S.C.A.Const.
Amend. 5.

6. Criminal law €=636(1)

Under statute defendant and his coun-
sel must be present throughout trial of a
felony case and the presence of defendant

ee ee ee es

rege’

Ue eNO

STATE y. MERRITT Nev. 707
Cite as 212 P.2d 706

cannot be dispensed with. N.C.L.1929, §
10921.

7. Criminal law €=662(1)
Witnesses €=266
One accused of crime is entitled under
constitution to be confronted by the wit-
nesses against him and to cross-examine
them. U.S.C.A.Const. Amend. 5

Royal A. Stewart and Emile J. Gezelin,
Associate Counsel, both of Reno, for ap-
pellant.

Alan Bible, Atty. Gen., Homer Mooney
and Geo. P. Annand, Deputy Attys. Gen.,
James W. Johnson, Jr., Dist. Atty. of

Churchill County, and A. Loring Primeaux, |

Associate Counsel, of Fallon, for respond-
ent.

HORSEY, Chief Justice.

The appellant will be referred to in this
opinion as the defendant, as in the lower
court.

The defendant, Nathan L. Merritt, Jr.,
has appealed from the judgment and from
an order denying his motion for a new
trial.

The defendant,.by the verdict of the jury,
was found guilty of the crime of grand
larceny, upon the conclusion of the trial,
on the 13th day of July, 1948, in the First
Judicial District Court of the State of Ne-
vada, in and for the County of Church-
ill.

The offense upon which the defendant
was convicted is contained in count 3 of
the information, filed May 10, 1948, in
said district court, and is as follows:

“Count (3) Did then and there, wilful-
ly, unlawfully, and feloniously mark and
brand and alter and deface a mark and
brand then and there existing upon one
(1) black (white-faced) bovine cow, not
their own property nor the property of ei-
ther of them, but belonging to and being
the property of Walter L. Nygren, with
the intent thereby to prevent the identi-
fication thereof by the true owner.”

On May 25, 1948, in connection with the
arraignment before the district court, and
upon the request of the district attorney

that the charge against the defendant, Wil-
liam O. Sizemore, be dismissed or dis-
charged in order that he might be enabled
to testify for the state, such order of dis-
missal or discharge as to Sizemore was
granted.

Upon the defendant, Nathan L. Merritt,
Jr., having, as aforesaid, been convicted,
upon the completion of the trial in the dis-
trict court on the 13th day of July, 1948,
and further proceedings having been had,
including the denial of a new trial, the
said defendant was, on July 27, 1948, sen-
tenced by said court to be committed to the
state penitentiary at Carson City, Nevada,
for a period of not less than one year nor
more than fourteen years. é

The defendant’s notice of intention to
move for a new trial, upon the denial of
which, on July 27, 1948, the defendant’s
notice of appeal was predicated, contained
the following grounds:

“That the Court has misdirected the
Jury in matters of law.

“TT

“That the Court has erred in decisions
of questions of law arising during the
course of the trial.

“TIL

“That the verdict is contrary to law, and
that the verdict is contrary to the evi-
dence.

“Ty

“That new evidence has been discovered
material to the Defendant, and which he
could not, with reasonable diligence, have
discovered and procured at the trial.

“That the Jury has received evidence out
of Court other than that resulting from a
view, as provided in Section 341.”

This court is particularly concerned as
to the assignments of error stated in appel-
lant’s opening brief, and which are as fol-
lows:

“1, The Court erred in ordering the
jury to go to Kerns Corral, located near

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California Wardens Watch Gas Execution

]

NEVADA’S FIFTH KILLER executed in the lethal gas chamber at Carson City was Everett T. Mull of Morgan-
ton, N. C. Two California prison wardens and_their physicians witnessed the execution on orders of, Governor
Rolph in behalf of their state which is considering adoption of the new form of execution.

FOR DEFENDING. HIS MASTER, who had
been felled by the gun of a maniac, Omar,
wounded Pennsylvania State Police dog was
decorated recently at Harrisburg, Pa., while his
human comrades stood at salute.. The medal is
being awarded by Lieut. M. B. Bennett.

l2 , STARTLING DETECTIV)

> NS ee.

“BIRTH CONTROL _ATCH CAS EXECUTE iL

:
;

“Survey on Question Ordered,
py Church Council |
=

DRY STAND 1S EXPRESSED

Fairer Distribution of Weatlh
Also Recommended

By United Press.

INDIANAPOLIS, IND., Dec. 9.—|
A two-year study of the problem ot!
disseminating birth control informa- |
tiori Was ordered togay by the Fed-
eral Council of Churches after

adeption of a report containing a
carefully qualified reference to tte
practicé®

As originally drafted by a special
committee, the birth control state-

ment said:

“Wholesome development of chil-
dren can be expected only when Officials of other western states slumped ii min

n death fo

they are born with a normal equip- | watched thru a window as John after’ poli gas flooded the ped
ment in mind and body, to parents| Sed eee ay Bo ingy cat Pecan Other states are
who desire them or accept them! arrow points to Hall’s pond jMrhare | considering adoption of the gas
with love when they come, and who shel ond Bina Brie. Se method,

are able to provide affection, suste- INVITE U. C. STUDENTS TO BLOCK FUEL THIEVES

nance and education. | HAMILTON: Dec’ $.—An

« : , | , Dec. 9— .

The - interests of morality ane Assistant Professor of Surgery Will) nance, recommended by coal dealers
sound scientific knowledge and the} Speak at Services | hére and aimed to hamper venders
protection of both parents and chil-| ; ; |of stolen fuel, will be offered at a
dren ‘require repeal of the federal | Students of the University of Cin-| special, meeting of City Council to-
and state laws which prohibit the/cinnati’s College of Medicine have| Hight.” It provides an annual fee
communication of information about| been invited to attend the Sabbath | - ye Bey Beene to sell coal with-
gr Aor glk gpm and oth-| ye services of Youth Temple Fri- | license include shornde facilities tor

day in the Brotherhood Room of| @t least 50 tons.

Statements Deleted | Wise Center Readin |
| Wis - g-rd and N.! :
“The problems related to mater- | Crescent-av, when Dr. L. How SEEKS FUNDS FOR RELIEF
nal health as affected by child Sear-| Schrive istant f t mhg
; ; ~ is river, assistan rolessor Of sur-|
ing, and the whole subject of the) gery at U. C., wail aenane I neta Tt the Gibson -Elotel "Weds ae
spacing of children and limitation; Morris Lieberman. of Hebrew,day night by employes of th Balti-
of the size of families, which has} Union College will read’ the services| more & Ohio R. R., in an ft t to
unfortunately become involved in| which start at 8 p,m. Miss Phyllis | raise money: for former pent ed ot
acrimonious controversy, should be|Kasle of the Cincinnati Conserva-|the railroad at the ere st

re-examined dispassionately from/|tory of Music has arranged a spe-| terminal. Food and clothing will!

their children.”
The convention accepted the re-| O O
port after deleting the reference to!

repeal of birth control laws and |
re-examination of “problems related |
to maternal health.”

The Executive Committee was or-|
dered to study the questions further
and report to the next convention
two years hence:

Delegates Differ in Views
Delegates differed widely
* 7 Oo Th .

Hall, Joon, white, gassed Nev, (Clark) 11/28/1932,

(aka Everett Mull)

By HUGH LAYNE

eri MELIGAS

Calendar of News Events
(October 20th to November 20th)

Prisoners Flee Devil’s Island
OCTOBER 20

TUCSON, Aritzona—George Beam, on trial
for the slaying of Thomas Solomon, his wife’s
lover, was found guilty of second-degree murder
here today. Sentence, which can be from ten
years to life imprisonment, will be imposed on
October 25th. Solomon was shot in his room at
a local hospital after Mrs. Beam had confessed

SON CITY, Nevapa—The State of

Nevada set the stage here today for the fifth
gas execution in its history. John Hall, sen-
tenced to die for the murder of his bootlegging
partner, Jack O’Brien, and the wounding of
O’Brien’s wife and daughter was denied a re-
hearing by the Supreme Court. Nevada is the
only commonwealth employing this form of

legal execution.

INOV.

NEW YORK, N. Y.—Secret Service agents have broken up
a counterfeiting ring which had put into circulation between
$2,000,000 and $3,000,000 in counterfeit $10 bills it became
known here today. Before the hogus bills started to make their
appearance, the officers interviewed one Harry Mills, a free-
hand engraver. Although they released Mills, they retained
one of his engraved calling cards. When the counterfeit bills
came into circulation Secret Service men compared the en-
graving on the calling card with that of the fake bills. They
learned that the individual characteristics shown on the Mills
calling card were identical with those on the counterfeit money.
As a result Mills was picked up, made a 32-page confession and
five prisoners including one woman have been apprehended.

OCTOBER 21

KINGSTON, Onranto—New rioting broke
out at Portsmouth Penitentiary yesterday after-
noon while an inquiry was being made into
earlier riots of this week. Acting Warden Gil-
bert Smith denied the reports current that forty
prison guards were being held as hostages by
the rebellious convicts. Convicts were reported
to have seized the dining hall, kitchen, and
power plant and planned to throw thé*entire
area into darkness: as night fell. 4

JACKSONVILLE, Friorma—Mrs. Sallie
Geringer, 38, and her daughter Ola Bell Gil-
strap, 20, told officials a story of abduction from
their homes and a flogging in near-by woods and
caused the arrest of five men here yesterday.
The women charge the men with assault to
murder. Mrs. Geringer and her daughter by a
former marriage showed cuts and bruises on their
bodies which they said were the ‘result of a
flogging with straps after the men charged them

2— Mrs.
Downs, repudiated con-
fession that charged hus-
band withmurder, charge
with murder herself

NOV. 3-—Arthur Barry,

vindicated of implication

in Lindbergh kidnapping
by Jafsie

Wife-Striker Faces Murder Charges

with selling liquor and forced them to vacate
their home.

MUSKOGEE, Oxtanoma—The defense pro-
duced a purported suicide note by the first
wife of Rev. 8. A. Berrie, charged by the state
with poisoning his 50-year-old wife here today.
The note was signed “Fannie” and was iden-
tified by several witnesses, some of whom
claimed that the handwriting appeared to be
that of the victim, Mrs. Fannie Berrie. Rev-
erend Berrie married a 19-year-old Sunday
Schocl teacher shortly after his wife’s death.

oe
OCTOBER 24

WILLEMSTAD, Curacao—Seven men, in-
cluding five Frenchmen, a Spaniard, and an
Italian who had apparently escaped from the
l’rench penal colony of Devil’s Island arrived here Saturday in
great distress after having made the 1,500 mile trip in a sailing
canoe. Devil’s Island is one of the Isles du Salut off the coast
of French Guiana. Escape from the prison is considered al-
most impossible as those who flee by land perish in the jungle
and those who try for freedom by sea are usually drowned.

NEW YORK, N. Y.—Arthur Barry, considered by many to
be America’s most dangerous criminal, and who escaped from
Auburn Prison during’ the July, 1929, prison-break, was re-
captured Saturday at a farmhouse hideout near Sparta, N. J.
Barry’s name has been linked with the Lindbergh kidnapping.

SEATTLE, Wasutncton—The body of Colonel William M.
Inglis, 58-year-old World War veteran prominent in Republican
state politics, was found sprawled across a bed here last night
with a bullet wound in his head. A woman who claimed to be
the dead man’s wife declared that he had shot
her and then taken his own life. She said
he was “dissatisfied with life.”

GADSDEN, AtaBama—The dead bodies of

erend W. L. Groober, a Methodist minister, and
Tom Russell, 40, a married man with three chil-
dren, were found in a field near here today. A
gun used to kill Russell and beat Miss Russell to
death was found near by.

NEWARK, N. J.—Anna Kleinhandler, 8-
year-old girl who was kidnapped last night was
in the City Hospital here today recovering
from several knife wounds inflicted by her ad-
ductor. She identified Samuel Morris, a
Mohammedan, as the man who kidnapped her,
took her to a lonely spot at the foot of the
Watchung Mountains and choked her until she
lost. consciousness. After the girl had been
abandoned by the (Continued on page 69)

Arce (oMehine. Mg ilerees) Leb,

Miss Velma Groober, 20, daughter of the Rev-.

rn on tr Seen com aoe
Soa a ES

Example For The Nation: |
Nevada’s Execution of Gee Jon

by Loren B. Chan

ON THE EVENING of August 27, 1921, Tom Quong Kee, a seventy-four year
Gee Jon. 7 old Chinese laundryman and nominal member of the Bing Kung Tong, was
(Courtesy: Nevada State Prison) oe awakened by someone knocking on the rear door of his cabin in the little mining

. . town of Mina, Nevada, located about 175 miles south of Reno. Clad in pajamas —
and a jacket and holding a lighted candle in one hand, the old man groped his
way to the door. When he opened it,. he was confronted by two other Chinese,
one standing in front of another. The man standing in back pulled out a .38
caliber Colt revolver, and promptly fired two shots at Tom over the shoulder of
his confederate. The bullets went into and through the old laundryman’s heart. ‘

It was a brutal and senseless killing, but a part of the overall pattern of tong
warfare then plaguing some segments of the Chinese-American community in
California.2 The violence spread to areas in the neighboring state, since most
towns in western Nevada were economically and socially tied to = cities oe
northern California.

In 1921, the Chinese sections of many northern California towns and cities

were afflicted by feuding tongs. The fighting:in San Francisco supposedly

- started because a member ofthe Hop Sing Torig stole a Chinese slave girl

belonging to a member of the opposing Suey Sing Tong. To avenge the
injustice suffered by one of its members at the hand of a member of an opposing
tong, the at Sing council, supported by an ally, the Bing Kung Tong,
declared **war’’ on the Hop Sings. The signal was even for the corhmencement
of ten mmole of tit- for-tat violence.*

Loren B. Chan received his Ph.D. from the University of California, Los Angeles. He is an
x , assistant professor of history at San Jose State University, and the author of Sagebrush Statesman:
Hughie Sing ; | - Tasker L. Oddie of Nevada, published in 1973 by the University of Nevada Press.

N EVADA HISTORICAL SOCIETY QUARTERLY, ae No. 2 (Summer, 1975)

92 7 ' Nevada Historical Society Quarterly .

Just a few hours after Tom Quong Kee was slain at Mina, Nevada, Chinese
opera performer Leong Quie Sang was shot twice in the head while preparing a
late evening snack in the kitchen of his.San Francisco apartment.* Wherever
there were tong members, the violence was bound to spread. By the end of
August 1921, even smaller towns like Watsonville and Marysville were af-
fected.® In Fresno, Gee Sing received.a bullet wound in his right ear after a tong
assailant fired three shots at him with a-.32 caliber pistol. To the north in
Oakland, Woo Wai, a prosperous San Francisco herbalist, was stopped on a
street corner by two men in a large automobile. Two shots rang out, the first of
which struck and killed him.” There were probably other murders which went

-- unnoticed and unrecorded. .

In Nevada, however, the killing of Tom Quong Kee was the big news. On
Sunday morning, August 28, 1921, a Chinese vegetable peddler went looking
for Tom. Peering through one of the windows of Tom’s cabin, he saw his
friend’s body sprawled on the floor. He notified the justice of the peace in Mina,
L. E. Cornelius, who in turn called the situation to the attention of deputy
sheriff W. J. Hammill.’ The deputy examined the body and scene of the crime,
and traced the footprints of two persons from the cabin to a spot where there were
automobile tire tracks arid some empty beer bottles. _

Only eight to ten days before, Hammill saw two Chinese strangers in Mina at

_ the Palace Cafe, men who were supposedly looking for work. At that time, the

deputy was warned that the pair were not unemployed and innocent, but were
tong members sent from Reno to Mina to kill the aged Tom. Because of his
suspicions, Hammill telephoned Reno police chief John M. Kirkley to be on the
lookout for a car bearing two Chinese ‘male suspects. The men were ap-
prehended.®

Physically, twenty-nine year old Gee Jon and nineteen-year old Hughie Sing
did not seem intimidating. China-born Gee stood 5 feet, 5% inches, and
weighed 129 pounds. Hughie, who was born in Carson City, measured only 5
feet, 2% inches tall, and tipped the scale at a modest 105 pounds.'® Gee
emigrated from Canton, China around 1907 or 1908. Except for a brief stay of

- two to three months in Stockton’s Chinatown, he lived his entire life in the

United States within the confines of San Francisco’s Chinatown. Hence he had
difficulty in understanding and speaking English.’ Hughie Sing, on the other
land, attended grammar school in Carson City, and could speak, read, and write
both English and Chinese.!? He had been a member of the Hop Sing Tong for
only two months prior to being enlisted as Gee’s partner in crime.’

After their arrest, both suspects were interrogated by the Reno police. Chief
Kirkley advised Hughie that anything he said could be used against him in
court, and that it would be best for him to tell the truth. '* Thinking that he might
be set free immediately if he cooperated with the authorities, Hughie confessed
his role in the crime and also implicated Gee.'* Both Gee and Hughie were sent
back to Mina, where they were held without bail until a preliminary hearing was
held on September 8, 1921. W. H. Chang of San Francisco, most likely a Hop
Sing Tong member, secured the services of Reno attorney James M. Frame as
defense counsel.'®

Dipset le ies daa we SSeS

Receipt issued by Hop Sing Ton headquarters in San Francisco made out
to Gee Jon (alias Gee Gar Hue), dated May 21, 1921. It was in Gee's
possession at the time of his arrest.

(Courtesy: Nevada Supreme Court)

Nevada Historical Society Quarterly

IN THE SEVENTE JUDICIAL DISTRICT COURT OF TRE STATE OF NEVADA
MINERAL COUNTY. ;

FPR EREE RETEST EES

4
¢ -*
(SPATE OF NEVADA, :
: Plaintiff,
" VERDICT
a
#

he ohne he totes

We, tre! jury, find the defendantg, Gee Jon and

fughie Ging, euilty of rurder of the first degree, and fix the -
penalty at death.

Dated Dec. 3 1922.
a oreman,

Verdict of the jury.

sas 4 ey: Mineral County District Court)

. STATE OF WEVEDA

" .
Plaintiff C RETURN ON WARRANT OB EXECUTION

GEE son ‘ (

Defendant . f

STATE OF NEVADA (
ss
COUNTY OF ORUSBY (_

I, Denver 8. Dickerson, the duly appointed, qualified

end adting arden ‘of the Nevada State Prison, HEREBY CERTIFY that

all things commanded by the attached WARRANT OF EXECUTION were by

me executed in the manner prescribed thereinsand that on the eighth .
day of February , A. D. 1924, between the hours of Nine and ten

o'clock A. M. of said day lethal gas wae administered to Gee Jon,

the above named defendant, in sufficient quantities to produce death,
and that at 12:40 o'clock P.M. of said day the said Gee Jon, defendant,

was, by the examining physicians duly pronounced dead.

IN WITWESS “HEREOF I have hereunto set
my hand and seal this [5th day of February

A.D. 1924,
Lh A Sitios

WARDEN OF NEVADA STATE PRISON.

Warden Denver S. Dickerson’s certification of Gee Jon's
execution by lethal gas.

(Courtesy Mineral County District Court)

Example For The Nation et 95

On the advice of counsel, Hughie repudiated his oral confession. !? Both Gee
and Hughie waived the right to make a statement at the September 8 hearing.

_ Their counsel entered pleas of ‘‘not guilty’’ for each of them.'®

’ Trial was held in Hawthorne from November 28 to December 3, 1921 before
the Seventh Judicial District Court for Mineral County, Nevada. Both men

denied being members of the Hop Sing Tong, shooting Tom, Quong Kee; or

going to Mina with the intention of killing him. They claimed to be on their way
to Tonopah, where they wanted to obtain employment in a restaurant. '® Hughie *
also said that he confessed to the Reno police chief in the belief that he would be
immediately freed.?° -

_ The court was not convinced. According to prior testimony of witnesses and
law enforcement officials, the two accused Chinese were in Mina eight to ten

_days before the killing. At that time they looked over the town, and observed
_ their intended victim. Previously, Hughie had lived with Tom in Mina for two

years; such experience and his knowledge of English made him the best person
to guide Gee Jon on his murderous mission.”

Prior to 1921, criminals sentenced to death in Nevada were ‘exceed ina
variety of ways. Before 1905, most of the condemned were put to death by
county officials; hence from 1866 to 1913, only ten men were executed at the
state prison.?4 Moreover, methods of execution were variable. Up until January
1, 1912, hanging was the most common mode of execution; from 1912 to 1921,,.
a condemned person could choose between a rope or a firing squad.?°

_ was believed to be the most humane way to end life, especially if it were to be |

administered while the condemned person was under the influence of a sd
drug. Little pain would be felt in passing from life to death.?’
Hart and Bartlett introduced their Assembly Bill 230 on March 8, 1921. It was

favorably reported out of committee, and passed the lower house by a vote of

thirty to one in favor on March 15. The Senate received the bill later that same
day, and quickly approved the measure by a vote of fourteen to one.”® On March
28, Governor Emmet D. Boyle signed the bill, which stated that ‘*The judgment
of death shall be inflicted by the administration of lethal gas. . . .”’?? Thus
Nevada became the first state in the country to permit the use of poisonous gas in
legally ending human life.*°

The new statute was to be implemented for the first time in the case of Gee Jon
and Hughie Sing. Only adroit legal maneuvering and persuasive argumentation

a . ‘Nevada. Historical Society Quarterly

could possibly save the pair. They were ably represented by attorney James M.
Frame. After Judge Walsh pronounced death sentences on the two Chinese,
Frame moved for a new.trial. Walsh denied the motion, : and Frame was ready to
appeal to the state supreme court.?!

After their trial at Hawthorne, Gee and. Hughie were taken under the custody .

of Sheriff Frederick B. Balzar to the state prison in Carson City, where they were
to. be incarcerated until their sentences were carried out.*? Hughie was confi-
dent, but also prepared for the worst:

I don’t think there’s-no hope, unless maybe the supreme court does

something. Our lawyer said he’d file something in the supreme court
within thirty days, but if the court don’t act I guess we’ ll have to die.3?

During the latter part of February 1922, Frame filed an appeal with the state :
supreme court, contending that execution by lethal gas constituted cruel and -

unusual punishment. The appeal automatically served as a stay of execution for

. the two men, who originally had been ordered executed between April 16—22,

1922.°4 The first of a long series of legal maneuvers started.

Undaunted, attorney Frame filed another appeal to the state supreme court for

a rehearing of the Gee and Hughie case. The court reacted unfavorably.26 Frame

. and his partner, Fiore Raffetto, then decided to apply for a writ of certiorari in
the U.S. Circuit Court of Appeals in San Francisco. They stressed the refusal of »
Nevada's highest state court to grant Gee and Hughie separate trials, the cruel _

and unusual nature of lethal gas execution, and the defective wording of the title
of Nevada’s 1921 capital punishment statute.?7

‘Nothing much happened as a result of the action, however, for the Nevada
Supreme Court refused to give its assent to be sued on the writ. Thereafter, the
attorneys for the Chinese petitioned the state supreme court a second time for a
rehearing; and again, the court ruled in the negative. According to the court’s
procedures, second petitions for rehearings were not allowed. In addition,
defense counsel wanted to argue the case on new grounds beyond those con-
tained in the first petition. Therefore denial of the second petition was certainly
justified. #8

By the first part of September 1923, the U.S. Supreme Court seemed to be the

court of last resort. Attorneys Frame and Raffetto applied to the state supreme
court for a writ of error, 6 that the case of Gee and Hughie could be carried to the
nation’s highest tribunal. On behalf of the state court, Chief Justice Edward A.
Ducker denied the application for the writ.*® The judicial road, however, was
not completely blocked. If one of the justices on the U.S. Supreme Court was
willing to hear a petition for a writ of error, then he and his fellow justices could
hear the case even with the prejudice of the Nevada Supreme Court's refusal to
grant a writ of error.'® A petition for a writ of error was first presented to
Associate Justice Joseph McKenna, and then to Chief Justice William Howard

Example For The Nation. _ — 97

Taft. Both members of the highest court refused to permit the petition to be.

’ filed.4! Thereafter, Frame and Raffetto could only direct any further efforts to

spare the lives of their clients toward state officials. ;
In January of 1924, the two attorneys tried to persuade the state supreme court -
to allow a petition for a writ of prohibition to be filed, whereby District Judge
Walsh would be restrained from setting a date for the execution of Gee and
Hughie. The title of the execution law, according to Frame and Raffetto, did not
specifically cover the subject of lethal gas execution. If the law was invalid for
that reason, an execution date could not be set until the title of the law was

_ changed. The ‘court considered the title of the law valid and sufficient, and |
_ denied the petition.+? By mid-January, most of the legal avenues of appeal were

exhausted. About the last group that might be approached was the state board of
pardons, consisting of the governor, the three state supreme court justices, and
the attorney general.**

Believing that the board would’ ™ swayed by the nature of public opinion,
Frame and Raffetto started to circulate petitions in various parts of the state: four
in Reno, one in Carson City, and one in southern Nevada.*? The petitions,
addressed to the boatd of pardons, declared:

The undersigned respectfully petition your honorable body to commute
the sentence of Gee Jon and Hughie Sing, Chinese, from death to life
imprisonment.

We are informed that Hughie Sing i is a mere boy, being only nineteen
years of age at.the time of the commission of the crime, and-that Gee
Jon was at the time of the commission of the crime an illiterate Chinese
unacquainted with American customs and not likely to fully know and
appreciate the enormity of the act.

In addition, the two lawyers sent more than four hundred letters to prominent

Nevadans, imploring them to intercede with the board on behalf of Gee and
Hughie. *®

Frame and Raffetto became engrossed in trying to save the two Chinese. They
dropped all of their other case work to concentrate on Gee and Hughie.*’ Time
indeed was running short. Judge Walsh set February 8, 1924 as the date of
execution.4® The board of pardons would meet on January 25.49

- petitions circulated, about five hundred signatures were obtained. Petitions were

On the other hand, those most familiar with the actual crime committed by

——

i einer apteaneencre N
“ ett na es *

590 242 PACIFIC

ated over any class of highways, or only
those who operated over first-class highways,

It is stated in State v. Partlow, 91 N. ©.
550, 49 Am. Rep. 652, that, “if no judicial
certainty can be settled upon as to the mean-
ing of a statute,” the courts are not at
liberty to supply one. It “must be capable of
construction and interpretation; otherwise,
it will be inoperative and void.”

Since I have been unable to place any in-
terpretation or construction upon the act in
question from which a judicial certainty can
be determined upon as to the meaning of the
statute, or the intent of the Legislature,
therefore, in the light of the above rule, I
feel that I am compelled to conclude that the
statute is void, and, in so doing, I am very
mindful of the rule that it is the duty of
courts, if reasonably possible, to so construe
a statute as to give it effect.

With reference to the other grounds urged
by petitioner, upon which he declares the
statute to be unconstitutional and void, I
am inclined to agree with my associates as
to their reasoning and conclusions.

In view of the reasons asserted above, Iam
of the opinion that petitioner should be dis-
charged.

STATE v. JUKICH. (No. 2702.) _
(Supreme Court of Nevada. Jan. 12, 1926.)

1. Homicide @=253(1)—Evidence held to sup-
port conviction of murder in first degree.
Ividence held sufficient to support convic-
tion of murder in first degree.

2. Homicide @=2>270—Whether accused’s testi-
mony that he was so intoxicated as to be un-
conscious of what he was doing was true held
fact for jury.

In prosecution. for murder, whether ac-
cused’s testimony that he was so intoxicated
as to be unconscious of what he was doing was
true was question for jury.

3. Criminal law @==920—New trial should not
be granted for incompetency or neglect of
accused's counsel, unless accused is preju-
diced and deprived of fair trial.

New trial should not be ordered by appellate
court because of incompetency or neglect of
accused's counsel, unless it is such that accused
was prejudiced and thereby deprived of fair
trial.

4, Criminal law @==1186(5)—Failure of ac-
cused’s counsel to move for change of venue
held not such incompetency or neglect as
warrants reversal of conviction. ;

In prosecution for murder, failure’ of coun-
sel to move for change of venue held not such

REPORTER (Nev.

5. Criminal law Q==1186(5)—Examination of
juror on voir dire held not to disclose. such
negligence and incompetence of counsel as
to require reversal.

Examination of jurors on voir dire by coun-
sel for defendant in murder trial held not to
show such negligence and incompetence of
counsel as to warrant reversal of conviction.

6. Criminal law @=>1186(5)—Failure of ac-
cused’s counsel to object to immaterial evi-
dence held not to show such incompetency
as would warrant reversal of conviction.

In prosecution for murder, failure of ac-
cused’s attorney to object to admission of im-
material evidence held not to indicate such neg-
lect and incompetency as would warrant re-
versal of conviction. ‘

7. Criminal law G=-1186(5)—Failure of ac-
cused’s counsel to examine nine year old wit-
ness for state as to competency held not such
neglect and incompetency as would warrant
reversal of conviction.

In prosecution for murder, failure of ac-
cused’s counsel to examine child witness as lo
her competency, in view of her testimony, held
not to show such neglect and incompetency by
accused's counsel as would warrant reversal
of conviction, since court is primarily charged
with duty of determining competency in such
cases.

8. Criminal law G=>1144(12)—On appeal it will
be presumed that court found child witness
competent.

On appeal it will be presumed that court
was convinced that child witness was com-
petent.

9. Criminal law 6=-1186(5)—Testimony show-
ing motive elicited from accused by his at-
torney held not to show such incompetency
as to warrant reversal of conviction.

In prosecution for murder, testimony of
accused elicited by his counsel, although harm-
ful, as disclosing motive, in view of fact that
state had introduced accused's statements to
same effect, was not prejudicial, and did not
show such ineompetency of accused's counsel
as would warrant reversal of conviction.

10. Criminal law @=-1186(5)—Fact that ac-
cused's counsel defended on ground of ex-
treme drunkenness and lack of intent held
not to show such incompetency as to warrant
reversal of conviction.

In prosecution for murder, fact that ac-
cused’s counsel defended on wrong theory of
extreme drunkenness and lack of intent, in ab-
sence of showing that accused had any other
defense, was not such incompetency as to war-
rant reversal of conviction.

{{. Criminal law 6=>1036(1)—In absence of ob-
joctions, errors in admitting evidence are not
reviewable even in capital cases.

The rule that errors in admission of im-
proper evidence are not reviewable unless ob-

negligence. and incompetency as warrants re-
versal of conviction.

jected to on trial applies to capital cases.

@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ne ——
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JUKICH, Stanko, white, asphyx., Nev. (White Plains) 5-21-1926,

"NEVADA KILLER INHALES DEATH FUMES WITH JOKING FAREWELL. Carson City,
Nev., May 22, 1926-(AP)With 9» smile snd cheerful ereetines for those
assembled to witness his execution, Stanko Jukich, age, 23, Serbian
miner, went to his death in Nevade'ts lethal cas chamber at the State
Prison here. 'Good-by, boys, I have not lost my nerve,' he flung at
newspaper men and prison officials as he entered the concrete death
vault. ‘I'll save a ovlace for you there.' Juktich was executed for the
murder of Jennie Madek, age 16, of Ruth, Nev., whom he killed when she

refused go go through with a marriage pact arranged by her parents,
Guards strapped Jukich to the chair which had been built to accommodate

his large form, He waved to the watchers outside the little barred
window his chair faced, and called 'good-by, girlie! to a woman re-
porter among the witnesses. Then the heavy door, which sealed the cell
hermetically was closed fast. A guard turned a valve sending a spray
of the deadly hydrocyvanic gas into the cell. Jukich anpeared startled,
watchers say, then he took a deep breath of the lethsl fumes and ten
seconds later sank into 9 coma. Four slight nods of his head were no-
ticed and then doctors said he was dead. Two and a half minutes were
taken for the execution. Doctors said Jukich dropped off into the
sleep of death painlessly and without relaization of what was hannen-
ing. John H. Randolph, scheduled to occunie 9 second chair in the death
chamber, receivedsa life sentence in the venitentiarv instead.” Unnamed
newspaver, possibly from Indiansavolis, Ind., sent by Van Raalte. dtd,
May 22, 1926.

"NEVADA FORFEITS LIFE OF SLAVER: STANKO JUKICH EXECUTED BV LETHAL GAS
FOR MURDER OF SWEETHEART: State Prison, Carson City, Nev., May 21-
(AP)-Nevadsa forfteited the life of 2 murderer today by lethal cas ~-
this commonwealth's form of canitel punishment. Stanko Jukich, 28
years old, conver miner of Ruth, Nev., was the man who paid the ex-
treme penalty. The lew demanded his death for the slaying last

year of Jennie Madek, his 16-year-old wweetheart, She had refused to
carry out a marriage pact arranged between Jukich, herself and her
perents. The spark of life vanished quickly from the body of the
condemned man, Four nods of the head, stretched over a period of two
and one-half minutes, told a graphis story of the effectiveness of the

STAR, May 22, 1926. Sent by Van “aalte.

RECORD

on a, lh ane of ik ee Lae ns NS Mee iain ena. Oh wg

Cue wW//3. Be thd wont Z Mader Moves Alone Chow Lereval Katee .
BE iene Cauro ¥ Zhe We, te Ha GLned S LAL lode?

Wr. Micka Geer bbad Lari A Llred2g) ea bie aa? # Pee,
Ahi Lhe hoof hss Fixed th ghee! by ld aah A Gh Gtrn—
Loe LoleT fore, eae: Saas ee us b hina oda

Que tid ducsrin diced ' ya PROM OOO Si Oe AB Ga

TRIAL

APPEALS

Avthex. Aste. Dele! ke had 2 howe Lo bint, aid: Teve houwe ww an auld Long

Pome a

unanimous verdict: “On or about
February 7, 1938, Mrs. Jennie B. Por-
ter met death from a bullet wound
caused by a rifle in the hands of some
party unknown...”

Back in Laporte, Corporal Santee,
with the assistance of Trooper Kisner,
quizzed Hipple for hours without re-
sult. The stoic youth assumed a de-
fiant attitude. He was cool, and took
his time answering questions.

For the next two days incessant
questioning by the officers proved of
no avail. The case against Hipple
had reached a blank wall. The youth
repeatedly denied that he had entered
the Porter house or had anything to
do with the death of Mrs. Porter. It
did not appear that Hipple intended
to alter his testimony and Santee and
Kisner were reluctant to bring the
case to court without something more
conclusive than the circumstantial
evidence that had been amassed.

A milk check for $11.38 indorsed
by Mrs. Porter and countersigned by
Hipple, which Porter claimed his wife
had never received; Hipple’s tracks
leading to the Porter farm; evidence
that he had carried a .22 rifle on the
day of the murder, and a badly bat-
tered .22 long bullet, recovered from
the victim’s brain, were the clues
Santee and Kisner puzzled over.

Hipple claimed he had borrowed the
.22 rifle for beaver hunting, his other
rifle being too powerful for that pur-
pose. He denied any knowledge of the
check. No blood-stained clothing was
found on him or at his home. He
didn’t have any money and that, in
itself, was strange, for, knowing the
Porters since childhood, surely, if he
were the murderer, he would have
found the victim’s money. Hipple

ave every appearance of innocence.

o one had seen him commit: the
crime, and the bullet was so badly
mushroomed that it was doubtful if
the ballistics expert could identify the
rifling and striations.

DETECTIVE

Chinese restaurant owner kept a pack
of dogs in a kennel in the rear yard
of a rooming house. Excited by the
commotion, they leaped over the wire
fence, entered the alley and got be-
tween the fugitive and his pursuer.

Though Mrs. Courtney was un--.
afraid of the killer, she quailed in
terror at the sight of the dogs. She
turned back and the retreating gun-
man’s footsteps died away in the dis- ,
tance. By the time Marshal Henry

CRIME DETECTIVE

Then Charlie Shadduck came into
the spotlight again. He had received
a threatening note which read: “If
you don’t keep your nose outa this it
will be too bad fer you.”

Again the officers were thrown into
the quagmire of doubt. Could the
Hipple boy be innocent? Was the
murderer still abroad? Perhaps it was
the work of some madman—this
Mountain Ghost, the mountaineers
were whispering about.

Finally, on February 16, 1938, San-
tee exclaimed to Kisner: “I’m about
done, Howard. The knots in this case
seem to be getting smaller and
tighter, and my hands larger and
clumsier.” The two troopers appeared
to have reached the limit in their
investigation.

Suddenly, a look of hopeful con-
templation beamed on the face of
Santee. “The lie detector! Why didn’t
we think of that before?”

Later, the same day, Hipple was led
from his cell in the county jail and
escorted to the judges’ chambers in
the same building.

Santee carried an instrument with
rubber tube attachments and placed
it on the table. He pointed out the
various workings on the machine and
explained to the inquisitive Hipple, if
he told a lie his respiration and blood
pressure would cause the straight line
on moving graph paper to be brok-
en up.
“Okay. Put the thing on me,” con-
sented Hipple. “I didn’t do no mur-
ee kg no machine can make me say

i ie

As Santee adjusted one rubber tube
around Hipple’s chest and another
around his arm, he informed the
curious lad that. he could lie to them
but not to the machine. Hipple
sneered.

Slowly and logically, the two troop-
ers questioned the youth. As the
machine inexorably proved that Hip-
ple was lying, Santee and Kisner

CRIME Hairgarere

CONTINUED FROM PAGE 25

Since the identity of the assassin was
unknown, it would be necessary first
to round up clues.

Sheriff Orrock organized several
posses to stand guard on the hills sur-
rounding the town so there would be
no possible chance for the killer to
escape. Then he began a search for
clues. He was assisted in this quest
by District Attorney John Bonner.

In front of Sewell’s store they made
an unexpected discovery: One of the

Marriott and Sheriff J. E. Orrock ar- ‘slugs from the killer’s gun. Evidently

rived, a few minutes later, he had
disappeared.

The two officers threw their depu-
ties around the block and rushed the
alley from both ends. But they came
out empty-handed.

Sheriff Orrock threw a dragnet
over the town, blocking the four roads
leading to Eureka, McGill, Tonopah
and Caliente.

“We've got the killer bottled up,”
he told Marshal Marriott. “Now our
job is to dig him out.”

It wasn’t going to be an easy task.

‘it had passed clear through the vic-

. tim’s body, for it was blood-stained.

‘It was fired from a .32 caliber
pistol,” Orrock said as he examined it.
‘Then they made another discovery
which clinched their belief that the
slug had come from the murderer’s
gun. Near the alley they found five
shells, four of .which had been dis-
charged. They were .32-20’s.

“Evidently he emptied and reloaded
his gun as he fled,’ commented the
District Attorney.

“That little mistake is going to send

103

showed him the results of the detector
test.

“The machine says you lied, Ernie.”

“Yes, you might as well come clean
and confess. We've got more than
enough to convict you.”

The scene which followed amazed
the officers. .

Hipple slumped in his chair. His
face twisted. Sobs tore from his
throat. He hid his face in his hands
and his iron nerve seemed to have
vanished completely as he sobbed: “I
did it. I killed her.”

Again, Science had triumphed over
Crime!

Two hours later, from the confines
of his. cell in the County Jail at La-
porte, Hipple made full confession.
With his composure regained, he
stated:

“T ran back to the Porters’. The
door was locked but when I knocked
she opened it and said, ‘Oh, it’s you.’

She sat down and started to finish |

eating. I sat on a chair in front of
the feed bags. I sat there a few min-
utes. Everything seemed to blur a
few minutes and then I shot her. She
fell off the chair sideways toward the
back. Then I drug her in the bedroom
by the feet. Then I got scared and
left. I figured I’d have to shoot her
for her money, but I didn’t reckon on
all that blood .. .” :

On May 28, 1938, Ernest M. Hipple
stood before Judge Edward B. Farr
and was sentenced to pay the full
penalty, death, for his unwarranted
and terrible crime.

Today, high in the mountain fast-
ness of Pennsylvania, in a little
burial plot, is the grave of Jennie B.
Porter, kindly keeper of the cats. A
few feet distant is the unmarked,
weed-covered grave of the erring
youth who learned, too late, that
when a man raises his hand and
brings it down in murder, he starts
the machinery of the Law which in-
evitably brings about his own doom.

him to his death,” Orrock said grimly.

They immediately rounded up eye-
witnesses. Their accounts, as Orrock
expected, were conflicting.

“I saw Frances standing there in
the cold, looking up and down the
street as if she was waiting for some-
one,” Mrs. John Caselli told the offi-
cers. “Then this man came up and
» grabbed hold of her. I didn’t pay
much attention until he pulled out
his gun and started shooting.”

“You never saw the man before?”
asked Orrock.

“Not that I recall.”

She described the killer as large
and wearing dark overcoat and hat.

“Do you think Mrs. Jones recog-
nized him?” asked the District At-
torney.

“There was nothing in her manner,”
said Mrs. Caselli, “to suggest she did.”

“Did you hear her call out a name?”

“No. The only thing I heard was
her screams as he started firing.”

Bustamante, the paperhanger, said
he was quite sure he had seen the man

104

around town. But other witnesses

were equally certain they had never °

seen him before.

HAT motive was behind the kill-

ing? Was the victim waiting for
the man who shot her, or for some-
one else?

Hoping to find an answer to these
questions, Orrock and Bonner went
to the mortuary where the body had
been taken at the direction of Coro-
ner L. C. Branson.

They searched the dead woman’s
purse, but found nothing which
hinted at a motive. Robbery was
definitely eliminated. The purse con-
tained more than $20 and none of the
woman’s valuable jewelry had been
taken.

“She was shot four times,” Coroner
Branson informed them. “Three bul-
lets are still in the body.” He ex-
plained that three slugs had pierced
the abdomen and one had ripped
through the chest cavity, grazing the
heart.

Powder burns on the fur coat sub-
stantiated eyewitness accounts that
the gun had been held only a few
inches from the victim’s body when
the shots were fired.

But still there was nothing in all
this to indicate a motive.

Apparently, either jealousy or re-
venge had motivated the crime. Yet
the fact that the attacker had clutched
the woman in his arms and had at-

tempted to force her into the side .

street hinted it might have been the
work of a daring sex fiend.

The officers felt that somewhere in
the. woman’s background might be
found an incident that would explain
her death.

They knew that over a period of
more than twenty years she had been
admired by countless men. It seemed
entirely plausible that one had risen
out of the past to strike her down.

Harry Jones was quiet, sober, in-
dustrious. It was these qualities that
had attracted the retired show girl to
him and caused her to marry him.

Sheriff Orrock went to Jones’ home.
He was surprised to find no one there.

Was it possible that Jones had killed
his wife? Hardly, the sheriff re-
flected. In the first place, his descrip-
tion did not tally with that of the
slayer; Jones was a slender man of
average height. And in the second
place, it was a well-known fact that
he was proud of Frances and com-
pletely devoted to her.

But where was he?

An inquiry among neighbors quick-
Jy settled this question. Jones, they
said, was working the night shift on
the ore train. Orrock sent word for
him to come at once.

Meanwhile, Orrock’s deputies had
been tearing the mining camp apart in
an attempt to locate the fugitive. A
half dozen vagrants had been jailed,
but there was no evidence to link
any with the crime.

Fearful that the killer had fled from
town before the roads were blocked,
the sheriff notified a score of Nevada
officers in a 200-mile radius to be on
the lookout for the wanted man.

He met Jones at the mortuary. :

“Whoever did this will pay, and
pay plenty!” Jones cried in a broken
voice. “If you don’t get him, Sheriff,
I will!”

“You must help me, Harry,” Orrock
said gently. “It looks like jealousy or
revenge.”

Jones was bewildered. “It couldn’t

CRIME DETECTIVE

be revenge,” he said. “Frances didn’t
have an enemy in the whole world!”

“Then someone has been making a
play for her. Have any _ suspicions
who it might be?”

“None whatever.”

Realizing he must move swiftly,
Orrock turned to other sources for

information. He soon uncovered an:

interesting incident in the slain wo-
man’s life.

One of Mrs. Jones’ intimate women
friends revealed that one of her ad-
mirers had been furious when she
married Jones. He was a bartender.
in one of the town’s leading gambling
houses. A powerfully built, hand-
some fellow, he was easy enough to
get along with unless and until some-
one crossed him. Then he’d get mad!

BEATEN

Mrs. Doris Alger was brutally
beaten and slain in Califor-
nia. Her body was found near
that of her brother-in-law.

“I know that he brooded for
months after Frances got married,”
she said. “He even threatened to com-
mit suicide.”

Orrock sent two deputies to bring

the bartender in for questioning.
When he could not be located, they
felt certain they had at last struck
a hot lead.
_ But there were other developments
just as challenging. Before her mar-
riage Frances had gone with several
men, none of whom could be located
now.

All were men of excellent reputa-
tion. For instance, Jack Kramer was
a 60-year-old bachelor. A member
of the town’s leading clubs, well-to-
do and one of the solid citizens of
the community. As far as reputation
was concerned, he was typical of the
other missing men.

LP, fete Sheriff Orrock was con-
ducting this inquiry, his depu-
ties were having little success in driv-
ing the killer from cover.

Around midnight, Deputy Bill Neill
reported to the sheriff the disappoint-
ing news that the wanted man had
probably escaped from town in a car.

Orrock toyed with the empty shells
on his desk.

“Look at these,” he told the deputy

with sudden interest. “They’re so
new that they aren’t corroded at all.
Chances are, they were purchased re-
cently. Maybe right here in Ely.
When morning comes, we’ll check the
hardware stores. We might know then
for a certainty whom we are looking
for,” .

“A good idea,” said Neill. “If we
can get a lead like that, this case will
be simple.”

The bitterly cold hours wore on
toward dawn, and still no trace of the
phantom slayer was discovered.

(During this interval, two of the
missing men had been located, but
the: whereabouts of three others was
still unknown.

The two mining men promptly es-
tablished their innocence with iron-
clad, alibis. Furthermore, through
discreet inquiry, Orrock had learned
from close associates of all five sus-
pected men that none of them was
known to be the owner of a_ .32-20
pistol.

As dawn came, Friday morning,
Sheriff Orrock and Marshal Marriott
returned to the alley in search of
clues. Wondering if the fleeing gun-
man had thrown away his weapon,
they searched trash-cans and other
likely places. They found nothing.

“So much the better,’ said the
sheriff. “If the killer still has the gun
in his possession, it will be that much
easier to pin the job on him.”

But as the two officers were des-
perately combing the alley for tell-
tale clues, significant events were de-
veloping on the other side of town.

Charles Bondurant, an Ely fireman
who slept in the upstairs fire station
quarters of the City Hall, climbed out
of his bed at 7:30. The washroom and
lavatory were on the bottom floor, in
the fire engine room. Whistling, he
slid down the brass pipe.

He noticed a stranger sitting at the
Chief’s desk, a big man, bald as a
pumpkin, with a plump, round face.
A pint of whiskey was in front of
him. The collar of his dark overcoat
was pulled up tightly around his
neck.

“It’s colder than hell down here,”
he greeted the fireman. “Won’t you
have a drink?”

“No, thanks,’ said Bondurant.
“Can’t drink on the job.”

The fireman washed and combed his
hair. He noticed the stranger was
carefully watching his movements.
Presently the stranger said:

“I hear a woman was killed uptown

last night.”
“Tll say there was,’ retorted the
fireman. “It was Frances Jones.

Mighty fine woman. Some _ rat
pumped a gunful of bullets into her.
Wonder if they’ve found the killer
yet?”

“No,” the stranger said, “and they
won't! Not while he’s still alive!”

With that, he sprang to his feet.
The startled fireman found himself
looking down the barrel of a pistol.

“What do you want me to do?” he
asked quietly.

“Go about your business as usual.
But remember—one false move and
you'll get it!”

“But I can’t go about my business
as usual,” Bondurant lied, “unless I
leave-here. If I’m not up at the cafe
in about ten minutes, someone is go-
ing to come around and investigate.”

To his surprise, the gunman told
him to go ahead and get his break-
fast. But he warned the fireman to
keep his mouth shut unless he wanted

ram

Nothing
pened.
I didn’t
A dep
to Orro
a Spani
was ful
the sar
Jones.

It was
his inn
damning
useless <

nd face.
front of
yvercoat
und his

n here,”
on’t you

ndurant.

nbed his
ger was
vements.

{ uptown

rted the
s Jones.
yme_ rat
into her.
he killer

‘and they
ll alive!”
his feet.
i himself
' g pistol.
9 do?” he

as usual.
move and

7 business
“unless I
it the cafe
one is go-
vestigate.”
yman told
his break-
fireman to
he wanted

EEK

to get “a one-way ticket to hell.”

Feeling lucky he had escaped, Bon-
durant hurried uptown, A moment
later, he located Deputies Bill Neill
and Bill Van Volkenberg and ex-
citedly told them his story.

Neill and Van Volkenberg rushed
to the two-story City Hall Building.
Neill drew his gun and pushed open a
side door to the fire engine room.

A gun barked twice, ripping the
door panel. Neill ducked, without
catching a glimpse of the quarry.

“We better get help if we expect
to keep healthy,” he told his partner.

He remained on guard at a safe dis-
tance while the other dashed for re-
inforcements. Within a few minutes,
the building was surrounded by grim-
faced men. Sheriff Orrock had a bag-
ful of tear gas bombs.

ee Nek by Deputy Ed
Schloerb, Neill led the way toa
rear entrance. They climbed to the
firemen’s sleeping quarters and threw
the tear gas bombs into the engine
room below.

In reply, a fusillade of shots rang
out. They heard clambering foot-
steps and a door slam shut.

“The fumes are getting him,” grinned
Neill. “He’s gone into the lavatory
and locked the door.”

They reported to Orrock, who led
the way to another washroom adjoin-
ing the one in which the killer had
barricaded himself and which had an
entrance from a hallway opposite the
fire station.

“Come out the front door with your
hands up!” the Sheriff called through
the partition. “Or we'll blast you out
with lead!”

No response. They riddled the par-
tition with bullet holes. Still no
response.

They went outside and waited. Still
the gunman did not make an appear-

ance.

Schloerb offered to investigate.

“Not without us!” said Neill and
Van Volkenberg.

The three charged into the engine
room. Schloerb darted across to the
washroom, jerked open the door and
lunged out of range. The other two
covered the doorway.

“Come out with your hands up!”
Schloerb bellowed.

A pistol rattled across the floor.
A huge man, holding one hand over
his smarting eyes, came crawling
out. 4
They jerked him to his feet, rushed
him outside. To their astonishment,
the officers saw their prisoner was
60-year-old Jack Kramer!

“You're under arrest for the mur-
der of Frances Jones,” snapped Or-
rock, advancing with handcuffs.

Kramer, overcome by the fumes,
fell to the ground. He looked up, like
a whipped dog.

“T didn’t kill her!” he whimpered.
“Last night I was in a joint. Had over
$200 on me. This morning I wake up
here at the fire station. No money!
Nothing! I can’t remember what hap-.

ened. But I didn’t kill her. I swear

didn’t!”

A deputy handed the prisoner’s gun
to Orrock. He observed that it re
a Spanish type five-shot revolver. It
was fully loaded with 32-20 shells;
the same kind used to kill, Frances
Jones.

It was useless for the slayer to voice
his innocence in the face of that
damning evidence. It was even more
useless after Orrock’s men discovered

CRIME DETECTIVE

a half-filled box of .32-20 cartridges
in Kramer’s hotel room.

When a parade of witnesses posi-
tively identified him as the slayer, he
was doomed.

“There’s no use lying in the face
of evidence like that,” the sheriff. told
him. “You killed her. You shot her
down in cold blood.”

Kramer did not réply. He gazed
stonily ahead, as if he knew what his
doom would be and didn’t care.

For long and weary hours, Orrock
and his men worked on Kramer, using
now threats, now persuasion ... now
a simple appeal that he come clean.
But all their words were in vain. A
stubborn mask of silence fell over the
prisoner’s stony face and his lips set
in a hard line of bitter silence. The
Po agi gave up the hopeless task at
ast.

Orrock knew that he didn’t need a
confession because Nevada .law pro-
vides that a confession is not necessary
to exact a first degree murder penalty
if there are eyewitnesses to a crime.
Yet he wondered, even as all Ely
wondered, what bizarre motive was
behind the callous murder.

He went to Kramer’s cell.

“It might go easier for you,” he
said, “if you will tell why you killed
her.”

A cynical smile, almost a_ sneer,
curled on the prisoner’s thick lips.
“You're not kidding me!” Those were
the only words he spoke.

Later in the day, the bartender sus-
pect called at Orrock’s office.

“Soon as I heard of the crime,” he
explained, “I dropped from sight and
started gunning for Jack Kramer. I
didn’t have to guess. I knew damned
well he killed Frances.”

Here, at last, was the answer which
the sheriff had tried to pry from his
prisoner. :

“How did you know that?” he asked
anxiously.

The bartender had nothing more’
to say except that he was sorry he
hadn’t caught up with Kramer before
the law did.

There were rumors, of course. One
was that Kramer had tried unsuc-
cessfully to force his attentions upon
the woman ever since her marriage
to Jones. Another was that he had
sent her a Valentine Day present on
February 14, the day before the
killing, and that she had returned
it, which stirred him to a jealous
rage.

To everyone’s surprise, Kramer
pleaded not guilty.

He went on trial in District Judge
George P. Annand’s court on March
19, The jury quickly found him
guilty of the crime and fixed the
penalty at death.

Throughout these grim proceed-
ings, Kramer did not take the witness
stand. The motive for his crime still
was a mystery.

On the following day, when guards
from the State Penitentiary arrived
to take him on the long journey to
Carson City, he called the sheriff.

“I have a favor to ask,” he pleaded.
“There’s an old red tie in my suitcase.
Please get it for me. I want to wear
it the morning I die.”

The sheriff complied. with his odd
request, the only one Kramer made
while in custody. After he was taken
away, stories spread through the min-
ing camp that the old red tie which
Kramer carried with him to Death
Row was a present, in the years gone
by, from the former glamour girl... .-
Frances Wilson .. . Jones.

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Metadata

Containers:: Box 23 (2-Documentation of Executions), Folder 12
Resource Type:: Document
Description:: Eugene Gambetta executed on 1949-10-18 in Nevada (NV)
Rights:: In Copyright - Educational Use Permitted
Date Uploaded:: July 1, 2019

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