Nevada, A-B, 1948-1990, Undated

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blamed the other for the crime, after first
claiming that Hermiz had been stabbed
by an intruder as he slept.

The first trial ended July 19, 1956,
when a jury of nine women and three
men found Maurice Hamilton guilty of
first-degree murder. Mrs. Hermiz was
found innocent, “by reason of insanity.”
She was committed to the Ionia State
Hospital for the Criminally Insane. Ham-
ilton was sent to Jackson Prison.

On April 12, 1960, the State Supreme
Court ordered a new trial for Hamilton,
on the grounds that his confession had
been obtained under duress and should
not have been admitted in evidence. Mrs.
Hermiz, who was declared sane and re-
leased from the state hospital after 17
months, testified at the second trial,
which began October 3, 1960, in Detroit
Recorder’s Court, before Judge Frank
G. Schemanske. In four and a half days
of testimony she remained unshaken,
even under blistering cross-examination,
in her assertion that Hamilton alone
had planned the murder of her hus-
band. Again Hamilton denied any part
in the crime.

And again, on November 2, 1960, the
jury found Maurice Hamilton guilty of
first-degree murder. Before being taken
back to the jail, Hamilton said, “Five
years I’ve been falsely accused. I don’t
know what I’ll do now.”

DEATH WAITED FOR
THE LAST DANCE

{TD June, 1960)

In circuit court in Marion, Arkan-
sas, on September 2, 1960, Jerry Lynch
Blankenship, 17, pleaded not guilty to
charges of first-degree murder and
criminal assault, in the death of Carol
Arlene Feathers, a 14-year-old high
school girl, on February 20, 1960.

Both Carol and Jerry lived in Mem-
phis, Tennessee, but with other teen-

Carol Feathers Waters was slain.
khaki , Bhrudry, C96 /

WTS Re TROT PIES 3 re

st 23, 1961.

agers they often crossed the Mississippi
River to attend a dance club in West
Memphis, Arkansas. On the night of
February 20th Jerry offered to drive
Carol home after the dance. Her bat-
tered body was found next morning in
a dump not far from her home. Jerry
confessed that when she rejected his
advances he had struck her “with a
chunk of wood.”

On November 2nd the jury found Jerry
Blankenship guilty as charged, but they
recommended mercy. Circuit Court
Judge Charles Light then sentenced the
youth to a life term in prison.

THE BODIES ON THE
BARROOM FLOOR

(TD July, 1960)

At 7 a.m. on January 16, 1960, two
men were found slain in a Bronx, New
York, tavern. They were Jim Corless,
the bartender, and Bertram ‘“Sonny”
Haines, a Sing Sing parolee. Police
sought Joseph Lynch and an unnamed
companion, reported to have engaged in
an argument in the bar.

Lynch was arrested on March 12th and
held on a first-degree murder indict-
ment while search continued for his
companion. On October 27th the Bronx
district attorney’s office reported that
Joseph Lynch had been discharged ‘“‘be-
cause of insufficent evidence.” The
murder remains on the unsolved list.
ee”

DRAGONS ON HIS BACK

(TD December, 1959)

In Reno, Nevada, on April 12, 1960,
in Nevada’s first murder trial by a three-
judge tribunal without a jury, Thayne
Archibald, 22, was sentenced to death
for the murder of Larry Waters, 17,
of Livermore, California, on August 26,
1959, in Sparks, Nevada.

Larry, who graduated in June from
Livermore High School, where he was
an honor student, had won a $50-a-
month scholarship for college and was
working at a Livermore service station
to earn money for his college education.
On August 26th he disappeared. Money
was missing from the cash register and
police were looking for a youth whose
coat had dragons on the back, who had
been seen near the station.

Larry’s body was found 20 miles west
of Reno the next day. He had been
shot twice in the back of the head.
There were rope burns on his wrists.

The youth in the dragon-backed coat
was arrested on September 10th in
Baker, Oregon, following a service sta-
tion holdup. Charged with the murder
of Larry Waters, he confessed that he
had found the boy alone in the station,

forced him at gun point to open the |

cash register and give him the money.
Then he took the boy along in his car.
Near Sparks, Archibald said, Larry
jumped from the car and Archibald shot
him in the back.

The baby-faced killer had a record
for holdups in Oregon and Utah. He
was released from prison on May 29,
1959, only three months before Larry

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THE DRAGON'S

Through Nevada, Utah and Oregon the monster sped

HE more he thought about it, the
more George Howard became con-
vinced that his assistant, Larry

Waters, had been kidnaped. *

The seventeen-year-old youth would
not have walked off with the $42 miss-
ing from the cash register, he was sure.
And he wouldn't have stayed away from
work without at least calling.

Finally, shortly after noon on August
28, 1959, Howard went to see Sheriff
Jack Gleason of Alameda County, Cali-
fornia.

Howard operated a filling station in
Livermore. He told Sheriff Gleason
that he had been away from the station
on an errand and when he returned he
had found his helper, Larry, in the of-
fice with a customer.

“This fellow asked me if Larry could
go with him to look at some tires. It was
about time for Larry to have lunch any-
way, so I said okay,” Howard told the
or “They got into a car and drove
off.”

“Didn’t they say where they were
going?” :

“No,” Howard replied. “Anyway,

When they found the body high on a ledge in the mountains, they

gy
ae
: “

about half an hour later I opened the
cash register. It was empty.” !
Seventeen-year-old Larry Waters, an
honor student who was graduated from
high school that June, had been work-
ing at the station for only three weeks.
It was a temporary job, for he planned

. to go to college on a scholarship in Sep-

Ce, Lie Sa rs
BN gag BHR SAS ‘e ‘. Oe

tember.

“Do you think he knew this cus-
tomer?” Gleason asked.

“He seemed to,” Howard answered.
Then, scowling, he qualified the state-
ment. “But you know, now that I think
of it, Larry did act sort of nervous.
Maybe the guy had a gun and Larry was
trying to protect me.”

It was possible that Howard had
walked in on a holdup and the bandit
had taken the young attendant as a
hostage to keep him from sounding an
alarm. Gleason asked for a description
of both Waters and the customer.

Howard recalled that the stranger
had been about 20 years old, with sort
of a baby face and curly hair. He had
been wearing a dark-blue jacket with a
dragon crest on the back.

i ere

*

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“I’m not sure about the car. It was
a fifty-five or fifty-six Chevy or Olds,”
Howard said. “And I think it had New
Mexico plates on it.”

The description of the automobile
and the two youths was put on the
state-wide teletype system alerting all
law-enforcement agencies.

By late evening no word had been
received from Larry.

His father, A. L. Waters, a guard at
the University of California radiation
laboratory, along with his mother and
younger brother, waited anxiously at
the sheriff's office.

"The family had been questioned about
the youth who had been seen with Larry
at the station. They couldn’t recall
any of Larry’s friends who answered
the description, And they did not know

“anyone who drove a car with New Mex-
ico license plates.

The hours dragged on, and the fam-
ily finally went home to continue the
anxious vigil.

Sheriff Gleason assigned Captain
Kenneth Mitchell, Captain Frank Mad-
igan, Detective Robert Wilson and

Criminologist Arlen Gee to the investi-
gation.

They learned from Howard that the
last sale Larry had rung up on the cash
register was for $3.85 worth of gas and
55 cents’ worth of oil. This possibly had
been put into the kidnaper’s car. It.
would carry him a long way from the
scene before he would need gas again.

The investigators inquired around the
area of the service station, asking if
anyone recalled seeing the automobile
with the New Mexico plates. They also
questioned Larry's friends about the
baby-faced youth.

Twenty-four hours passed.

“I don’t like the looks of it,” Wilson
reported to Gleason. :

Wilson had a theory: Larry had been
held up and, because he recognized the
bandit, kidnaped.

The boy’s father, waiting at the sher-
iff’s office for some news of his son, was
approached by a radio news broadcaster
with an offer to use the facilities of his

- station. Sheriff Gleason agreed to the

plan.
“I'll tell the person who kidnaped

were sure at last that Larry Waters had not walked away willingly

ins Ge:

OFFICIAL DETECTIVE, December, 1959


ey left bound and

olen car with a
ompanion, they
rolman who shot
‘Yr from two Cali-
y were captured
er they smashed
it Caliente, near

ed serious injury,
J. Plumb, 30, and
from the San
ird-faced blonde,
sly as 17 and 23,
from Louisiana.
six-week cross-
ghout the South-
| the Washoe and
ters was the tele-
Sorce fitted the
ie kidnap-killer,
c. The gun was
tests against the

promising angles
2 hours of ques-
idson finally pro-
it proved a per-
crucial time
isclosed, he had
isive new sports
San Jose dealer
mmy had been
ies this, because
was over 21,
cost him his
jose dealer sub-
e vastly relieved
home to Ceres.
the Reno crime
yandit’s gun was
i Larry Waters.
was back where
ther suspects on
eriff’s office en-
rv Logan Page,
tist, who inter-
id his daughter,
1 composite pic-
<iller. Captain
rculars, bearing
ription, printed
enforcement
West.
nt doggedly on.
s central crime
ikland investi-
iby-faced young
robbing service
they were run
eputies scanned
e modus oper-
y that of the
They pounced
tation robbery

e in for parti-
still unsolved
i-year-old high
dy, shot three
was found

a mountain
Los Angeles,
exual motive
ung Kelch,

by a motorist
inap-killing

y stemmed
some other

t be ruled

ess slaying
their part,

il suspects,
id ran down
e thinly popu-
eek after the
vaitress in a
t of Painted
nervous
Larry
‘bout dusk on
ed the flashy

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is. oL

dragon jacket. The pair drank coffee at
the counter, and took hamburgers out with
them, the waitress said. Larry had made
no move to break away from his compan-
ion, who presumably was holding a con-
cealed gun on him.

By this time, Western states were
flooded with the Alameda circulars, but
there had been not a single valid report
on the dusty blue 1955 Oldsmobile or
Chevvy with New Mexico plates. The
officers were prepared to settle down to a
long, determined search for the unidenti-
fied two-state highway killer. The Washoe
County district attorney issued a “John
Doe” murder complaint. - FBI agents
pressed the hunt in their own quiet way.

With the law’s maximum heat turned on
throughout the West, a break was bound to
come. The Larry Waters case had barely
faded from the daily headlines, when it
flashed back again from a wholly unex-
pected quarter.

The date was Thursday night, September
10th, just two weeks after the murdered
station attendant’s body was found beside
the Truckee River. The place was the
small lumber, mining and farming center
of Baker, once a rough-and-tumble gold-
boom town, on the Powder River in north-
eastern Oregon, approximately 600 miles
from Reno.

At 8:53 o’clock that night, an abortive
holdup attempt was reported to the Baker
police. A downtown service station at-
tendant had bluffed and frightened off a
young gunman in a dark blue 1947 Ford
sedan. Half an hour later, the same baby-
faced robber hit a second service station
and this time he got away with $20.

Sergeant Kenneth Hill alerted Police
Chief Fred Still at home, and the chief
moved in fast. Baker, a city of 10,000 peo-
ple, has a small but very efficient police
force. Chief Still called in off-duty officers,
and all roads leading out of town were
swiftly blocked.

Officers started a block-by-block search
of the downtown area. Minutes after the
hunt began, three policemen cruising in
a squad car spotted the blue sedan, stopped
in a third service station. Its headlights
had gone out, and the driver was having his
generator fixed. The officers recognized
the holdup man from his description. They
closed in with drawn guns. The surprised
youth gave up without a struggle and was
quickly handcuffed.

When Chief Still sirened up a minute
later, in response to the squad car’s radio
flash, the short, thin young captive, dressed
in levis and rough work shirt, was still
protesting that it was all a mistake.

“Where’s the gun?” the chief demanded.

“I don’t have one,” the manacled youth
told him sullenly.

Then, when Still started looking in the
car, the prisoner gave up his pretense with
a shrug. “I might as well tell you,” he
said. “You've got me. It’s in the pocket of
that jacket, hanging there.”

In the pocket of the sports jacket in the
car, Chief Still found a fully loaded .25
automatic. Officers bundled the youth into
a police car and took him to the station,
where Chief Still scrutinized him sharply.
The heist artist’s car didn’t exactly fit the
description of the one hunted in Nevada
and California, and the jacket didn’t have
dragon emblems, but the chief, noting the
sharp-featured, blue-eyed baby face and
the mop of brown, wavy hair, immediately
thought of the sketch on the circular from
Oakland. The young prisoner stood 5 feet
8 and weighed about 120 pounds.

“Have you been down California or
Reno way lately?” Chief Still asked him.

The wild-haired youth hesitated a mo-
ment, then shrugged once more. “Well, I
guess I’ve had it. You might as well call
California.” A few minutes later he was
pouring out his confession, in a matter-of-

fact way and without any visible emotion.

The baby-faced gunman identified him-
self as Thayne H. Archibald, 20, of West
Roy, in northern Utah. He acknowledged
a lengthy police record. He had been re-
leased from Oregon State Prison last May,
after serving a term for auto theft, he
disclosed.

“I was broke, down there in California,”
he said, “and I wanted to go back home,
so I decided to pull a job. I left San Jose
that morning and crossed the bridge. I was
nearly out of gas and everything, so I
pulled into this service station and told the
guy to fill the tank.

“I went into the office. I was ready to
hold the guy up. But this girl came in and
made a phone call. I waited till she left
and the kid came in to get his money.
That’s when I held him up. I made him
hand me the money from the till. First I
took $7 from his wallet. He was plenty
scared.

“Then I saw this big guy, the owner,
coming in. I told the kid to act natural and

tell the guy we were going out to look at.

some tires or something. I waited till he
got in the car, then I got in and drove three
miles outside town. Then we _ switched
places. I made him get in the driver’s seat
and I got in back, still holding the gun on
him. I was taking him along to cover the
holdup and give me time to get out of
town. I didn’t figure on hurting him. I told
him that. He calmed down and we talked,
friendly like.

“T made him. drive straight through to
Reno and on past Sparks. We got some
sandwiches and coffee at a little cafe. Then
we drove on down the road a few miles and
pulled up on the side. We were sitting
there, eating: the sandwiches, when this
Larry suddenly jumped out of the car. He
jumped out and started to run over this
little hill.

“Well, I don’t know what actually made
me do it, but I stepped out and shot twice,
and he tumbled like a rabbit. I went up
there and saw he’d been hit. Actually, I
knew he was dead. So I stretched him out
and folded his arms behind him, to make
him comfortable. Then I got back in the
car and drove on into Utah.”

Archibald said that after spending a few
days at his father’s home in West Roy, near
the shore of Great Salt Lake, he lit out
again and worked on a ranch near Tusca-
rora, Nevada, before heading for Oregon.
He was on his way to Portland, Oregon.
But when he reached Baker, he discovered
he was broke. He decided to stick up a
few gas stations, his favorite source of
quick revenue. He said he had been almost
on the point of shooting the Baker station
attendant who bluffed him.

The pint-size confessed killer, who said
his parents had split up when he was four
years old, attributed his career of crime
to the fact that he had started smoking
when he was only 7 years old. First he
stole cigarettes and small change from his
father, he said. Then he graduated to
petty thefts outside the home. He was first
in trouble with juvenile authorities when
he was 9 years old. When he was 11 he
stole a panel truck in Ogden, Utah. A few
years later, he said, he stole $3000 from a
yacht club office in Ogden Canyon. He
was caught and sent to the Utah State
Industrial School. He escaped in 1956, was
recaptured the same year, returned to the
school, and later was released.

In February, 1957, Archibald was ar-
rested in Deschutes County, Oregon, for
auto theft, and sentenced to Salem as an
adult for a 3-year term. He was released
on May 29th, 1959, three months before
the slaying of Larry Waters. Always a
lone wolf operator, he also had been ar-
rested for burglary and other charges.

That was the sordid, shocking story.
Young Archibald repeated it to Captain

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Mitchell of Oakland, who rushed north,
and he readily signed a full confession. He
said he was sorry that he had killed the
Livermore youth. “If I’d thought for a
minute, I wouldn’t have pulled that trig-
ger.” But he didn’t display any real
remorse. He asked what the death penalty
was in Nevada, and when Chief Still told
him it was the gas chamber, Archibald
hung his head. “I’d rather get that, I guess—
or shoot myself, if I had a gun—than go
back to. prison,” he muttered.

There still were a number of loose ends.
The Reno officials, when they learned the
details of Archibald’s confession, didn’t
credit it in full. They believed, from the
evidence of the powder burns and the
ejected shell near the body, that Larry
Waters had been shot at close range, from
directly behind, and not from a distance
as he was running away. Also, the young
Utah felon’s glib confession didn’t explain
the rope burns on Larry’s wrists.

Sheriff LeRoy Hadley of Ogden, Utah,
confirmed Thayne Archibald’s juvenile
record in the Beehive State and filed a
complaint charging him with still another
recent service station robbery, for $175, at
Clearfield, Utah. The dark blue jacket with

the weird Chinese dragon emblems was .

found in Thayne’s room in his home at
West Roy.

Young Archibald’s father, a hard-work-
ing, respectable man, was stunned. He
said he didn’t know what to think. “Thayne
was just an average boy,” he told officers,
“but something must have happened to
him, somewhere along the line. I can’t
explain it.”

Archibald waived extradition proceed-
ings, and District Attorney William J.
Raggio and Investigator Driscoll drove to
Baker and returned him to Nevada, where
the baby-faced killer reenacted his version
of the shooting for the benefit of an official
movie camera. Raggio inserted Archibald’s
name on the ‘John Doe” murder complaint,
and the baby-faced confessed killer now
awaits trial in Reno. oeo¢

Epitor’s Note

The name, Tommy Hudson, as used in |
the foregoing story, is not the real name |
of the person concerned. This person |
has been given a fictitious name to pro- |
tect his identity. |

Murderous Rage of
Houston's Mad
Bomber

(Continued from page 28)

wife.” The notes were unsigned. The three
teachers stood, staring in bewilderment at
the strange man and the friendly little boy.
Then Mrs. Doty and Montgomery, the cus-
todian, arrived.

At that moment there were three groups
of children in the play area, supervised by
three teachers. They were about 50 feet
from the main building. When Mrs. Doty
realized that something was amiss, she sig-
naled the teachers to begin marching the
children back into the building.

The man still urged Miss Johnston to
gather the children in a circle about him.
Some of them approached, but the teacher
ordered them away.

“There is a button on the bottom of this
suitcase,” he said. “All I have to do is
press the button.”

Now the principal took charge. “Now,
look Here,”’ said Mrs. Doty. ‘‘We can’t have
you disturbing the children and our rou-
tine. You must leave the school grounds.”

He shook his head: violently. “No, no,” he
said. “I have to get to the second grade. I
have to follow the children to the second
grade.” He repeated these two sentences
over and over again. Then he repeated
that a button on the bottom of the suit-
case would cause a terrible explosion.

Mrs. Doty again ordered him from the
school grounds. Montgomery, the 56-year-
old custodian, stepped forward and held
out his hand. “Now, stop. this nonsense,”
he said firmly. “Give me that bag.” He
reached out to take the suitcase and that
was the final physical action in the life of
James A. Montgomery.

The explosion sounded like a crashing,
artillery barrage. The noise smashed
through the streets like a clap of insane
thunder. The blast shattered the windows,
rattled the houses for several blocks in all
directions. A pancake of smoke rose black
and high for 100 feet above the north wing
of the U-shaped school building.

Te

Screams of agony rent the air. Shouts of
the teachers, ordering the children into fire
drill formation, rose above the cries of the
wounded. The students began marching
from the building in good order. Among
the first outside were a group of eight, even
more bewildered than the others. This was
a class of blind Braille students.

Two blocks away, firemen at Station
Number 4, heard the mighty blast, spotted
the smoke and raced their apparatus to the
scene,

Investment banker Wylie Harris was
standing by the window of his home on
South Boulevard when the jarring explo-
sion shattered the pane. He looked at the
school ground. He saw children lying on
the ground. Some others were running.
Others were still and covered with blood.
Harris snatched up the telephone and put
through a call to the police dispatcher and
told him to send at least six ambulances.
A score of other area residents telephoned
the authorities. Within minutes aid was on
the way.

School Superintendent John W. McFar-
land, District Attorney Dan Walton, Hous-
ton Police Chief Carl Shuptrine, Sheriff C.
V. Kern, a dozen fire companies, Fire Chief
C. M. Bullock, a squad of FBI agents, am-
bulances from Hermann Hospital and every
available doctor raced to the Poe School.

It was a ghastly sight. Three children,
smiling Dusty, 7-year-old William S. Hawes
and 7-year-old John Cecil Fitch lay dead,
burned and blackened. The crumpled body
of James Montgomery lay on the edge of
the concrete playground. Next to him lay
the body of Mrs. Jennie Kolter. Hermann
Hospital’s chief resident physician, William
Henry Kolter.Jr., moved among the sham-
bles. He found himself standing, speech-
less and weeping, over the dead body of his
teacher mother.

The father of Dusty had been blown to
pieces, too. His feet, his- hands had been
blasted from the torso. Half his face had
been blown away.

Mrs. Doty, the principal, was seriously
injured. She was rushed to the hospital,
suffering from a compound fracture of the
right leg, multiple bruises and cuts. Eight-
een of the pupils, ranging in age from 6 to
10 years, were injured in various degrees.
All were carefully placed in the ambu-
lances and rushed to hospitals.

The word spread as swiftly as had the
sound of the blast. The school grounds
were suddenly thronged with anxious,

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The fantastic luck of the bandit who
had survived the gun battle still held.
No trace of the car could be found. It
was as if the fugitive had driven off into
thin air.

Rings of new road blocks were thrown
up around Lansing in an effort to inter-
cept the car. But officers held out little
hope that Winegar would be careless
enough to attempt to drive through a
road block.

He probably, officers speculated,
would abandon the car and either try
to commandeer another vehicle that
was less conspicuous or else try to make
his way into Lansing on foot.

It now was almost eleven a. m. and a

new factor was compounding the search
for the fugitive—football.

Traffic had been building up steadily
throughout the morning as football fans
from throughout Michigan and north-
ern Indiana moved into Lansing to wit-
ness the annual Big Ten football game
between Indiana and Michigan State.
It was a game that was expected to draw
a record crowd, for Michigan State was
enjoying the nation’s top ranking
among the collegiate teams.

Weary officers, after a sleepless night
of working on the manhunt, also had
the job of directing traffic.

In the heavy traffic, officers knew, it
would be fairly easy for the fugitive to
slip past unnoticed.,

Noon passed and still they had no
lead on the missing Deputy Sheriff’s
car or the gunman.

ND then, at 12:30 p. m., a woman
telephoned the Lansing Police De-
tment. Her voice was indignant.
~I’ve been wating almost an hour for
your officer to come back with my car,”
she declared. “I’m getting tired of it
and besides I’m going to be late for the
football game if I have to wait much
longer.”

Police asked her to explain.

She identified herself as Mrs. Nolan
Mitchell. Shortly before noon a Deputy
Sheriff's car had pulled abreast of her
at a southwest Lansing intersection and
the driver had told her to pull over.

She obeyed and a man in civilian
clothes walked back to her.

“I’m sorry, Ma'am,” he had said
apologetically, “but I’m a Deputy
Sheriff and the license number on your
car is one that is listed on our records
as having been stolen. Would you mind
stepping out and waiting in the patrol
car while I make a check?”

“Well,” Mrs. Mitchell had retorted,
“this car isn’t stolen. It belongs to my
husband. There must be some mistake.”

“If there is we'll find out and you can
go on your way,” the man had told her.

She got out and waited in the patrol
car. She looked back and saw the man
slide into the front seat of her car.
Then, to her surprise, the car backed
away.

“I’m going to drive this car to the
station,” the man had called. “I’ll be
right back. You wait there.”

She had waited until 12:30 and then
called the Police Department.

The car she was waiting in, police
realized at once, was Maiville’s stolen
cruiser. And the fugitive had slipped
away in the football traffic driving her
car.

A description of her car was broad-
cast to all points at once. But officers
held out little hope of finding Winegar
in it. He already had a 45-minute head
start on them.

At two p. m., Mrs. Mitchell’s car was
found abandoned behind a southwest-
ern Lansing high school.

Discovery of the car, however, gave
officers a ray of hope—the fugitive
might have abandoned it within walk-
ing distance of his home.

No one, however, had seen the car
“*en into the schoolyard. One

ian who lived nearby said she had

| @ man walk hurriedly out of the

»lyard at about one p. m. and con-
tinue south, toward a new residential
development, on foot. She was not able
to furnish officers with a description,
however.

The man had vanished again after

ty

Up to the Minute

§ Ast March 20, Wilfred LaBrie, custodian at the Miles Elementary
School in Tucson, Arizona, and part-time helper at a local serv-
ice station, was fatally knifed in a holdup attempt. Two witnesses
saw a young man fleeing the station and identified police pictures
of 23-year-old James Thomas Frazier of Little Rock, Arkansas,
as the suspect.

The detective investigation into the slaying and the subsequent
search for Frazier were the subjects of a story entitled “Even After
Flooding the Nation with Flyers,” in the July, 1961, issue of
OrriciaL Detective Stories Magazine. At the time that issue went
to press, Frazier had been charged with the slaying, the FBI had
charged him with unlawful flight to avoid prosecution, and he was
the object of a nation-wide search.

He since was arrested in Tennessee on a petty theft charge and
also has been charged with attempted bank burglary in Topeka,
Kansas; however, he was extradited to Tucson in connection with
the slaying charge. There, he steadfastly denied the holdup killing
and insisted he was in California at the time. Several lie-detector
tests and a “truth serum” examination substantiated his story and
the Tucson murder charge has been dismissed.

Results of the action pending against him in Kansas and any
further developments in the LaBrie case will be reported in the
Up to the Minute feature in a future issue. :

N CARSON CITY, Nevada, a killer went to the gas chamber
professing an overwhelming “feeling of love for the whole
human race.”

The condemned man, Thayne Archibald, 22, had been sen-
tenced to die by a panel of three district judges after he con-
fessed to the fatal shooting of Larry Waters, a seventeen-year-
old honor student, on a ledge overlooking the Truckee River,
about 30 miles east of Reno (“The Dragon’s Trail,” December,
1959).

SENTENCES have been passed on the two men who Killed two
Cape Girardeau, Missouri, policemen and a civilian in gun bat-
tles following their break from a San Luis Obispo, California, jail.
Sammy Aire Tucker of Fresno, California, was tried in Jackson,
Missouri, and has been sentenced to death in the gas chamber on
a conviction of first-degree murder in the deaths of Patrolman
Donald Crittendon, 27, and Auxiliary Patrolman Herbert Goss, 67.

His partner, Douglas Wayne Thompson, also faces trial for the
fatal shooting of the patrolmen. Meanwhile, however, he has been
sentenced to life imprisonment at a trial in Poplar Bluff, Missouri,
for the death of 45-year-old Raymond Glover, who had picked
Thompson up as a hitchhiker and who was an innocent victim of a
gun battle between Thompson and State Trooper Glenn E. Davis.
The Trooper and Thompson both were wounded in the fracas
(“Seven Days on a Shooting Lam,” June, 1961).

IGHT convicted killers have been sentenced to life in prison
as a result of recent legal actions. They are: Joseph W.
Maxey and Lorelle Parks, Jr., for the rape-slaying of two socially
prominent New Jersey women, Mrs. Eleanor Tyson of Plainfield
and Mrs. Eleanor Ewell of Westfiel? (“This Good Samaritan
Couldn’t Resist Kidnaping,” October, 1961); William Castillo,
Robert Hall, Michael Kilkenny and Larry Magee all teen-agers,
for the streetcar murder of schoolteacher William P. Hall in
San Francisco (“Case of the Trolley-Car Hoods,” August, 1961),
and Thelma Ann Swenson and Frederick A. Ferguson for the
slaying of Mrs. Mary Campbell in Kent, Washington (“Can She
Hypnotize to Kill?” June, 1961).

| z= imprisonment also has been decreed for Mrs. Gertrude Lee
Nunez for the murder of her four-year-old daughter, Martha
May Jackson. Her companion, Miss Jeannance Freeman, earlier
was sentenced to death in the gas chamber for the slaying of Mrs.
Nunez’ six-year-old son, Lawrence Jackson. The children’s bodies
had been found at the bottom of Crooked River Canyon, near
Madras, Oregon (‘“‘There Were Four—Then Two—Then——,”
September, 1961).

N OTHER Oregon trials, Glen Douglas Dixon and Larry West
Shipley were found guilty of first-degree murder for the fatal
shooting of Linda Jean Stevens, sixteen, of Willamina. Shipley
has been sentenced to death, while the jury recommended
mercy in the case of Dixon, who was sentenced to life imprison-
ment (“Did Linda Run Away to Be Killed?” November, 1961).

HE strange case of the two-man army which blew up several

microwave communication towers in the Nevada-Utah desert
has been closed with the sentencing of Bernard Brous and Dale
Jensen to prison terms of eight years each (“Who Could Start This
Billion-Dollar War?” October, 1961).

leading Michigan police on what the
state’s newspapers were describing as
the biggest manhunt in local history.

The wounded Williams, by this time,
was undergoing surgery and was unable
to be questioned again.

But a closer search of his effects
turned up some information that had
been overlooked in the haste to identify
him earlier in the morning.

In his billfold was a receipt from a
Lansing department store, a carbon
copy of an order to deliver a refriger-
ator to an address in the 1800 block of
Reo Road on Saturday afternoon. The
receipt bore a notation that, if no one
was at home, word should be left at 2028
Reo Road, the home of a friend.

Police raced to the address in the
1800 block Reo Road. No one was at
home. A watch was posted on the house
and officers hurried to 2028 Reo Road.

There a woman carrying a small baby
answered the officers’ knock at the door.
She identified herself as Mrs. Winegar.

“Is your husband at home?” she was
asked.

ae looked uneasy. “Yes, but he’s
sick.”

“It’s important that we talk to him
at once.”

“You can’t,” she said. “‘He’s sick.”

She slammed the door.

Police withdrew to the street and
called for reinforcements.

By four p. m. more than 50 officers
had appeared. The house was sur-
rounded.

Through a megaphone police shouted
for Winegar to come out. The instruc-
tions were repeated several times.

Finally the door opened. Mrs. Wine-
gar stepped out, carrying her baby. She
ran through the police lines sobbing
and entered a neighbor’s home.

Officers closed in on the house. Two
gare through the front door, guns

rawn,

THEY found Winegar hiding beneath
a bed. Four guns lay beside him.
All of them were loaded.

“I give up,” he said meekly. “Don’t
shoot. Just don’t hurt my wife and
baby.”

He readily admitted he was the fugi-
tive being hunted by police. He said he
and Williams were planning to burglar-
ize the Jackson service station when
the two officers came up on them.

“I guess we lost our heads,” he said.
“We've been doing this sort of thing for
years. We never came close to being
caught before now.” ’

But as officers looked over Winegar’s
home they discovered that he was no
ordinary burglar. Plaques on the wall
identified him as a graduate of a lock-
smithing school. Textbooks on a shelf
described the construction of safes.

“I’m also a locksmith and a safe
builder.” Winegar smiled as officers
glanced through the books.

In his garage officers claim they
found more than $50,000 in burglary
loot—loot which later would be traced
to almost half a hundred burglaries in
Michigan, Ohio and Indiana.

At Headquarters Winegar, who also
was known as Bill Winegarten, dictated
a full statement. He admitted having
served a prison term for burglary and
said he was currently free on bond from
an Ohio charge accusing him of illegal
possession of burglary tools.

On November 4, Williams rallied
sufficiently frem his wounds to make a
verbal statement to police in which he
admitted participating in the kidnaping
of Richmond and Miller and engaging
in the gun battle with Deputy Maiville.
According to his statement he occasion-
ally used the name John Rogers. Fur-
ther police investigation indicated his
true name was Richard Eugene Mauch.

Both men were charged with assault
with intent to commit murder and or-
dered held for trial. Mauch was held in
lieu of $500,000 bond and Winegar
under $200,000 bond.

In addition, Jackson County author-
ities have issued kidnaping warrants for
the two men. These warrants are filed
as detainers pending disposition of the
Ingham County charges.

49


Seer

summer’s day. He announced he was going,

walked out under his own power, so it was
understandable that no one even suspected it would
become a case for the police for several hours.

It was only when his employer discovered money
missing from the till that the first faint misgivings
were felt. Not that he suspected Larry of stealing.
The youth had only been working for him about
three weeks, but Tom Roland had complete con-
fidence in him; he knew the boy’s family—solid, re-
spectable people who brought their kids up right.

Thinking back a couple hours, Roland reviewed
in his mind the events which had led up to Larry’s
departure a little after noon. He forced himself to
remember every detail. He recalled now that he’d
thought the kid’s behavior was a little odd, but at
the time he attributed it to the boy’s possible em-
barrassment at asking for time off in the middle of
the day.

T= KID left in broad daylight of a sunshiny

But disturbing his recollections at that moment
was the memory of Larry’s companion. That one,
now that he gave the matter sober thought, had
been tense—very tense. Larry? Well, maybe it was
embarrassment, but in retrospect the kid might
well have been under some sort of strain.

Tom Roland didn’t like the conclusions he finally
reached. He didn’t like them at all. Reaching a de-
cision, he went to the telephone and called Larry’s
father, a security officer at the University of Cali-
fornia’s Radiation Laboratory at Livermore. He told
the parent what had happened, and he told him
what he feared. It added up to robbery and kidnap-
ing. They both agreed that’s what it looked like
when Roland had finished his story. They both
agreed Roland should report it at once.

It was nearly three o’clock on that Wednesday
afternoon of August 26, 1959, when Roland called
the Alameda County Sheriff’s sub-station at Liver-
more. Within 10 minutes, a couple of cruisers bear-

“We were sitting there eating,” the youth calmly told cops. “He started

“What’s
the

DEATH
PENALTY

in

Nevada?”

by CHARLES WALKER

TER DETECTIVE, July, 1963.

Larry was not only a good boy but a
brave boy. He saved his employer’s life,
and was found dead 20 miles from Reno

ing deputies pulled into the D. & H. Service Station
on the outskirts of Livermore.

“I'd like you to tell us about it from the begin-
ning,” said one of the deputies, pulling out a pad
and ballpoint. He took notes as Tom Roland began
his story.

“I had gone back to the house to watch my
daughter’s baby,” Roland said. “She wanted to come
over here to the station to make a phone call. I told
Larry to watch things, that I’d be back in a few
minutes. He’s a cheerful kid. He told me to take
my time.”

Roland said he noted a dusty blue sedan pull in
as he left. When he came back to the station after
his daughter had completed her call, Larry and a
thin-faced fellow were near the register.

“Would you mind taking care of the station by
yourself for a while, Mr. Roland?” he quoted Larry.
“I have to leave for a few minutes to go and—and
see about some tires.” :

“I thought that was a little funny,” Roland said.
“We sell tires here. But then I figured the other
fellow was a friend and maybe they were going to
try to buy some second-hand tires. The other guy
backed him up. He said, ‘Yeah, we gotta look at
some tires.’

“Anyway, I told Larry okay, and he might as well
grab his lunch while he was gone, but that I wanted
him back by two.”

Roland said they left together in the blue sedan.
He got busy, but as things turned out, he was mak-
ing change from his pocket for the next couple of
hours. It was not until after two p.m. that he had
occasion to go to the register. He was astonished to
find there wasn’t a bill in the drawer, only a few
dollars in silver. He did some fast figuring and
found that $42 was missing. That’s when he de-
cided to call the police.

“So you think the kid robbed the till?” one of the
deputies said.

to run and I stepped out and shot twice, and he tumbled like a rabbit”

1) epeasy *pa4q

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oe

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emg uo (a0ys

a

*T96T@€


(Continued from page 60)

HOWARD FRANCIS PUGSLEY. Charge: Unlawful flight (Car
stealing). M.D. Reward: $100. Age, 55, height, 56”; weight,
160 to 180; eyes, blue-gray; hair, brown (graying). If
located notify J. Edgar Hoover, FBI, Washington 25, D.C.

HOWARD FRANCIS PUGSLEY, who has used many
aliases, including the name, James W. Corbin, is being sought
by the FBI for taking a stolen car across state lines.

On April 12, 1958, Pugsley reportedly attempted to trade
a 1956 car at Newark, Ohio for a larger and more expensive
vehicle. He was unable to complete the transaction, and
on April 14th the expensive car was swiped from the park-
ing lot sometime during the night.

The following May 10th, Pugsley allegedly traded the
stolen car for a later model at Muncie, Indiana, giving a
check in the amount of $1,715 for the new car. This vehicle
was found, abandoned, in a parking lot in Chattanooga,
Tennessee on February 6, 1959. As to the check Howard
Pugsley used—it is still bouncing.

Previous to the stolen car rap, Howard Francis Pugsley
has been convicted of breaking and entering, forgery, em-
bezzlement, grand larceny and draft dodging.

Pugsley usually wears glasses and has a ruddy complex-
ion. Note that he is slightly crosseyed and has a slight
limp in the left leg. He has worked as an amusement con-
cession operator, service station operator and truck driver.
He has pit scars on the right cheek, and has four dots
tattooed on his left forearm. Pugsley’s build is described
as “big,” though he stands only 5’6”.

AMBROSE FIORETTO. Charge: Unlawful flight (Bank rob-
bery). M.D. Reward: $100. Age, 38; height, 5’9” to 5°10”;
weight, 155 to 170; hair, brown; eyes, blue. If located, no-
tify J. Edgar Hoover, Director, FBI, Washington 25, D.C.

A HEAVY SPENDER with a penchant for waving a huge
bankroll before “high class ladies,” is the object of a nation-
wide search by FBI special agents.

The spender’s real monicker is Ambrose Fioretto, but he
may be calling himself Andrew Lee, Anthony Florio, or
any one of a dozen other aliases.

Fioretto gets his bankroll through bank robberies, the
G-men report, and the specific charge he is sought under at
present is for disposing of travelers checks heisted during
the robbery of the Newfoundland Branch of the First
National Bank of Butler, Newfoundland, New Jersey.

A Federal warrant for Ambrose Fioretto’s arrest was
issued at New York, New York on October 24, 1961.

Fioretto has been at large since that date.

A former part-time police officer, Fioretto has been
identified by victims who cashed hot travelers checks for
the smooth-operating bank robber.

Fioretto is known to frequent race tracks, where he is
a heavy bettor, and he likes to frequent night clubs, and
flash that bankroll for the “nice ladies.”

Fioretto has a medium build, and has worked as a tavern
manager, chauffeur, auto mechanic, truck driver, brakeman,
and sometimes as a common laborer. His build is medium
and he was born in Paterson, New Jersey. ’

HOW TO QUALIFY FOR

WANTED is a free public service. All law enforcement agencies
are invited to make use of it. Readers of MASTER DETECTIVE pos-
sessing authentic information concerning any fugitive pictured
in WANTED are urgently requested to: FIRST—Communicate
with their local police, or police in the city where the fugitive
may be located. SECOND—Advise us immediately upon identi-
fication of the fugitive through WANTED. Where authorities
are notified by letter or wire, send copy of same to ITED
Editor. Application for reward must be postmarked within 24
hours after the hour fugitive has been positively identified
through WANTED. (Police officers who effect the capture of
fugitives wanted by their own department are not eligible for
WANTED rewards.)

Identity of Readers Who Furnish Information Leading

THESE MD REWARDS

MASTER DETECTIVE reward offers are in effect up to six months
after the publication of photo and the reward is payable to the
person who first identifies the fugitive, prior to his arrest, from
the photograph of the wanted subject appearing in WANTED
and gives the tip that leads to his capture.

MASTER DETECTIVE reserves the right of final decision in deter-
mining whether or not the evidence submitted by the claimant
to the reward is sufficiently clear and conclusive.

If you have any information on the whereabouts of the fugt-
tives listed in this month's WANTED, send it in a letter ad-
dressed to A. P. Govoni, Editor, MASTER DETECTIVE, 206 E. 43 St.,
New York 17, N. Y.

to Captures Will Be Held Confidential Upon Request

RE

What's the Death
Penalty in Nevada?

(Continued from page 49)

maniac, There’s no sense to the killing.
Why kill the boy just because he could
blow the whistle on a $42 robbery? Un-
less, of course, the killer’s already
wanted for something more serious.
Anyway, we’ve got to get this guy—and
fast—before he kills somebody else.”

From his office in Reno, Sheriff C.W.
Young flashed the second all-points bul-
letin for the sharp-featured youth with
the blue sedan and dragon jacket, but
this one had something new added:
“Wanted on suspicion of murder.” It
went to all Western states. The FBI en-
tered the case, now that the interstate
character of the crime had been estab-
lished, California officers flew to Reno
to lend their aid.

Two .25 caliber bullets were recov-
ered from Larry Waters’ head in the
autopsy. The report said powder burns
near the wounds indicated he had been
shot at close range. The presence of the
cartridge case at the murder scene in-
dicated the .25 caliber weapon was an
automatic.

Nevada and California officers agreed
now on a plan to retrace the route tra-
versed by the killer and his victim from
Livermore to the Nevada murder site.
California lawmen would check along
U.S. 50 through Stockton to Sacramento,
then Route 40 through Auburn and over
the Donner Summit. Nevada officials

would do the same to the 50-odd miles
from Painted Rock to the California
border. Every roadside eating place and
service station would be canvassed in
the hope of finding someone who had
seen Larry and his killer in the blue
sedan. Washoe Chief Deputy Frank Cole
would direct the Nevada search and
Captain Madigan would handle the Cali-
fornia end.

While this mammoth task was getting
under way, a lead which was considered
sizzling hot came in “over the transom,”
so to speak, right in Livermore. Within
minutes of each other, two real estate
men in the city called to report that a
former employee of each might bear in-
vestigation. The young man had worked
for both realtors, and had gotten into
trouble with each.

They said he had been in town the
day of young Waters’ disappearance
and was driving a sedan which closely
resembled the description of the killer’s
car, He also fit the description of the
kidnaper. He was described as a wild,
erratic youth quite capable of sticking
up a gas station.

Deputies quickly ascertained the youth
had also known Larry Waters at high
school. Inside of a matter of three hours,
deputies caught up with the suspect at
his home in Modesto. A few hours later
his alibi had been verified.

On Friday, a fresh wave of excite-
ment swept over the two-state investi-
gation with the capture of two youth-
ful gunmen and their flashy blonde com-
panion, after the men had pulled three
daring daylight robberies in Reno. The
trio was captured after a wild, bullet-
punctured chase. One of the men was
armed with a .25 caliber automatic, the
same type of weapon believed to have

been used in the Waters shooting.

It was rushed to a crime laboratory
for comparison with the death slugs.

Twelve hours later, hopes were
dashed by the report that ballistics had
ruled out the gun as the death weapon.
The suspects also cleared themselves of
the murder charge by one of the strang-
est alibis ever encountered in Nevada.

At the very time Larry Waters left the
Livermore gas station with his killer,
the two bandits said, they were stick-
ing up a roadhouse 30 miles east of
Reno. The alibi checked out, too, when
their victim verified it.

During the next week, in the absence
of fresh developments, the case faded
from the front pages, although investi-
gators in two states pressed their search
for Larry Waters’ killer without letup.
At least a couple of dozen “hot” tips
were run to earth and found to be value-
less. For all practical purposes the probe
was stalemated.

That was how matters stood on the
night of Thursday, September 10, 1959,
two weeks after the murder of young
Waters was discovered. But at 8:53 that
evening, the long-awaited break oc-
curred in the town of Baker, in Oregon,
some 600 miles from Reno.

Baker police got a flash that a gas
station attendant had bluffed and scared
off a youth who tried to stick him up,
then fled in a 1947 Ford sedan. Police
Chief Fred Still and Sergeant Kenneth
Hill moved fast and had roadblocks in
position within minutes. At 9:11, just 18
minutes after the attempted holdup,
Baker police captured the bandit.

He was young, thin, about five feet
eight, with sharp features and an an-
gular jaw. He wore levis and a work
shirt. A frisk showed he was unarmed.

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got there, we found
rom a minor scratch
e told us he’d been
7estmont Avenue, a
vay, when he saw a
eet next to the curb.
and got out to help
walked up, someone
behind. The ‘injured
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sailants extracted $4

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Sea Te

Roland shook his head emphatically. “No, sir, I
don’t. Larry Waters may be only seventeen, but he’s
a good, steady, conscientious lad. Comes from fine
folks. I think that other fellow had a gun on him
and had already taken the money before I came
back in the station. I think that guy forced Larry
to go with him.”

He added that when Larry was asking him for
permission to leave, the boy had averted his eyes
and glanced repeatedly at the register. Thinking
back on it, he believed Larry was trying to tell him
something. He also felt that Larry had probably
saved his life by going with the other fellow.

“The fellow must have pulled a gun on Larry,
thinking the kid was alone. When he saw me com-
ing back, he was trapped, so he ordered Larry not
to tip me off, and to find some excuse to go with
him. He took Larry as a hostage rather than risk
his giving the alarm if he left him here.”

Roland’s daughter had gotten a good look at the
robber-kidnap suspect. She had taken particular
note of him because she was somewhat annoyed at
the way he hovered within earshot while she was
on the telephone. Putting together the recollections

Nevada police had an odd clue in slaying of young Larry, a
dragon-decorated jacket that led them to prime suspect

of the station owner and his daughter, police were
able to compile the following description of the
young chap who had left with Larry Waters:

About five feet, eight inches tall, between 120 and
130 pounds, with a lean, wiry build. He had wavy,
dark brown hair and a longish face with a jutting
jawline. He was wearing blue denims and a dark
blue Windbreaker, the back of which bore a flam-
boyant Chinese dragon embroidered in scarlet.

The witnesses could not be sure about the blue
sedan, but they thought it was about a 1955 model,
either a Chevrolet or Oldsmobile. Roland recalled
the license plates bore orange numbers on a red
background, from which the deputies deduced it
was registered in New Mexico.

After an interview with the missing youth’s wor-
ried family, the deputies returned to headquarters
and soon afterwards an all-points bulletin was issued
for Larry Waters and the man believed to be his
abductor. During the first few hours following the
alarm, hope was held that the captive youth would
momentarily be found, or reported from some iso-
lated region where his kidnaper may have released
him, once he felt it was safe to do so.

By nightfall, the investigation was being pressed
under the direction of Captain Kenneth Mitchell
and Detective Robert E. Wilson of the sheriff's of-
fice. Their inquiries had established that Albert
Lawrence Waters, better known to his friends as
Larry, was indeed a youth of impeccable character.
He had graduated with honors the previous June
from Livermore High School and won a scholarship
to Humboldt State College, which he planned to en-
ter in the fall. He had taken the job at Roland’s
filling station, where a younger brother also worked
part-time, to earn extra money for school. His fa-
ther had been killed in World War II and his moth-
er had remarried, happily.

Any lingering doubt that Larry had been forced
to leave against his will was dispelled when an ex-
amination of his room at home disclosed that all his
clothes and possessions were there. He had gone
with nothing but the clothes he was wearing when
he left home that morning—levis, white shirt and
sneakers. A canvass of his friends, and his family,
failed to produce any knowledge of any friend of
Larry’s who remotely resembled the driver of the
blue sedan with New Mexico tags.

The story of the youth’s disappearance was re-
peated several times on radio and television on
Wednesday night. But by mid-morning on Thurs-
day, investigators were still without a single report
on the case. Captain Mitchell now feared the worst
had happened.

“His folks are still expecting to hear from him
any minute,” he told Captain Frank Madigan, chief
of detectives, “but he’s been gone nearly 24 hours

now, and my guess is he won't be calling at all. I
think we're going to find him dead somewhere by a
highway.” :

Late Thursday, Larry’s parents made a public ap-
peal to the boy's abductor, promising not to prose-
cute if Larry was released without harm. “We'll just
consider he was taken for a little ride,” they said.
“There won’t be any questions asked. All we want
is for Larry to come home safe.”

But even as this appeal was being broadcast by
radio stations in the area, the sheriff’s office re-
ceived the shattering news everyone had been fear-
ing. It came from Reno, Nevada, 200 miles across
California and the Sierra Nevada Mountains. The
primary source of the ugly report, ironically, was
an Oklahoma tourist seeking to show the beauty of
nature to his ten-year-old son.

Just before sunset that Thursday afternoon, the
Oklahoman had stopped his car near Painted Peak,
west of the town of Wadsworth some 20 miles east
of Reno on U. S. 40. He got out of the car and
climbed an outcropping of rock so his son could get
a better view of the spectacular sunset over the
rugged gorge of the Truckee River far below.

The boy suddenly cried, “Hey Dad, look at that
man lying on those rocks over there. He looks like
—he looks like he’s dead!”

Washoe County deputies who reached the scene
less than an hour later immediately recognized the
dead “man” as Larry Waters from the descriptions
they had heard repeatedly in the past 24 hours. He
was lying on his face, partly on his side, sprawled
among rugged boulders about 100 yards from the
highway.

He was shot twice in the back of the head. His
arms, crooked at the elbow, were outflung behind
him. He was wearing levis, white shirt and sneak-
ers. His wallet, emptied of money, contained identi-
fication which confirmed he was Larry Waters.
There was $1.02 in loose change in a side pocket of
his pants. They estimated he had been dead for
about 24 hours. That meant that he and his slayer
must have driven directly to the death scene from
Livermore without wasting any time on lengthy
stops. It also meant he must have been killed within
a couple of hours of the time Alameda County sher-
iff’s men were called into the case.

Near the body, the Washoe County deputies
found a .25 caliber cartridge case, which jibed with
the small-sized bullet holes in the victim’s head.
Blood evidence indicated he had been shot where
he lay, not transported there after being wounded
elsewhere. His wrists bore rope burns, but no rope
could be found anywhere in the vicinity.

Reporting by telephone to Captain Mitchell in
Oakland that night, Chief Criminal Investigator
William Driscoll, of the Washoe County sheriff’s of-

fice said, “It looks like the killer marched him over
to the ledge, probably with his hands tied behind
him. He made him face the rocks, then shot him in
cold blood—Chinese execution style. The body al-
most tumbled into the river, but not quite. The
killer could have pushed it over, but he didn’t
bother. ;

“This fellow must be a (Continued on page 63)

Thayne Archibald, 20, told Nevada police, “I'd rather
shoot myself—if I had a gun, than go back to prison.”


‘Where’s the gun?” Chief Still asked
him.

“ft don't have one,” the suspect said
sullenly. But as the chief walked to-
ward his car, he shrugged, apparently
changing his mind. “Okay,” he said then,
“you'll find it in the jacket on the back
seat.”

Chief Still pulled out the jacket and
extracted a .25 automatic from the
pocket, fully loaded. The chief had im-
mediately noticed the youth’s resem-
blance to the suspect described in the
kidnap-killing of Larry Waters.

“When did you leave Reno, fella?”
Chief Still asked casually.

The youth seemed startled momen-
tarily and he quickly averted his gaze
from the chief’s eyes. For a few seconds
he said nothing, then, once again, he
shrugged resignedly. “I guess I’ve had
it,” he said at last. “I’m your boy.”

In the next breath he admitted he had
killed Larry Waters in Nevada after
forcing the youth to accompany him in
the flight from Livermore. He said his
name was Thayne H. Archibald, 20 years
old. His home was in West Roy, Utah.

At the Baker police station he told
his story in considerable detail. He said
that on the morning of the 26th of Au-
gust he decided he wanted to go home.
Broke, he decided to pull a job.

He pulled in to the Livermore gas
station “and told the guy to fill up the
tank. He had determined to stick up the
place, “but this girl came in to make
a phone call.

“] waited till she left and the kid
came in to get his money. That’s when
I held him up. I made him hand me the
money from the till. First I took seven
bucks from his wallet. He was scared.

“Then I saw the big guy, the owner,
coming in. I told the kid to act natural
and tell the guy we were going out to
look at some tires or something. I waited
till he got in the car, then I got in and
drove three miles outside town. Then
we switched places. I made him drive,
and I got in back, holding the gun on
him. I didn’t figure on hurting him. I
just wanted him as a cover till I got out
of town. I told him that and he calmed
down. We even got pretty friendly.

“I made him drive right through to
Reno and on past Sparks. We got some
sandwiches and coffee at a little joint,
then we drove down the road a few
miles and pulled up on the side.

“We were sitting there eating, when
this Larry suddenly jumped out of the
car. He started to run over the hill.

“Well, I don’t know what actually
made me do it, but I stepped out and
shot twice, and he tumbled like a rab-

OUT sugitive

WANTED rewards.)

me mp eus ORE ds been positively identifie ot
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Identity of Readers Who Furnish Information teedin yg”

bit. .. . I got back in the car and drove
on into Utah.”

A few days later he left Utah, worked
briefly on a ranch near Tuscarora, Ne-
vada, then took off again, heading for
Oregon. When he was broke again, he
tried the stickup in Baker.

Subsequent investigation showed that
the pint-sized killer had been in trouble
with the law from the time he was nine,
when he was first picked up by juvenile
authorities. At the age of 11, he stole
a panel truck in Ogden, Utah. A few
years later, he stole $3,000 from an office
in Ogden Canyon, for which he was sent
to the Utah State Industrial School. In
1956, he escaped, and was recaptured.

In February, 1957, in Deschutes
County, Oregon, he got a three-year
sentence for auto theft. He was released
from the Oregon prison on May 29, 1959,
just about three months before he killed
Larry Waters.

After he had completed his confes-
sion in an attitude of utter casualness,
Chief Still asked him: “Aren’t you even
sorry for killing that boy?”

Archibald reflected for a moment, as
though it was something he hadn’t
thought about till then, and finally said
offhandedly, “Yeah, I’m sorry.”

His next question showed he had
probably been thinking of something
else, ‘“What’s the death penalty in Ne-
vada, chief?” re

Still told him it was the gas chamber.
Archibald shrugged. “I’d rather that, I
guess—or shoot myself if I had a gun—
than go back to prison.”

Washoe County officials in Nevada
were not buying all of Archibald’s ver-
sion of the shooting. He could not, or
would not, explain the rope burns on
Larry Waters’ wrists. He insisted he had
shot Waters while the boy was running
away, yet the powder burns proved he
had been shot at close range.

What about the blue jacket with the
Chinese dragon design on its back?
Archibald told him they would find it
in his room at his home in Utah, and
that was where the sheriff of Weber
county found it.

Archibald was brought to trial in
Reno in April, 1960 and on the 12th of
that month he was found guilty and
sentenced to die for the murder of the
young California gas station attendant.

Appeals and other legal actions, how-
ever, delayed his day of reckoning for
nearly a year and a half. Opponents of
capital punishment strove to have his
death sentence set aside. In July, 1961,
a Nevada State Prison psychologist re-
ported that he had found the condemned
youth to be “an idealistic, lovable per-
son” unlikely to commit further crimes.

But the forces of justice in the state
apparently were not impressed. At 6:21
on the morning of August 23, 1961, ex-
actly two years from the day he had
held up the Livermore gas station and
abducted Larry Waters, Thayne Archi-
bald went to his death in the gas cham-
ber of the Nevada State Prison at Car-
son City.

The prison psychologist was present,
and the condemned man’s last act was
directed at him. Just before the fatal
pellets were dropped, Thayne Archi-
bald winked at the man who had called
him idealistic and lovable. oo4¢

Eprror’s Note:

The name, Tom Roland, as used in
the foregoing story, is not the real
name of the person concerned. This
person has been given a fictitious
name to protect his identity. j

ates soedstateai Aided

Too Young to Date,
But Not to Die

(Continued from page 21)

Norfolk Junior High girl telephoned po-
lice with gravely disturbing information
after hearing a news broadcast about the
search for Connie Padgett.

“My teenage daughter also posted a
baby-sitting notice on that billboard at
the laundromat,” related the caller. “At
about 6:30 last evening, we received our
first call since it was put up several
months ago. I answered the phone, and
the man on the other end of the line
said he wanted a sitter. When I com-
menced asking questions, the man be-
came abusive. He made several nasty
remarks, so I rang off.”

Returning from his job while the de-
tectives continued their interrogation of
Mrs. Padgett and her other children,
Connie’s father told the officers:

“If my daughter was not in some kind
of trouble, I know we’d have heard from
her. I know that if she could have gotten
to a telephone, Connie would have called

Ss.

Padgett added’ that his daughter was
“too young to date,” and had shown no
more than a normal interest in boys for
a girl of her age. On Saurday nights,
Connie usually went to teen dances at
Granby High School, where two of her
brothers were enrolled. But she always
was accompanied by one of the older
Padgett boys. Sunday nights, she at-
tended youth meetings at the Bayview
Congregational Church, where she sang
soprano in the choir.

An hour after an official missing-per-
sons report was broadcast, police learned
that the automobile in which Connie was
last seen alive was a stolen car. The
black Chevrolet sedan, whose license
number Connie’s brother had jotted
down, had been taken from in front of
its owner’s home a mile from the Padgett
residence between 7:30 and 9:15 the
night before, it was revealed.

“That probably accounts for the fact
that the girl’s abductor failed to keep
his first appointment to meet her at the
laundromat,” suggested Captain Grant.
“When he first phoned, just before 7:30
p.m., he must have been planning to pick
up a car, providing he was able to con-
tact one of the schoolgirls who adver-
tised their baby-sitting services on the
public billboard. But he didn’t allow
himself time to find a car with the key
in the ignition, and had to call back to
explain that he would be late.”

Fear that Connie had met with foul
play increased before noon, when the
abandoned Chevrolet was found in a
parking lot near Azalea Garden School,
less than four blocks from the Padgett
home. Although the owner had not
checked his mileage meter or gas gauge
before the car was taken, he nonethe-
less expressed the belief that the vehicle
had been driven for’ a considerable dis-
tance before being abandoned.

A thorough examination of the recov-
ered car failed to turn up any clues to
Connie Padgett’s fate, or the identity of
the thief, however. As far as the police
could, determine, the sedan had been left
in the parking lot near the missing girl’s
school sometime between midnight and
10 a.m. on Tuesday morning.

While peace officers throughout an
ever-widening area continued their
search for the third Norfolk child to be

abducted in six weeks, Connie’s older
brother conferred with Detectives Reid
Carawan and C. F. Sanders. Slowly fab-
ricating a composite picture of the man
seen driving off with Connie, the two

“officers finally came up with a likeness

which young Padgett agreed was almost
photographic in detail.

Norfolk Detective Lieutenant S. W.
Sykes, a veteran homicide investigator,
went on duty at 3 o’clock Tuesday after-
noon. By this time, copies of the missing
teenager’s class photo, and the composite
sketch of the man suspected of kidnap-
ing her, were in the hands of every offi-
cer in the city who had checked in for
duty. Other copies were being wire-

photoed to police in outlying areas. ‘

Young Major Padgett had already spent
hours checking through police mug shots,
in a vain attempt to pick out the driver
of the stolen sedan.

At 4 p.m., Lieutenant Sykes found his
partner, Detective L. D. Baum of the
robbery detail, standing in front of the
bulletin board in the Detective Bureau.
Baum was staring thoughtfully at the
pen-and-ink sketch of the kidnaping sus-
pect which had been composed by Cara-
wan and Sanders after talking with the
missing girl’s brother.

“Look familiar to you, does he?” Sykes
inquired casually.

Baum continued to study the com-
posite picture in silence for several mo-
ments. Finally, he turned to his partner
and said, “Well, there’s the same dark
hair and high cheekbones, but the guy
you’re probably thinking about was a
much younger man and he wasn't
dressed in a T-shirt and faded blue
slacks.”

Lieutenant Sykes pointed out that a
criminal cagey enough to use a stolen
car in which to abduct a victim would
probably have taken the precaution of
changing his clothes—once he realized
he’d been seen by the victim's brother.
“Especially if he happened to have got-
ten blood on his clothing during the
brief time that he was with her,” Sykes
added significantly.

“Yeah, and we've got to remember
that to a boy of 17, any man a few years
his senior usually appears much older
than his actual age,” Baum agreed. “It
was dark when young Padgett saw the
man drive off from the laundromat with
his sister. In the shadows, he could have
ov to be in his late 20s or early

ays

Turning from the bulletin board, both
detectives hurried on to the office of
Captain Grant, where a score of harried
investigators were coming and going
with reports from other men assigned to
the city’s latest search for a missing
child. On their way, they stopped at
Sykes’ desk to pick up a copy of a writ-
ten report on their investigation into a
routine mugging complaint that had
come in by telephone the night before.

Handing this report to Captain Grant
after calling the detective chief aside
moments later, Sykes explained:

“Baum and I went out to investigate,
after this fellow phoned headquarters
from a service station at Bayview Boule-
vard and Tidewater Drive at 11:15
last night. When we got there, we found
him wiping blood from a minor scratch
on his forehead. He told us he’d been
driving west on Westmont Avenue, a
couple of blocks away, when he saw a
man lying in the street next to the curb.
He said he stopped and got out to help
the man. As he walked up, someone
jumped him from behind. The ‘injured
man’ leapt to his feet. The three of them
tussled. The victim’s wallet was taken
and one of his assailants extracted $4

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“Francine came over to spend the
night with me and told me all about it,”
the girl stated. “Then she said she was
going to kill them.:-That way she would
have the money she needed and could
do what she wanted. I thought she was
just sort of blowing smoke, until it hap-
pened.”

She related that Francine had left her
house around one o’clock in the morn-
ing to go home. When she returned, she
was covered with blood and said she
had killed both of her parents. »

“We had to figure out something,”
the girl said. “We knew she had to get
rid of her clothes and get some: clean
clothes, so we went to her house. She
got the clothes and then came back to
my. house. We thought it would be best
if she did not discover the murders until
morning, so we took her clothes to a
laundromat and washed them and then
came back. In the morning, Francine
went back to her house and then came
out screaming that someone had killed

‘her parents.”

When Francine Stepp came to Still-
water the following day for the estate
hearing, she was taken into custody.

Confronted with the statement given
by her girlfriend and the evidence pro-_
vided by the state crime lab, Francine

Stepp.confessed that she had killed her
: parents.

In a lengthy statement, she gave the
detectives a detailed account. of what
had-taken place: She related that she had

used her father’s. ,22-caliber pistol to -
-shoot him, but in her excitement, she

had emptied the gun into the wall. Then,
using a butcher knife she had picked up
in the kitchen, she stabbed her mother to
death and then stabbed her father, who
was still breathing but unconscious
from the bullet wound. Later, she had
thrown the gun into Lake Carl. Black-
well. iene
With seemingly little emotion, Fran-
cine concluded her statement by saying;
“T thought it was the only way out, but I
guess I made a mistake.” 20)
Charged with two counts of first-de-
gree murder and following psychiatric
examinations, Francine Stepp was taken
to trial before Special Judge Lois Bel-
den on October 3, 1988. With the state
ments made by Francine Stepp.and her
girlfriend admitted iftto evidence as well

as testimony from detectives and state

crime lab technicians, Francine was
found guilty. Judge Belden imposed two
life sentences... at Yaeuily a4

Francine Stepp’s girlfriend éntered a
guilty plea to charges of withholding ev-
idence and to being an accessory after

‘the fact of murder. She received a 10-

year sentence to be served at the Lex-
ington Department of Corrections: @

Sentence to Death

: from page 14

drove off to the city morgue where an
autopsy would be performed. It was an
obvious stabbing, but an autopsy would
have to be performed to make the cause
of death official and to determine just
how many times the victim had been
stabbed. '

A lab crew member started searching
the grounds near the sidewalk. In a
clump of grass he found a sheath. It was
empty but it had the name and address
of a man on it. Although the address
was a Colorado one, the crew members

still thought it could be related to this.

knifing. Leonard took the knife from the
lab technician and placed it in a plastic

bag. He and Dillard then left the scene.

to return to the detective bureau. »
The first thing the sleuths did was ob-
tain the telephone number for the Colo-

then get to his Colorado home in such a

ere

i

short span of time. ea Tes
With this man ruled out as a suspect, '

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1 Name
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“and since he had been the only suspect .

so far in the investigation, the detectives _
could only hope that the lab crew would | c

find some other physical evidence that’ -)

would give them a lead in this vicious.

" murder. Without it, the killer could very

well get away. . Se
The only other thing the sleuths could
do at this time was follow up om the vic- '
tim’s car. The bus company:Tepresenta-
tives had told them that Frances’ car
was not parked in its usual ‘spot and:that
they didn’t see it anywhere..Car trouble ;
is something that happens to everyone
from time to time, so it was possible the
victim had arrived at work in.a taxi this
particular morning. But the detectives

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man was at home so that ruled him out
as a suspect immediately. Probers knew
it would have been impossible for the
man to kill the shuttle bus driver and

Vegas and found out that none. had made
a pick-up at Frances’ home. ey

This could only mean the murderer
had stolen her car as well as. her life..

| [| Name ‘ it ‘
y Aséross_—__—— wiki. 2
Clty : State Zip | Bee
|

fe eee

Inside Detective 61


or

The detectives obtained the license,

plate number of Frances’ car from the
motor vehicle department computer.
They already had a description of the

auto, which had been furnished by the -

company representatives. A broadcast

on the'car was put out for all of Nevada.

When the lab crew returned from the
crime scene, one of the members report-
ed to the detectives’ office. When the
detectives saw him, a glimmer of hope
shone in‘ their eyes, but that glimmer
was short-lived, The sheath represented
the only evidence they had'been able to
find; they had.come.up dry:the rest of
the way. There was simply’nothing new
to report. so -sgoys: rippin ts

The sheath seemed to be a completely
worthless piece of evidence. So the de-

tectives were without:¢lues. They had

no direction in which to go: They feared
that the person who had so brutally
knifed Frances Maves would get a free
ride. It was horrible to think what he had
done to her and it was just as horrible to
think what he might do to someone else
if given another chance..

The morning passed with nothing
new turning up. At mid-afternoon, a call
came into the detective bureau from a
patrolman who works the Jean area of

4

Clark:County. Metro has jurisdiction
over all of Clark County with the excep-
‘tion.of North Las Vegas and Henderson,
which-have their own police depart-
ments.:That patrolman: had spotted
Maves” ‘car near a casino in this fairly

tural area of the county. Ironically, Jean .

is the location of one of the state prison
system facilities. Cpa
«1A tow truck was dispatched to bring

the auto-into Las Vegas where it would

be placed in the police impound lot.
Here the lab team would again go to
work in:the search for clues as to the
identity of the killer. It would take more
than an hour for the tow truck to get'to
Jean and bring the car back because the
little. town is some 30 miles from Las
Vegas.
_The*detectives were in the impound
lot with the: lab team waiting when the
car was brought in. The lab members
immediately went to work while the
sleuths watched. There was blood on the

steering wheel. The lab technicians:

frantically looked for a knife inside the
car. If they could find a dagger it could
be dusted for latent fingerprints and that
could be the key to the case.

But there was no knife to be found,
Again the search for clues had’been

fruitless. There was still nothing: that
Detectives Leonard and Dillard could
use in finding the trail to the killer. And
there was still nothing to stop this homi-
cidal maniac from practicing his craft
again.
The following morning when
Leonard and Dillard checked into the
detective bureau they found the prelimi-
nary autopsy report on Frances Maves
ready. According to the report, Frances
Maves had been knifed eight times, and
any one of the stab wounds could have
been the fatal one. ae
While every human being is born’ to
die and everyone accepts that fact, this
had to have been among the worst ways
to die. Frances Maves was a young,
healthy woman. She should not have
died so soon and, certainly, not in this
manner; | Bae
The detectives vowed to Step up their
efforts to find her killer. They decided to
go to the Streets and try their luck there.
There was always the chance that one of
the stoolpigeons had a handle on the sit:
uation and just hadn’t come forward yet.
The sleuths spent the morning
spreading the word around the streets of
Las Vegas in the hope of coming up
with a quick solution to the case. But the

~“?'m sorry dear. But, after those years In prison, this is the only way | can communicate!”

62 Inside Detective

more stre

more pes:

approach.
always b
they had
no idea «
were Sat
told if an
The n
checked i
vowing |
derer. Nc
ported, s
killer had
been suc
his next ‘
autopsy 1
reports a!
torist wh
There si
could he!
An ho
telephon
was the 1
he had th
-ately nee
parently
been unz
tectives
The re
Los Ang
man in L
ative tol
Reno an
The n
was 25-'
who hac
prison i
years be
dyed ore
The d
the Ren
out the s
ules was
it appear
Frances
ties. At
been an
a half he
The p
gone the
Reno pc
search tl
fugitive.
The fi
did was
trols in t
officer r
all, how
The o
Baal wa
directio:
been he:
The I:
drove in

B&AL, Thomas,

LAS VEGAS, NV.
OCTOBER 25, 1988

A new day was booming in the Las
Vegas Valley on February 26, 1988. The
folks who live there, woke up yawning
and began preparing themselves for
work.

It was just 7 a.m., ; but Frances Maves
was already on the job. The 34-year-old
woman was employed as a shuttle bus
driver. She drove tourists from the
Hughes Air Terminal for flights over the
Grand Canyon in neighboring Arizona.

She was busy. washing down her bus -
outside the terminal when suddenly a_

man ran over to her blind side and stuck
a knife to her throat, He dragged Fran-

ces to her car which was parked behind |
the bus and told her where. he wanted to .

be driven. Frances refused and pushed

his head down, slamming it against the: - oN
. Thomas Baal told probers he killed
the victim because he wanted to -

car.
“You shouldn’t have done that!” the
assailant screamed. ‘Now you’ll pay. I
sentence you to death!”
The attacker shoved Frances against
the back of the bus. He then plunged
the knife into her and blood spurted

from her body. He withdrew the dagger »

and stabbed her again. Eight times he
plunged the knife into Frances Maves.
When he saw she was no longer breath-
ing, the assailant stuck the knife in his
belt and rolled Frances’ body under the
bus.

Ci

start his own brand of terrorism.

He dashed back to her car and sped
away. There was blood on the pavement
and under the bus where Frances’ body
had been dumped.

. ~ It wasn’t long before a motorist driv-

‘ing through the terminal complex
passed the bus. The driver slammed
on the brakes upon seeing blood. He
backed up his vehicle and climbed out

of the car to get a closer look. The driver

bus and got on his knees for a closer
look. That’s when he saw the sliced-up
body and pulled his head back in shock.
He stood up and looked around.

Not far away was a pay telephone.
The man ran to it and dialed the 911
number for the Las Vegas Metropolitan
Police Department. He told the police
operator what he had just discovered.
He described the cut-up body, saying it
was the most sickening sight he had
ever seen.

The operator told him to stay at the
scene until officers could get there. Uni-
formed patrolmen who had been cruis-
ing the area were the first to arrive after
receiving the radio broadcast. Detec-
tives Bob Leonard and Tom Dillard

' were dispatched from the Metro head-

quarters to the terminal which is several
miles away. They arrived at the scene
some 20 minutes after the uniformed of-
ficers. Right behind them was a lab
team. While the lab personnel went to
work searching for physical evidence,
Detective Leonard took a statement
from the man who had found the bloody
body.

The patrolmen had already pulled out
the body from under the bus and cov-

ered it with a blanket. Representatives |

of the bus company had also been
called in. They identified the victim as
Frances Maves, a woman who had been
an excellent employee. The company
representatives were saddened as the
ambulance containing Frances’ body

(Continued on page 61)

In Vegas, warped justice from the carrot-top killer to his victim:

“i SENTENCE

YOU TO DEATH!”

: Court observers sat rapt as the defendant laid
out a chilling story of wanting to kill again and
again | and eteriing his own brand of terrorism.

14 Inside Detective

PSHE De Teenve MAGAZINE

Mance = 1987

-

saw the blood coming from under the .


ic defender
iths trying to
‘ied to use le-
, if nothing
’s life. In his
e might even
technicality.
ed. Seaton
d Baal’s Sep-
ving ever so
'¢ held in the
e John Men-

, though.

cing a death
he advice of
pear before
plead guilty
S was not a
Seaton had

vefore Judge
-aded guilty
ng story of
and, also, of
shocked the

~ lowing

.. --and of
a way I’m

e parole sit-
ind of para-
me back (to

ing Frances
1 sorry, but

d then went
“You won’t
you,’ and I
y’ll give me
ive you.’ I
<ill because

S just hap-
ise he came
his way out
‘king mari-
eaving Las
cause there
thered my
ning a bus,
f, ‘Maybe I
three years
t wanted to
Hopefully, »

‘le the vic-
| drove it to
hand.” He

ted by
in behalf of

Baal was to try to plead him innocent by
reason of insanity. But that was shot
down when all three psychiatrists who
examined Thomas Baal found that he

was mentally competent to'stand trial °

for the murder of Frances Maves.

“‘He sounds like he’s in control of his
faculties,” said D.A. Seaton in court. “I
think he sees deeper into himself than
we do.”

While there would be no trial, there
would still be a penalty hearing. Nor-
mally, the convicting jury in a first-de-
gree murder case decides the
punishment after a penalty hearing. But
with no jury, in this case the procedure
would be different.

The three-judge panel nade up of

Judge Mendoza and two jurists from
other jurisdictions in the state would

preside over the penalty hearing in Oc-
tober. Their choices for Baal would be
death by legal injection or life in prison,
with or without the possibility of parole.
Seaton said he was still going for the
death penalty, guilty plea or no guilty
plea.

‘After the guilty plea was made and
accepted, Detective Leonard com-
mented that it was the orange hair that

~ made the capture of Baal possible.

“That officer in Reno temembered
him’ only because he stuck out in a
crowd with that hair. Otherwise, he

"would have blended in and gotten away.

There is no telling how many more peo-

_ple he would have killed.

“The scabbard turned out to be im-

portant, too.”
On October 25, 1988, Baal was sen-
tenced to death by lethal injection. @

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Inside Detective 65


Weather

‘aMit | 2x ¢
“eluent Rain likely today,
3 i NS Lat windy Memorial Day
4 gh we sort ,
weakens sti Jie: : . See Page A-9
iVol. 126No. 10° - 6 Sections — 64 pages $1.00

aor poner f afi sic J ihe

inmat @ : saysd [
drug abuse Is.
what led him:

to kill woman.

By SEAN WHALEY" "5 995" itt
“Appeal Capital Bureau ud pene ern

! certain
-_Convicted .murderér “Thomas —
Baal, facing a sentence of death by ~
lethal injection in five days, said
Saturday his abuse of drugs is what

oe

led hirn to stab and kil 2 Las-Vegns= (laa

woman two years ago.

: “TD am* not a! killer;’* Baalé said
‘during an interview at’ Nevada State
Prison.’“1° was" just lost at” that
time.” ©=* i He 2 Me Peay Se" aR
| The 26-year-old’ Chicago: ‘native,
‘his arms scarred’ from numerous
suicide attempts, said-he willnot
ask for*a delay’ in ‘his execution
scheduled for’ Friday at ‘five —
utes past midnight. adi

“ET. just want: to go right’ on
through with the execution,” he
said: “T want to get it over with.

“fm tired of life.”

Baal was sentenced to death for
the February” 1988 murder of 34
year-old Frances Maves outside of
the Hughes Executive Air Terminal.
Baal said he had hitchhiked from
Colorado and was just passing
through Las Vegas when he mur-
dered Maves. Baal said he wanted
money hy: travel to —. and

a

“(Gee BAAL, Page A-10)

f execution:

Convicted murderer Thomas Baal is sentenced to die by lethal injection Friday.

of convicted murderer Thomas

Appeal photo by Kit Miller

| Thomas Baal.
sentenced to.
die by lethal
injection

By SEAN WHALEY
Appeal Capital Bureau aye fs

_... A state deputy attorney general
said Friday he is not aware of any
efforts to halt next week’s execution

Bagh ete sae se Svar es ie’

“I am aware of no actions by
anyone, including Baal himself,”
said David Sarnowski, a deputy
attorney general, in the criminal
division. Pen +

An execution dete of June-1. has
been set for Baal at the Nevada
State Prison after the inmate eopest
that further appeals on his behalf be |
dropped.

2 ee |

Baal, 26, was sentenced to death |
by lethal injection for the. 1988
stabbing death of a woman bus
driver in Las Vegas. His execution
date was affirmed Thursday by
Clark County District Judge John
Mendoza, who ruled Baal was sane
and competent to waive his remain-
ing legal rights.

Glen Whorton, ‘spokesman for the
Nevada Department of Prisons, said
the execution will be carried out ati
12:05 a.m., just a few minutes after!
midnight, unless a stay is granted. [

(See EXECUTION, Page A-10)


PE STEP PDA RE IDELE
.

little more than two miles out of town =. including the statement from the rela-
when he spotted a hitchhiker on the _, tive, and got the case bound over for tri-
shoulder of the road, his thumb high in. * al..Leonard and Dillard testified at that

the air. Many people. hitchhike, but few’

have orange hair as did this man. The

officer sped his cruiser over to him,

brought it to a hasty halt and jumped out

with his service revolver drawn. It was
Thomas Baal, all right, and he offered
no resistance when the officer placed th
handcuffs on him. a
He was taken to a Reno jail where he
would be held for Metro. Reno is some
500 miles north ‘of Las Vegas.
Detectives Leonard and Dillard were
notified by telephone that Baal was in
police custody in Reno. They said they
would fly to Reno immediately to ques-
tion Baal and bring him back to Las

Vegas. Extradition proceedings would

not be necessary since Baal was being
held in Nevada. ° :
Baal had actually done the police a

favor by returning to the Silver State i

rather than staying in California.

Upon confronting Baal, the detectives
gave him his Miranda warning. At the
time, he exercised his right to remain si-
lent. Seeing they were getting nowhere

with him, they loaded him into the air-

plane and brought him back to Las
Vegas. He was booked into the Clark
County Jail on a charge of open murder

and held without bail since it was a case} “

of capital murder,

' The fact that Baal was remaining si- |

lent didn’t make much difference to the

detectives. They had the statement from.’

his relative in Colorado, and they also
had the sheath which linked the two.

The case was placed in’ the hands of
Deputy District Attorney Dan Seaton
who handles many of the county’s death
penalty cases. And that is what Seaton
had in mind for Baal. -

But, first, he would have to work the -

case through the judicial system. The
first step would be an arraignment and
the scheduling of a preliminary hearing.
At that hearing, the presiding justice of
the peace would decide whether Seaton
had enough evidence to warrant a trial.

That would be no problem, even if :

Baal’s relative decided to withdraw his ~

statement. The sheath itself would con-
stitute enough evidence to show proba-
ble cause and get the case bound over to
District Court for a jury trial.

Once in front of a jury, though, Seat-
on might have problems if that state-
ment was to be withdrawn and the
prosecutor knew it.

Since Baal was being held without
bail, he was granted a speedy prelimi-
nary hearing. Seaton used his: evidence,

64 Inside Detective

hearing, linking together the chain of
./ evidence.

~ But the jury trial was still ahead and,
“ina way, it presented quite a challenge
-for Seaton, who won several death pen-

That's how knowledgeable 1
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alty cases in 1988. He is a firm prosecu-

_ tor who believes strongly in capital
' punishment. On his desk is a miniature

electric chair with the figure of a man
Strapped into it. The surprise is that,
when a stranger picks it up for a closer
look, he. feels a slight electric shock.

The shock is not enough to hurt anyone,

of course, but it lets it be known that

Seaton favors death for killers. Thomas
Baal fell under that category.

The defendant’s public defender
spent the next several months trying to
avoid that very thing. He tried to use le-
gal technicalities which, if nothing
more, could save his client’s life. In his
wildest dreams he hoped he might even
be able to spring him on a technicality.

But all attempts failed. Seaton
stopped him every time, and Baal’s Sep-
tember trial date was drawing ever so
near. The jury trial would be held in the
courtroom of District Judge John Men-
doza.

The trial was never held, though.

Baal, knowing he was facing a death
penalty and going against the advice of
his attorney, asked to appear before

Judge Mendoza so he could plead guilty.

to first-degree murder. This was not a
plea-bargaining situation. Seaton had
offered no deals.

When Baal was brought before Judge
Mendoza in chains, he pleaded guilty
and then laid out a chilling story of
wanting to kill some more and, also, of
wanting to be caught. He shocked the

- packed courtroom with the following

story:

“I wanted to start my own brand of
terrorism,” Baal said. “In a way I’m
happy I got caught.”

What triggered all this?

“T just couldn’t handle the parole sit-
uation,” he said. “I was kind of para-
noid. I figured they’d send me back (to
the prison in Hawaii).”

Just before he started knifing Frances
Maves, Baal told her, “I’m Sorry, but
that’s how it’s gonna be.” ,

Baal cleared his throat and then went
on with his story. ‘She said, “You won’t
get very far, they’ll catch you,’ and I
said, ‘I know. Hopefully, they’1l give me
something better than I gave you.’ I
wanted to just go out and kill because
I’ve seen so much.” - se

Baal said Frances Maves just hap-
pened to be his victim because he came
across her as he was making his way out
of town. He had been smoking mari-
juana at the time. “I was leaving Las

Vegas,” he explained, “because there |

was too much light. It bothered my
eyes. I saw this woman cleaning a bus,
and I was thinking to myself, ‘Maybe I
should do what I said I’d do three years
ago.” In my own mind I just wanted to
kill her. I said to myself, ‘Hopefully,
they’ll catch me.’ ”

Baal told the court he stole the vic-
tim’s car after the murder and drove it to
Jean “with her blood on my hand.” He
then hitchhiked to Los Angeles.

One of the legal moves attempted by
the public defender’s office on behalf of


s

ng that
1 could
er. And
3 homi-
is craft

when
ato the
relimi-
Maves
‘rances
es, and
d have

orn .to
ct, this
it ways
young,
t have
in this

p their
ided to
there.
one of
‘he sit-
Ha

ig

ces of
ng up
3ut the

more street people they spoke to, the

more pessimistic they became about this

approach. The reliable snitches who had
always been straight with them said
they had heard about the killing but had
no idea who had done it. The detectives
were Satisfied they would have been
told if anyone knew.

The next morning, the detectives
checked in for another day of work, still
vowing to find Frances Maves’ mur-
derer. No other knifings. had been re-
ported, so there was a good chance the
killer had not struck again unless he had
been successful in hiding the body of
his next victim. They went through the
autopsy report again as well as the lab
reports and the statement from the mo-
torist who had initially found the body.
There simply was nothing there that
could help them.

An hour or two passed before the
telephone on Leonard’s desk rang. It
was the man from Colorado calling and.
he had the lead the detectives so desper-

.ately needed. He said a relative had ap-

parently taken his knife. He said he had
been unaware of this fact when the de-
tectives had first contacted him.

The relative had called the man from
Los Angeles and admitted knifing a wo-
man in Las Vegas. The man said his rel-
ative told him he was taking a bus to
Reno and then hung up the telephone.

The man who admitted the killing
was 25-year-old Thomas Edward Baal
who had recently been paroled from a
prison in Hawaii after serving three
years behind bars. His hair was now
dyed orange.

The detectives immediately contacted
the Reno Police Department and laid
out the situation. A check of bus sched-
ules was made at the Reno end. Again,
it appeared as if the man who murdered
Frances Maves had eluded the authori-
ties. A bus schedule showed there had
been an arrival from Los Angeles about
a half hour earlier.

The passengers on that bus had all
gone their separate ways by now. The
Reno police, however, promised to
search their city for this orange-haired
fugitive.

The first.thing the Reno authorities
did was check with an officer who pa-
trols in the area of the bus depot. That
officer remembered seeing Baal. After
all, how many men have orange hair?

The officer also remembered seeing
Baal walk off and he remembered the
direction in which he walked. He had
been headed for the outskirts of Reno.

The lawman got into his cruiser and
drove in the same direction. He was a

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.. Inside Detective 63


Execution

tees

~~

"Carson City NEVADA APPEAL —Sunday May 27, 1990

PA es

viet

‘ar Oe

' (Continued from Page One) +

Baal has waivered on whether to
go forward with the execution or
pursue legal, appeals. Thursday’s:
hearing marked the fourth time’
Baal, who was convicted of killing’
Frances Maves, 34, has reversed’
himself in court.actions. _ :

U.S: Public Defender Pat Flana-*
gan is planning to meet with Baal
next. pet in the event he one

Baal

his mind again and wants a stay.
Baal had pleaded guilty to first-
degree murder in the stabbing
death of Maves at the Hughes Air
Terminal. The former mental pa-
tient from Chicago said he stabbed
the semnag, after he. sthed her: ir.
money. ee by
Baal’s psychiatric examiners de- .

scribed him as having ‘‘borderline”’.-

i BEB. oe .

Baal is one of $2 ten and one 1

intelligence.

woman on death row in Nevada.
The only four executions in Nevada
since 1961 have come when inmates
have decided to end their appeals
and allow the sentence to be carried
; Out... At Piet Phy Us ches 7

# The state executed two inmates i in
1989, Sean Flanagan and. William

Baal, in a letter “to the editor

ies : it

i 5 ee D A ae

: pe potas
me 3a <3 fe

r

published in a Reno newspaper in
February, said he had formally
waived all his appeals and was
ready to be executed. _ os

“T’m tired of being ruled by pris-
on pigs, or anyone, so this is a
sincere go,’’ Baal wrote in the Reno
Gazette-Journal from the Ely State
Prison. “I’m ‘happy a.
overjoyed to lay down kiss
world goodbye.”

to
and

-(Continued from Page One)

stabbed Maves whenshe resisted. ~
* A high school dropout, Baal said
his use of marijuana and crack
cocaine caused many of his prob-
lems in life. He has quit using
drugs, and said he has refused
offers of marijuana and pills in

prison.
“Drugs kill, ” Baal said. “They
kill you or other people.”

Another of his problems is violent
mood swings, hesaid. * :

“When I get down, I get violent.” bi

Baal spent many of his early
years in detention centers and men-
tal institutions.

If he goes forward with his slant
Baal will become the third death
row inmate in less than a year to be
executed in Nevada. 25

Last. June, two inmates, Sean.
Flanagan and William Thompson,
stopped their appeals and were exe~,
cuted. The past four executions in.
Nevada have come when. inmates,
stopped their appeals. _..,,-

Baal, who said he has become a
Christian, said he is. frightened
about his impending death. | r

“But I’m going to lie down on that
bed and let them stick the needle in
my arm,” he said. “‘I- just hope it,
doesn’t hurt.’’

Baal said his parents and sister,
who live in Mesa, Colorado, just
heard about his intent to go through
with the execution.

“My dad almost had a_ heart
attack,’’ he said.

His mother wants him to change
his mind about the execution, but

as

Appeal Capital Bureau us -.

The room is on the second
story of the northeast corner of
the old Nevada State Prison. ;

It is where Thomas Baal will
die Friday unless he changes his
mind. and revunets a stay of
execution. ya

The room is a tiny cubicle.
Access is through a heavy metal

looks like it belongs on a subma-
rine. Inside is a wooden table
covered with a pad. Eight safety-

and arm and leg straps are in
place.

Through a window is the view-
ing room, where six to nine
witnesses, required by state law,

the press and prison officials will.
also be present.

Glen Whorton, spokesman for

the state Department of Prisons.
said the witnesses will not be

Nevada’ S death chamber .

door with a large wheel: that .

belts lie linked across the pad, ©

will watch Baal die. Members of _ .

of Pe ee
it identified “ahead of time. Infor-
mation about preparations in the
execution room also will be kept
confidential, he said.

Next door to the execution
room are two holding cells for
inmates. Called the “last night”
cells, inmates awaiting execution
_are usually brought in a few days
ahead of. time to have some
quiet, Whorton said... - ne

Inmates can make phone calls
and eat their last meal in the
cell.

The method of execution prior
“to lethal injection was gas, Whor-
ton said. The state switched be-
cause cyanide gas is dangerous
to those who must administer it,
and because the injection is con-
sidered to be a more Gegnibed
yee. he said. ~ 3

The chamber was last “used
June 23, 1989, when Sean Flana-
gan, 28, was executed for killing
two.Las Vegas men. Four days
earlier, William Thompson was
executed for a Reno murder.

Baal said he is an adult and will not |,

waiver. Baal said he changed his
mind about the execution in the past
only because he listened to others.

He said he will meet with U.S.
Public Defender Pat Flanagan once
to talk about his decision, but only

to appease his mother.

“I’m 26 and I make my own
decisions,” he said.

Baal said he made the decision to
go forward with the sentence with a
clearhead. «7
“I chose my own destiny,” he

said. ‘I picked thé path. Now I'll go
on to the next life. Shape i's better
than this one.” ny:

Baal said he took a “chenuian when
he pleaded guilty to the charge of
first degree murder rather than go
through a trial.

“I was hoping for life with pa-
role,” he said. “But I knew I might
get death.”

Baal said he supports the death
penalty, and would want the law
enforced if. anyone ever injesed al
member of his family.

Baal, who is in a cell block at the
prison with other inmates, said he
wants to get to the holding cell next
to the death chamber so he can visit
with friends, make phone calls. and

~ have some quiet time.

He said he would also like to havé
a guitar and tape recorder so he can
‘play music while he waits. .

“] like: hard rock, country and

: _ Western and blues,” he said.

Baal said he has already decided
what he wants for a last meal. gee? E>

“T want’ “all: dark meat osicet

-crispy chicken as greasy as I can

get, * he said. “I want a blueberry
pie, bubblegum ice cream, some
jelly-filled doughnuts and a bunch of
Coke.”

_» If he ever had a chance to leave
prison, Baal said he would never
touch drugs or alcohol again.

“I would start over,”’ he said. ‘I
would get a job, join a band and get
an old lady. Have a few monsters
running around the house.” :


ae

Thomas, white, leth. inj. Nev. (Clark Co.) 63-1990,

THE NEW YorK TIMES NATIONAL/WEATHER monpay, JUNE 4, 1990

y

~

Associated Press —

K iller of Serr a $20 Robbeey’
Is Executed by Injection i in Nevada

CARSON city, Nev, June 3 (AP) —
Thomas Baal, who killed a woman in a

robbery _ because’ ‘she had given ‘him:
only $20, was executed by lethal injec-:
tion early today after opposing his par-

ents’ legal effort to keep him alive...

The 26-year-old convicted killer was
pronounced dead nine minutes after a
mixture of ; three lethal drugs was
pumped through tubes into his arms at
7:05 A.M. as he lay strapped on a table
in the old gas. chamber at the Nevada
State Prison. >

The warden, Pete Demosthenes, said
the condemned man’s last words to
him were “Send my love to my mama
andmypapa. |

The execution came hours after the
United States Supreme Court voted, 5
to 4, to cancel a Federal appeals court
ruling blocking the execution. The ex-
ecution was Nevada’s 5th and the na-
tion’s 129th since the Supreme Court
cleared the way for’ states to resume
use of the death penalty in 1976.

Stabbing of Bus Driver

The condemned man, who stabbed a
bus driver to death in Las Vegas in the
1988 ‘robbery, was described as re-
lieved after hearing of the High Court’s
decision. >

“He was glad it was finally going for-
ward, and he started to make phone
calls to friends and relatives,” said a
prison spokesman, Glen Whorton. —°

The Supreme Court voted just after
midnight to cancel a stay granted Sat-
urday by the United States Court of Ap-
peals for the Ninth Circuit, in San Fran-
cisco. The stay had been requested by
Edwin and Doris Baal of Mesa, Colo.,
over their son’s objections.

The appeals court had held that a

cer Féderal court in Reno had erred
in not holding an evidentiary hearing
‘on*thecompetency of Mr. Baal, who
had a history of mental problems. The
Justices who voted to erase the stay
and allow the execution were William
H. Rehnquist, Sandra Day O’Connor,
Antonin Scalia, Byron R. White and An-
thony, M. Kennedy. Voting to keep the
stay were Justices Thurgood Marshall,
William J. Brennan Jr., Harry A.
Blackmun and John Paul Stevens. —
Mr. Baal was placed on the table 25
minutes before the injection started.
He looked through viewing windows at
the 24 witnesses and spoke to one of
them, Dan Seaton, the Deputy District
Attorney for Clark County, who had
prosecuted him for the murder.

» Inmate’s Brain Damage

Mr. Seaton said he could not tell what
Mr. Baal was saying, even though the
convict slowly mouthed a few words.
After that, the condemned man ap-

‘|peared to talk to himself and then

closed his eyes as the injection started.
The Supreme Court was asked by the

Nevada Attorney General’s office to

cancel the stay. The prosecution’s peti-

tion included a statement from Mr..

Baal saying he was not insane or in-
competent and adding, ‘‘I want to have
this. execution over with so that I can
pay my debt.”

His parents said they were shocked
that prosecutors went to their son’s cell
at the Nevada State Prison to get the

‘statement. »- ee

The parents contended that Mr.
Baal’s long-term mental problems and
brain :damage prevented him from
making.a rational decision about his
appeals.


Friday, February 16, 1990
‘ Reno Gazette-Journal ] 5A

ee ———— To ee —-~ si eae

Ready for execution

I’m on death row in Ely and have for-
mally waived al] appeals; I’m ready to be
executed at the Nevada State Prison
death chamber in Carson City.

This is my third time, and it’s a fina]
agreement to be executed b lethal injec-
tion. I’m tired of being ruled by prison
pigs, or anyone, so this is a sincere go.
I’m happy to die, and overjoyed to lay

But once the judge sets my execution
date, I’ll be happy. If you wish to see
me, then you may, here at Ely, or when [|
0 to death chamber cell at Nevada State
rison in Carson City.

“

Thomas Baal, Ely


Killer gets unwanted execution stay

By BRENDA RILEY . __ Baal, a 26-year-old former men” ordered prosecution and defense

: eee tal patient, seemed somewhat | lawyers to Submit written briefs in |
Associated Press Writer __ resigned when advised of the stay, aden

. bata eg be ont Nevada State Prison Spokesman
CARSON CiPy. Neg. = <A Glen Wharton said. “He reiterated Doris and Edwin Baal of Mesa,
murderer scheduled to die for kill- that he wants the execution to go Colo., said their Son’s long-term
ing a bus driver won an unwanted forward.” mental problems prevented him
Stay Saturday from the 9th U.S, The three-judge panel ruled 2-1 from making a rational decision
Circuit Court of Appeals until the that a U.S. District Court judge in about his a peals. Baal insisted he
court can rule on his parents’ Plea Reno erred by not holding an wanted no tice appeals. “I just
to keep him alive. - evidentiary hearing on the Parents’ want to go die and be ree,’’ he said
The Nevada attorney general’s claim that Baal has suffered brain Thursday.
office immediately appealed to the damage and tried Suicide several is
U.S. Supreme Court to allow the e€x- times: Justice Alex Kozinski dissented,
ecution of Thomas Baal this The court, ruling about 11 hours Stating in the 9th Circuit Court’s
weekend and cancel the Stayissued before the Scheduled 10:05 p.m. 21-page order that there’s nothing
by a three-judge panel of the cir- PpT execution, scheduled a hear. In the record to Support the conclu-
cuit court based in San Francisco. _ ing July 31 in Pasadena, Calif., and sion of the majority,


€T10!
Nevada

aA

Z
f

©) Malis GO Cae infact

Baal could fle
al

11th-hour appeal
to halt,execution ‘

By Mike Henderson/Gazette-Journa!

Death-row poet, musi- |
cian and confessed mur- ,
‘derer Thomas Baal, 25,is
scheduled to die by lethal
injection early Friday
for the 1988 stabbing
death of Frances Maves,
34, a Las Vegas bus
driver. ‘

Knife in hand, he told Baal
her “I sentence you to 88

death,” court records show,.......... °*

“If he was allowed to live, he would)
-continue to be a threat to society,” Las
Vegas Homicide Detective Robert Leon-
‘ard said Wednesday. “He would kill

”

again.
SBaal’s 12:05 a.m. execution, unless he
changes his mind and takes one of numer,
ous appeals he has refused, will come just’
three weeks short of his 26th birthday. He
has a history of changing his mind about’
his guilt or innocence and whether or not
he wants to be executed. | .
“He’s been up and down the whole spec-:
trum,” said David Schieck, his Las Vegas:
defense lawyer. :“Right:now;as:far as I:
know, he’s at the state of wanting to get the
death penalty. If he gets mad at the people.
at the prison, he might change his mind. i
Baal threw a tantrum at prison officials,
Tuesday, smashing a television set in what,
was described as a fearful outburst, but,
Wednesday night, he still planned to ga)
through with the execution.
Nobody has been involuntarily executed,
in Nevada since 1961, according to Cliff;
Young, chief justice of the Nevada Su-~
preme Court. Only four people have been
executed since then. 4
Two of them — William Paul “Bud”
Thompson and Sean Patrick Flanagan —
were executed four days apart last June.;
Assistant U.S. Defender Patrick Flana-]
gan has prepared documents that could;
result in a last-minute stay of execution for:
Baal. Also, a cadre of federal judges is on
standby, should Baal change his mind right;
up until he takes the 13 steps from the last-
night cell to the heavy metal hatchcover of.
the death chamber. A telephone is between:
the rooms. :
The death chamber, formerly the state’s:
gas chamber, has glass windows through

See NEVADA, page 7A’

iller to

a iiiilaidibee. sane,

‘From page 1A

‘ which official witnesses watch the

death, as required by state law.

: The person to be executed reclines

- on a heavy wooden table and tubes
are inserted into the person’s arms
and legs.

Unlike many of the other 52 Ne-
vada death-row inmates, now
housed at Ely, Baal has never had

a trial. He pleaded guilty to the
‘killing as well as armed robbery.

The murder :

A three-judge panel sentenced
Baal to death, and the Nevada Su-
preme Court this year upheld the
sentence. The high court gave this
account of the murder:

About 5:30 a.m. on Feb. 26, 1988,
‘Baal arrived on foot at McCarran
International Airport in Las Vegas.

- There, near Hughes Executive Air-
port Center, Maves was checking
the engine compartment of her

erst America Charter shuttle
us.

Baal told Maves he needed help
and asked for money. Maves gave
him $20. He then pulled a knife
from his pocket and demanded
more money.

She tried to flee, but Baal

' grabbed her and forced her into her
car, which was parked behind the
shuttle bus.

Maves tried to calm Baal down,
but failed. She also failed to get
control of the knife.

According to Baal, after Maves
hit his knife hand, he told her, “You
shouldn’t have done that. Now you
pay. I sentence you to death,” and
he began stabbing her.

A co-worker discovered her,
first aid was given and emergency
help was called. She died at 8:15
a.m. of what a pathologist testified
were multiple stab wounds to the
chest, back and right shoulder,
with the wounds piercing her heart,
spine and both lungs.

Baal fled in the victim’s car,
then ditched it and took a bus to
Reno, according to Leonard, the
Las Vegas detective. Las Vegas po-
lice asked Reno police to meet the
bus as he was changing coaches for
a trip td Colorado.

But Baal wasn’t on the bus. Reno
officers found Baal hitch-hiking
and arrested him without incident.

Three ‘psychiatrists found Baal

May 31, 1990

azette-Journ
fie after midnig

__ Nevada killer scheduled to die

competent to stand trial. His intel-
ligence was assessed by one as
“low normal” and by another as
“borderline.” At least three times,
he has been judged to be
competent.

Maves’ parents, Paul and Kath-
ryn Maves of Wisconsin, had no
comment on the scheduled ¢xecu-
tion, said Kathleen England, their
Las Vegas lawyer.

The victim’s family has filed a
lawsuit against the Las Vegas Air-
port Authority and Hughes Avia-
tion Services Inc., claiming they
failed to provide adequate security
to prevent the murder. England
and other lawyers were in Carson !
City on Wednesday to take Baal’s
deposition in the case, which En-
gland said he gave voluntarily.

Baal, shackled during the depo-
sition, seemed remorseful and de-
termined to go through with the
execution, she said.

The last days

Like several of Nevada’s death-
row inmates, Baal has taken to
writing poetry, one of his efforts
describing the snow as seen from
his death-row window.

Also twice in the last month he
has tried to commit suicide, ac-
cording to testimony given at a
hearing last week in Las Vegas.

There, Baal told Clark District
Judge John Mendoza that he wants
a guitar and a tape recorder so he
can record some of the music he
wrote while on death row. Mendo-
za told Baal the decision is State
Prison Director Ron Angelone’s.
By Wednesday night, prison offi-
cials were still taking the position
that the guitar is against prison
regulations.

For his last meal, Baal has re-
quested something as close as pris-
on officials can get to Kentucky
Fried Chicken, plus mashed pota-
toes and gravy.

Thompson last year had cheese-
burgers for his last meal, sharing
them with guards, and Flanagan
requested only a Pepsi for his last
meal. He then asked to be left
alone with his Bible.

Baal has specified that his per-
sonal effects and his remains be
turned over to his family living in
the Mesa, Colo., area, prison offi-
cials said.

em Be BE
a Fe |

fudge
;

+

py

‘

aa isd

_ Reno Gazette-Journal —
Judges halt Nevada execution

friday
TUNE |

35 cents

Inmate spared
1/2 hours before
scheduled death

By Steve Timko
and Mike Henderson/Gazette-Journal

CARSON CITY — An angry and frus-
trated Thomas Baal was spared — at least
until noon on Saturday — by a three-judge
federal panel 12 hours before his sched-
uled execution early this morning.

The 2-1 vote late Thursday by the San
Francisco-based 9th Circuit Court of A
peals means the court will consider addi-
tional information before deciding wheth-
er a lower court acted properly in deciding
whether Baal is sane enough to decide 1
whether he wants to die. hans

“He’s disappointed that the execution is
not going to be carried out this evening,”
said Assistant U.S. Federal Public Defend-
er Patrick Flanagan, who spoke with Baal
minutes after the court made its ruling.
“He displayed anger and frustration and
couldn’t understand the court process in
his case.”

Flanagan said the 9th Circuit will con-
sider information that was not discussed
during an a t lies v pone hearin
Thursday night, but it might require U.S.

Thomas Baal, 25, was
scheduled to be
executed at 12:05 a.m.
today, but an appeals
court delayed the date
with death the prisoner
said he wanted.

District Judge Howard McKibben to take
additional testimony in Reno about Baal’s
mental state.

Baal, 25, was originally scheduled to die
- lethal injection at 12:05 a.m. today at

evada State Prison. The 9th Circuit re-
ported its decision at 10:30 p.m: At: 10:42
p.m., Nevada Director of Prisons Ron An-
gelone emerged from the prison to‘tell a
group of reporters and potential witnesses
that the execution had been stayed. » |) .,

* Angelone said the pre; ration hag che
rn ge had progressed to the: papa +f
officials were rea e chemicala’thats
would have ended ‘Baal's lifes 3%), x

The prison director has a death warrant ,
for the execution that remains effective
until 11:59 p.m. Sunday. But the 9th Circuit
ruling bars him from using it until at least
noon Saturday.

The 9th Circuit’s ruling capped a‘furious
effort Thursday Bene LA ote stop
the execution. Earlier that, afternoon,

\ 4 he

See ENECUTION, page 124

PPO Rm gi

By Mike Henderson/Gazette-Journal

The woman Thomas Baal murdered
:, would still be alive if Baal had
* received adequate psychiatric help,
his parents said Thursday.

“He was in mental hospitals up
until he was 14, and after that he was
in and out of hospitals until he was
18,” his mother, Doris Baal, said .

* minutes after a Federal Court judge

From page 1A

McKibben disagreed with Edwin
and Doris Baal’s contention that
Thomas was not mentally compe-
tent to refuse federal appeals.

Baal told McKibben several
times via telephone hookup that he
wanted to die.
| “IT desire to be executed,” he told
McKibben. “I onl want to tell my
mom and dad I’m sorry. I still love
them. I just want to go.”

On Feb. 28, 1988, Baal murdered
shuttle bus driver Frances Maves,
34, as she inspected her bus before
taking airport passengers to Las
Vegas casinos.

Baal told Maves he needed help
and asked for money, according to
court records. She gave him $20,
but he pulled a knife and demanded
more. He forced her into her car
and she struggled, hitting his knife
hand.

“You shouldn’t have done that,”
Baal told Maves. “Now you pay. I
sentence you to death.”

Maves received multiple stab

wounds to the chest, back and right
shoulder, with the wounds piercing
her heart, spine and both lungs.
. He fled in her car, then ditched it
and came to Reno in a bus. Reno
police found him hitchhiking and
arrested him without incident.

Though the execution was abort-
ed, Baal still had the traditional
final meal in the last-night cell —
located 13 steps from the death
chamber. He was served fried
chicken, mashed potatoes and gra-
vy, corn on the cob and apple stru-
del, prison spokesman Glen Whar-
ton said. _

Baal’s parents, who live in Mesa,
Colo., contended during the Thurs-
day afternoon hearing that their
son was not mentally competent to

refuse federal appeals. But McKib-
ben disagreed, citing statements
by four psychiatrists that he is
competent. a

Baal repeatedly insisted he
wanted to die, but understood his
parents’ wishes to keep him alive.

Execution: delayed. by.judges,
McKibben asked Baal if he ha

in Reno found her son mentally
—T———-—" 2A—Reno Gazette-Journal

Marilyn Newton/Gazette-Journ

PARENTS: Doris and Edwin Baal leave a Reno court Thursday.

‘If they'd listened, victim would be alive’

competent to decide whether he
wanted to die.

“If they would have listened to us
for the last 20 years when we asked
for help, that woman would still be
alive,” said Baal’s father, Edwin Baa)

Now 25, the younger Baal pleaded

uilty to the 1988 stabbing death of
rances Maves, 34, a Las Vegas bus
driver. She was stabbed repeatedly in

See PARENTS, page 12A
Friday, June 1, 1990 =

any last requests. i
“Just bring me a hooker,” Baal

replied.

McKibben told him he couldn’t
honor that request, then asked if he
had any others.

“Just my last meal and let’s get
the ball rolling, man,” Baal told
the judge.

Baal’s parents left Reno about
4:30 p.m. to visit their son in Car-
son City and to make arrange-|
ments to have his remains shipped |
to Mesa, where he would be in-
terred in a family plot. Bs

Angelone said prison officials
did not plan to conduct a suicide
watch during the stay. “Absolutely
not. We're .going to watch his be-
havior and how he’s reacting, but |
we're not going to put him under
something he does not need.”

Although Baal committed the
murder less than 22 years ago, his
would not be the quickest. execu-
tion to be carried out in Nevada
since the 1976 U.S. Supreme Court
ruling allowing states to resume
the use of the death penalty.

Sean Patrick Flanagan, 28, was |
executed June 23, 1989, 20 months
after he murdered two men in Las
Vegas he claimed made homosex-
ual advances toward him. ;

Jesse Bishop, 46, was the first
Nevadan executed after the Su-|
preme Court ruling and the last in,
a gas chamber. He was executed
Oct. 22, 1979, 22 months after a Las
Vegas gun slaying of a bridegroom
during a casino robbery.

The gas chamber was used for 32
executions dating back to 1924.
The chamber was then refitted for
the lethal-injection method.

William Paul “Bud” Thompson
was executed June 19, 1989, and
confessed serial killer Carroll Ed-
ward Cole, 47, was executed Dec. 6,
1985.

Murderer Kenneth McKague has
been on death row since December
1979, the longest of any Nevada
prisoners. :

—

en

ee ———

Parents blame lack of care

From page 1A © * 4.

t@ ‘After that,;’he was committed

the front and back after she gave . to various state mental hos itals,

Baal $20, then tried to fend off
| his attack.
Baal’s parents, from Mesa,
| Colo., said they spent more than
; $100,000 on psychiatric treatment
for their son, whom Mrs. Baal
described as irrational, abnormal
and violent throughout his
infancy and early childhood.

System blamed.

'» The Baals blame the criminal
justice system and the nation’s
method of delivering psychiatric
health care for Maves’ death and
their son’s fate.

“They want Tom to be
executed,” Edwin Baal said,
anger rising in his voice. ‘“‘They’re
just as guilty because nobody
would help us.”

“When the money ran out,” his
mother said, “they let him sign
out of a mental hospital.” She
said pleas for government
assistance in getting additional
psychiatric help for her son fell
on deaf ears.

“When you go to all these
— and nobody helps you,
where do you go?” his father
said.

“This isn’t a crime like
somebody would commit that’s
sane.”

The son’s problems began
almost immediately after his
birth, Mrs. Baal said.

» Because of her Rh blood factor,
she said, her son had to have a
blood transfusion six hours after
he was born.

. As a child, he exhibited
repeated instances of “irrational,
abnormal and violent behavior,”
she said. °

When he was about 14, Mrs.
Baal said, her son underwent
extensive neurological testing in
Illinois. His parents were told he
had a brain dysfunction that
eaused him to act impulsively.

“Specifically,” Mrs. Baal said,
“the doctor told me that his brain
tended to ‘short-circuit.’ I
remember the doctor saying that
Thomas was seven years behind
in mental and emotional

development.” away_her tear:

one of them in Hawaii, until he
turned 18. On his 18th birthday,
he was released from a mental
hospital in Pueblo, Colo., she said.
homas then became a
hitchhiking vagabond, going
where he pleased when he
pleased, she said. She had little
contact with her son after that.

Thursday’s hearing

The parents sat quietly
Thursday in a courtroom at the
US. District Court building on
Booth Street. They listened
intently as their son, his voice
piped in by telephone, told Judge

oward McKibben several times
he wanted no interference —
from his parents or any judge in
the nation — in having his death
sentence carried out.

As the hearing began, the
couple moved from one of the
pews in the courtroom to join
Assistant Federal Public
Defender Patrick Flanagan at the
counsel table. .

Edwin Baal, graying and
slightly balding, wore a blue and
white stri shirt, cowboy boots
and blue dungarees, adorned by a
silver belt buckle with a large
turquoise stone.

He held hands with his dark-
haired wife, who wore a blue
shirt and blue pants.

When, for the first of many
times, Thomas Baal assured
McKibben, “I just want to be
executed,” Mrs. Baal began
sobbing.

Her husband glanced at her
and put his hand comfortingly on
her leg.

At one time, static obscured
the telephone hearing. After a
brief recess during which
telephone repairs were made, the
couple sat even closer together.

Both parents bowed their heads
as Thomas Baal told McKibben
he wanted to see them one last
time.

At one point, Baal told the
judge he loves his parents.

And his mother quietly brushed

‘S..


—Reno Gazette-Journal

Saturday, May 26,1990 3 j

Condemned killer says’
he deserves to die

By Brendan Riley/aP

CARSON CITY — Con-
demned slayer Thomas Baal,
scheduled to die by lethal injec-
tion June 1, said Friday he has
made up his mind and “I’m
ready to go, I’m happy.”

Baal, 26, added in an inter-
view at the Nevada State Pris-
on, “I want my death penalty.
... It ain’t right for me to do
what I did.”

Baal was sentenced to death
for the 1988 stabbing death of a
woman bus driver in Las Vegas.
His execution date was affirmed
Thursday by Clark County Dis-
trict Judge John Mendoza, who
ruled Baal was sane and compe-
tent to waive remaining appeal
rights.

Baal has been in and out of
mental institutions as a result of
suicide attempts, depression

and drug abuse. He said he was.

strung out on crack cocaine
when he killed Frances Maves,
34.

But the long-haired construc-
tion worker said he’s sane, has
found religion while behind
bars, and pleaded guilty to the
murder “because I’m guilty. I’m
not going to hide it.”

Baal was raised in Chicago
and moved with his family to
Mesa, Colo., at age 17. He
dropped out of high school and
left home, moving to Hawaii

Thomas
Baal, 26, on
death row at
the Nevada
State Prison,
says he’s
ready to die.

where he studied martial arts,
learned to play the guitar and
worked construction. He wound
up spending five years in a Ha-
waii prison for burglary and
auto theft. ;

The Death Row inmate, stars |

tatooed on his forearms, also
said several of his front teeth
were knocked out as a result of
fights while involved in youth
gangs. But he said he never
killed anyone before stabbing
Maves while “on a run” follow-
ing his parole from prison in
Hawaii.

Baal was released in mid-Jan-

Pe ae ae tee

uary 1988, returned to his par-'
ents’ home in Colorado. But he
said he got bored and lonely and |
a month later headed for Las,
Vegas where he “ran into a cou- |
ple of guys doing drugs and
dealing.”

Two days later, Maves was
stabbed repeatedly in the back
and head outside an airport ter-
minal in Las Vegas. Baal was
arrested a day later in Reno.

“T took a drug, you know, and
it made me crazy,” he said.

saturday

; May 26, 1990 35 cents

High court review.sought| —
in death-row baby case

_ A Nevada death-row inmate seeking to father a
child wants the U.S. Supreme Court to allow all other
death row inmates in the nation — more than 2,200 —
to do likewise if they qualify.
_In an amendment added. Friday to.a lawsuit in
Reno federal court, convicted murderer Tracy Petro-
celli, 38, and wife Lisa, 25, claim a constitutional right
to have a baby. . = ' Net ese gt
» Their action is on behalf of all current and future
death row inmates and their spouses “who desire to
procreate and bear a child and who are financially {| ©
capable of paying for any_and all medical expenses,
and who are financially capable of educating, main-
taining and supporting a child to (the legal age of
adulthood).” = *
_ Under the action, the couples would have to be
medically certified as capable of having normal chil-
dren to conceive a child. ye
ig The suit, which names all states with the death
‘penalty, seeks to force prison officials to allow conju-
gal visits so couples can conceive a child, either
through intercourse or artificial insemination.
“Plaintiffs and all class members share a funda-
mental and inalienable right to conceive and raise a
child,” said Carter King, the couple’s lawyer. =
» He said the issue will have to go to the U.S. Supreme
Court for a final determination of whether or not the
Constitution guarantees death-row inmates and their
spouses the right to conceive and support a child. The
Supreme Court has never addressed the issue, King §
said. Rae “nee Ba cis: BE — :

ated an nn

cai
Death-row baby cas
From page 1A 4 he

He estimated 25 percent to 50 percent of all death-
row inmates might qualify for parenthood rights.

“You should be able to have the right to bring a
child into the world,” Lisa Petrocelli said when the
original suit, aimed at Nevada only, was filed in
March. “Somebody to follow your name. It’s not the
child’s fault or my fault he’s where he is. Why should
we be punished?”

Her husband was sentenced to die for the March
1982 murder of James Wilson Sr., 63, a Reno camper-
top dealer. Wilson was killed during a robbery when
he took Petrocelli on a demonstration ride. The body
was found buried under sagebrush in a rock crevice
near Pyramid Lake, about 30 miles north of Reno.

Petrocelli is also under a life sentence in Washing-
ton state for the 1981 Seattle murder of his ex-
girlfriend, Melanie Barker, who was gunned down ina
restaurant. Evidence showed the final shot to both
victims was an execution-style bullet to the back of
the head.

Lisa Petrocelli said she met her husband through a
friend and correspondence. She said she fell in love
with him despite his circumstances, and they were
married Dec. 6, 1988, while he was on death row.

James Wilson Jr., one of 14 children his murdered
father left, called Petrocelli a madman who should
not be allowed to pass on his genes.

“As far as him losing the luxury of having a child,
we’re without the luxury of having a father and all my
children are without the luxury of having a grandfa-
ther,” Wilson said.

Tracy Petrocelli already has at least one child, |
teen-age boy living in Seattle.


es

Reno Gazette-Journal

Wednesday, May 30, 1990—3B

Condemned slayer smashes TV as execution draws near

By Brendan Riley/aP

CARSON CITY — Condemned slayer
Thomas Baal smashed a television set
Tuesday in what was described as an angry
and fearful outburst as his 12:05 a.m. Fri-
day execution drew closer.

“He’s continually voicing that he wants
to go through with this,” said Baal’s attor-
ney, David Schieck. “My own opinion is
that he’s scared, he’s very scared, to do it
and at this point to back out of doing it.”

“It’s like when somebody dares you to do
something,” Schieck added. “He feels he

would lose face if he got down to it and
changed his mind.”

Nevada State Prison Capt. Rod Country-
man confirmed Baal smashed the prison-
owned television set placed in his cell asa
courtesy, and then was moved to another
high-security cell.

Baal, 26, also asked for a guitar, but
Countryman said prison rules prohibit
that. He also said all Baal’s personal prop-
erty was routinely taken from him during
the cell move. That left the convict with
the clothes he was wearing and a mattress
and pillow.

Countryman denied Baal wasn’t allowed
to call his family. He said such calls are
allowed but he hasn’t seen a request from
the inmate. Schieck said Baal told him he
couldn’t call, and he then spoke with Baal’s
mother who said she hadn’t heard from her
son.

The attorney also said Baal complained
he hasn’t been moved to a last-night cell
near the execution chamber and has been
told he’ll get prison food instead of any
special food for a last meal.

“They're giving him a hard time. It’s like
they won’t let him die with dignity,”

Schieck said.

“So he’s making threats and they’re
making threats,” the lawyer said. “It’s a
minute-by-minute thing now. He can turn
his anger into ‘Screw it, I’m not going to
die.’ And truthfully, that’s what I’m work-
ing on.”

Besides talking by telephone with
Schieck, Baal also met with a federal de-
fender Tuesday but didn’t sign papers to
stop his execution. Assistant U.S. Defender
Pat Flanagan went to the prison to meet
with Baal and also spoke with him later by
phone.

Baal, a former mental patient who has
repeatedly attempted suicide, said in an
interview Friday, “I’m ready to go, I’m
happy ... I want my death penalty.”

During his Las Vegas trial and after-
wards, Baal reversed himself four times
on whether to fight his death sentence for
oa 1988 stabbing death of a woman bus

river.

But Baal said he won’t change his mind,
even though his parents and a sister have
urged him not to go ahead with the execu-
tion. He has no other family.

Law

! . SRE SPN Mae, i punbvae ko tm Ui nhc ten Rahat MR I, met aaa a me a aa ae weet

WATKINS v. FEDERAL LIFE INS. Co. | Idaho 1097

29 B.(2d)

wab- We find no error in the court’s refusal to 2. Insurance © 146(3).

pene give the instruction requested by the defend- Where language of insurance policy may
aul- ant respecting the subject of motive. Weare be given two meanings, one of which permits
chat of the same opinion as to the exceptions taken Tecovery and other which does uot, it is to be

7] . . ® . wiyve . structi ‘ “VON: " ins ‘ed.

nant to other instructions given and those refused. 8!Veh construction most favorable to insured
nily ; 2

the Counsel raises the point that the court 3. Insurance O>146(1)

he erred in refusing to grant a new trial upon Contract of insurance must be read and
Fibs the ground of after-discoyvered evidence. Up- considered as whole, and meaning and inten-
bie: on the authority of State vy. Willberg, 45 tion of parties determined therefrom.
rte Ney. 183, 200 P. 475, we are coustrained to

hold that the ruling was correct. 4. Insurance @=452,

‘ ee Limited accide icy insuring agains
ites The point is stressed th. the attorney for Amited accident policy in uring against
ace ; ‘ sete . ,, loss sustained by wrecking or disablement of
atl the state was permitted, over the defendant’s apoeen
arly elitist ta: faa ee and gt any horse-drawn or motor-driven cur, cover-
a ojections ge improper and most : ; . ,
fin. wecyions, to indulge in improper . °*’ ed loss of sight of one eye sustained in acci-

* oe ‘ “ . ‘ . < s vr p= . .
reat prejudicial stateme: s in his Cloning: argue dent which wrecked horse-drawn farm wagon
aint. ment to the jury. It seems that district at- white insured was operating it.

. % j 4} » +} Tiel . a po} SJ ‘ A i: : > .
uply torneys, in their ent husaan and energies, Policy, in part, insured for loss of life
sest.?* overlook, or at least disregard, the numerous and limbs sustained by the wrecking or

ob- -autions to be found in many opinions of this disablement of any horse-drawn or motor-
with court. However, we cannot say that in this driven car or motoreycle in which the in-
ject- “ase the argument complained of was such as sured was riding, or by being accidentally
“—— to constitute reversible error. thrown therefrom, including accidents
aa: Seer P causing death or disability sustained while
. 408, After an examination of the entire record, ; 7 : ‘

in ‘ous lict ot] tl ‘lt using or operating farm wagons and other

” yi 7 cy * a € : TQ ‘ yr f rul ; . f

Bs i We: Cone ae that sig FESCS OMer LAR gu y farm machinery, and provided that for
ions, of murder in the first degree, as charged in loss of eye sustained as result of such ac-
jury the information, could have been reached. cident insurer would pay specified sum.
fonse The judgment and order appealed from are

aflirmed, and the district court is directed to 5, Insurance 455.

lant’s make the proper order for the carrying into Loss of sight of eye from object striking
a effect by the warden of the state prison the insured in eye when farm rack wagon struck
neo judgment rendered. gatepost held injury sustained through “ex-
ai ternal, violent and accidental means and in-
done a spondentiy wis causes.” within terme

DUCKER, J., concurs, dt pm ndently of aul othe 1 causes,” within terms

the . of limited accident policy.
Lo be COLEMAN, Justice (concurring), ; [Ed. Note—For other definitions of
o the ui : “external, Violent and Accidental Means.”
ee While‘I am of the opinion that the trial uxternal, Viole and Accidental Means,

| that : peer ‘ ee see Words & Phrases.]

te to court erred in permitting the ecross-examina-

tle

: ion ¢ efendant’s witness Bodell, I think .

int is tion of defe 1% Mery 3 te 6. Evidence ©=596(1).

ithor- the defendant was in no way prejudiced Issues of fact in civil cases are to be de-

ld be thereby; hence I concur in the order. termined in accordance with preponderance
of evidence and need not be established be-

ia yond reasonable doubt.

from

room

er the Appeal from District Court, Canyon Coun-

linger ; ty, Seventh District; John C. Rice, Judge.

nu this Action on an accident insurance policy by

mm the Dallas B. Watkins, a minor, by Nellie G,

State, WATKINS v. FEDERAL LIFE INS. CO.

Watkins, guardian ad litem, against the Fed-
ult of No. 6061. eral Life Insurance Company. From a judg-
ven In ment for plaintiff, defendant appeals.

oO was Supreme Court of Idaho. ;

ad on Feb. 15, 1934, = Affirmed.

cee Seatterday & Stone, of Caldwell, for ap-

iis re 1. Insurance C>146(3). pellant.

1@ PPO- Contracts of insurance must be construed

oplica- in view of their general objects, avoiding Hawley & Worthwine, of Boise, for re-
‘ strict and technical interpretation. spondent.

Gor other cases see same topic aud KEY NUMBER in all Key Number Digests and Indexes

Iai we oe so wisibitksh ARS ideas idee WR sre <aruhogt wears capes % , BC TEASE A425 atime nd pen ms-¥8 Soe

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Nev.

1006

think, therefore, that it was proper to ask the
witness on cross-examination as to the result
of his investigation in the Dees Apartments.
Morecver, the particular testimony given by
the witness on which prejudice is predicated
was not objected to.

[12] Numerous errors are assigned to the
misdirection of the jury and the court’s re-
fusal to give directions requesied by the de-
fendant. In view of the admonition of the
statute that no judgment shall be reversed on
the ground of misdirection of the jury, unless
in the opinion of the court, after an exam-
ination of the entire case, it shall appear
that the error complained of has resulted in
a miscarriage of justice or has actually preju-
diced the defendant in respect to a substan-
tial right, we cannot say that the errors com-
plained of so resulted, The learned counsel
for the defendant complains mostly of the
instructions bearing upon the defense of in-
sanity. Our attention is particularly directed
to the defendant’s exceptions taken to instruc-
tions Nos. 14 and 15, which read as follows:

“To establish a defense on the ground of
insanity, it must be clearly proved that at
the time of committing the act, the defendant
was laboring under such a defect or suffering
from disease of the mind as not to know the
nature or quality of the act he was doing, or,
if he did know it, that he did not know
that he was doing what was wrong. ‘The
true test of insanity is whether the accused,
at the time of committing the crime, was
conscious that he: was doing what he should
not do; and if he was conscious that he was
doing wrong and acted through malice or mo-
tives of revenge, he cannot avail himself of
the defense of insanity. Plaintiff's Instruc-
tion No. 38 ¢.”

“With regard to methods of proof upon
which the defense of insanity may be estab-
lished, the law from which consideration of
public policy, the welfare of society and the
safety of human life, proceeds with great eau-
tion, and has adopted a certain standard by
which the insanity of the party on trial may
be proved when relied upon.

“The burden of proving insanity rests up-
on the defendant and to warrant you in ac-
quitting him solely upon that ground, his in-
sanity at the time of committing the homicide
—if you find that he did commit it—-must be
established by a preponderance of proof. The
evidence of insanity must outweigh and over-
come the presumption of and evidence in fa-
vor of sanity in some appreciable degree, and
render it more probable that he was insine
than that he was sane. Insanity, being a fact

29 PACIFIC REPORTER, 2d SERIES

to be proved by the defendant, must be estab-
lished by evidence in the case with the same
clearness and certainty as any other fact al-
leged by the defendant in his defense; that
is to say, the proof must be such in amount
that if the single issue of sanity or insanily
of the defendant should be submitted to the
jury in a civil case, they would find that he
Was insane. Insanity is not proved or estab-
lished by simply raising a doubt as to wheth-
er it exists or not. Plaintiff’s Instruction
No. 38 d.”

The language of which counsel complains
in instruction No. 14 is: “It must be clearly
proved,” and the language complained of in
instruction No. 15 is: “Proceeds with great
caution,” and the further language: ‘“Ingsan-
ity is not proved or established by simply
raising a doubt as to whether it exists or not.”
It is insisted that the instruetions are ob-
jectionable, in that they are inconsistent with
those approved relative to the same subject-
matter in the cases of State v. Clancy, 38 Nev.
181, 147 P. 449; State v. Nelson, 36 Nev. 403,
156 P. 3877; State v. Lewis, 20 Ney. 333, 22 P.
241. We do not so interpret the instructions.
They do not invade the province of the jury
nor do they disparage the defendant’s defense
of insanity.

[13] The court refused to give appellant's
offered instruction, which reads: “The jury
are instructed that if the State has failed
to introduce proof which it might have done
concerning the finger prints: taken at the
scene of the crime, it is a circumstance to be
considered in reaching a conclusion as to the
guilt or innocence of the defendant, and that
if evidence within the power of the State to
produce and not accessible to the defendant is
withheld by the State, the jury are author-
ized to infer that, if produced, it would be
against the contentions of the State.”

It is contended that this was error because
finger prints were taken by the officers from
various articles of furniture in the room
where the homicide occurred shortly after the
killing and compared with appellant’s finger
prints by an officer who was an expert in this
respect and who was in attendance upon the
trial of the case under subpoena by the State,
but who did not testify as to the result of
such investigation. Appellant is mistaken in
this contention. The ofiicer referred to was
placed on the stand by appellant, and. on
cross-examination testified to the result of
this investigation. His testimony in this re-
spect was unfavorable to appellant. The pro-
posed instruction was therefore not applica-
ble and properly refused.

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BISHOP, Jesse Wey white, 16, asphyxiatéd, Nev. State Prison (Clark), 10-22-1979,

1 section, 18 pages

~ “teensy

Monday, October 22, 1979

e luscal

Tuscaloosa-Northport, Alabama

Saeco atts a

OOS

Killer

AP wirephoto

Jesse Walter Bishop

2 moves rock 4

dies:

Executed in Nevada

CARSON CITY, Nev. (AP) — Jesse
Bishop, the tough-talking murderer
who sneered at attempts to save him
from the Nevada gas chamber, was
executed early today, the third man put
to death in the United States in the past
12 years.

‘This is just one more step down the
road of life,”’ Bishop told State Prison
Director Charles Wolff Jr. in his final
words.

Moments later, he was strapped in a
freshly painted death seat and green
curtains went up in the gas chamber.
Bishop smiled at a reporter among the
14 witnesses — 13 men and a woman —
standing in an adjacent room.

“He looked each of us in the eye, I
think,’’ said Tad Dunbar of KOLO-TV in
Reno, one of those who watched the 46-
year-old ex-paratrooper die for the
murder of a Maryland man.

Bishop shook his head and said

nothing. Cyanide pellets fell into an
acid bath, unleashing deadly gas.
Bishop made what appeared to be a
thumbs-down sign, wrinkled his nose,
seemed to search the room and
breathed deeply several times.

His eyes rolled upward, his head fell
on his chest and then snapped back. He
took another deep breath and closed his

eyes — for the last time. Bishop’s face ©

reddened, saliva ran from his mouth
and his body shuddered. After a series
of convulsive jerks, it was over.

One witness went down on one knee,
but recovered and stood up again.

Wolff had offered Bishop, 46, a
chance to appeal even up to the point at
which the inmate, clad in blue denim
pants, a white shirt and white socks,
was brought into the chamber and
strapped into a freshly painted death

See KILLER EXECUTED Page 3

Israeli regime

JERUSALEM (AP) —
Prime Minister Menachem
Begin’s government was
reeling today under two
surprise blows — the
resignation of Foreign
Minister Moshe Dayan and a
Supreme Court order that
Jews must give up a con-
troversial West Bank set-

‘ terneant

Nablus was illegal. It gave
the settlers 30 days to get
out.

The Arab landowners had
challenged the government’s
claim that the settlement
was essential for Israel’s
security, an argument the
high court had accepted in
all previous cases involving
Jewish ene! aves in oecunied

lack of influence over the
four-month-old negotiations
with Egypt and the United
States on autonomy for
Palestinians on the occupied
West Bank of the Jordan
River and in the Gaza Strip.

Begin and other leading
members of his Cabinet said
the resignation won't change
their tench stand inthe

AP wirephoto

MOSHE DAYAN
Kev Israeli onits

ST 4
arm’
ehureh
hostace ©
dering
stateme
said.

The ‘
asa”
his,

‘> GS ieee

AP wirephoto

CARTER, JOAN KENNEDY
.Enjoya ‘00d laugh in Boston

happy man

ily 2-to-1
, at which
ate party
’ poll next

2, a Ken-
‘mportant
re a key
n March,
port for a

-d Friday
rowth toa
: to some
that was
umer may

il counsel,

n of the |

Carter family’s peanut warehouse
operations, announced he could find no
evidence of criminal wrongdoing.

Meanwhile, in a television interview
taped Saturday night and released Sun-
day, Carter said he is more fiscally
prudent than Kennedy and favors more
defense spending.

Otherwise, he said, there is not much

difference between them.

“Sen. Kennedy is much more inclined

toward the old philosopy of pouring out

new programs and new money to meet a
social need,” he said. “I’m much more
inclined to try to make existing programs
work efficiently and start up new
programs only when it’s absolutely
necessary.”

On defense, Carter said, “I would be in

‘favor of much stronger defense com-

mitment than his record shows.”

AO,

chair”

~ Continued from Page 1)

But the feisty prisoner said no, just as
he earlier spurned offers to see a
minister before going to his death.
Wolff sent the prison chaplain to see the
convicted murderer on his last day.

Bishop had told authorities ‘‘I believe
in Jesse Bishop. I don’t believe in any
religion. I don’t believe in God.”

Prison officials pronounced the
execution complete at 12:21 a.m.
Moments later, Gov. Bob List, who had
refused clemency sought by others on
Bishop’s behalf, said the convict had
paid his due.

“The sentence of the law has been
carried out and Mister Bishop has paid
his debt to society,” List said in a

statement from the governor’s man-

sion. ‘‘He is now in the hands of the
Supreme Authority.”’

-Last minute appeals to two USS.
Supreme Court justices were turned
down Sunday. Bishop had not
authorized them.

‘“‘He was genuinely not afraid to a
and that’s an awe-inspiring sight,”
brother, who did not want to be iden.
tified, had said after a recent meeting.

One of the last things Bishop saw was
a slip of darkened Nevada sky visible
through a window in the chamber.

Bishop dined late Sunday on a final
meal of steak, sent his compliments to

ped we es oe

et we ee et

CARSON CITY, Nev. (AP) —

.  SMAN VSOOTWISNL FHL 6L6L

igual | wen id wi -

0 ‘ACPUOW z

SEE Seen. Yet ES ‘

Z the cook, and refused to pick up the

telephone provided him so that he could
file an appeal on his own — something

he flatly refused to do.

Bishop, a decorated Korean War
paratrooper, was a heroin addict and

~ professional robber. He said he robbed

a country store at 15 and was working
on a county road gang a year later.

He had spent more than 20 years of
his life in prison — mostly for robbery

and drug-related arrests.

Bishop’s execution, the first in
Nevada in 18 years, was the second
time this year that a man had been put
to death in the United States by
government order. John A. Spenkelink

-died in the Florida electric chair on

May 25 after a desperate court struggle
to live.

The only other execution this decade
was the death of Gary Gilmore, who,
like Bishop, spurned appeals to save his
life. Gilmore died before a Utah firing
squad in January 1977.

In the death chamber, guards drew

‘straps across Bishop’s chest and at-

tached a stethoscope. A long tube from
the stethoscope stretched through the
wall so a doctor could pronounce the
execution complete.

After a metal door to the 10-by-10
death chamber clanged shut, three
volunteer guards flipped switches to
activate the device that lowered

As a

THE TUSCALOOSA NEWS Monday, October 22, 19793

<iller executed ii in Nevada:

cyanitie pellets into acid eaeath the
death seat. ‘

‘Only one of the switches was live, so -
none of the guards knew which one ~
would kill Bishop, convicted of mur- ~
dering a newlywed Baltimore man
during a 1977 Las Vegas casino rob- ©

bery.

The gas which formed beneath him —

rose up slowly. He lapsed into un-
consciousness about a minute after the
fumes hit him.

When the doctor certified Bishop was

dead, the witnesses were ushered out .

into the near-freezing night air, and
prison guards began the process of ©
venting the deadly gas. . A

Wolff, who gave the order to strap —
Bishop in the two-seat gas chamber .
which hasn’t been used since 1961,
described the inmate as ‘‘tough,”’ “self-
controlled” and “‘stable.”’

Bishop’s remains were to be taken to
a local funeral home. The body will be
cremated, and one of Bishop’s two .
brothers, who stayed in Carson City —
during the execution, planned to claim _
the remains later.

About 50 persons, members of church
groups protesting the execution,
huddled against the bitter cold and
carried flickering candles across the
street from the Nevada Maximum
Security Prison.

Toughness leads Bishop
to Nevada gas chamber

brother recatiod:

- Bishop was in trouble a police at

tucky hi lis, Jesse Bisho
boy in the Kentucky hi 7 an early age. He robbed his first store

learned never to back down once he

¢ the | Geum. ond fo Mra Gines,

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headquarters (tallied. He nt a, however, ‘that |Cawan, Angelo
Ali. ver, % Pappas,
, 3 cavapecger-and William, Backer

ag bis Gepere | in the recovery: Vand: N
“we wish te express Boy rr Thomassen and Blake on it Sergeant Michael Sa
" rytmpaeaies ave been identified a8. ¢%|
/ and te th capess from thie state recormerory Following the rites, there. wil
é (the twe officers’) famiiies. ~~ Tat Monree, Wash. ‘ Blackwell: is
eB een said to have eacaped first, tel
in the Carlton Hotel shortly after | aided his two ions in going | ;

| all the  Betureey calce cay, but |~ Blackwell Tee been sought in|
‘ Thomassen alse ie being charged the Tacoma region since N

oJ

i

‘Meanwhile Blackwell, sho well said he shot the Tacoma |™
fe through the chest by Detective youth because “He squealed on

a. ee <4. slowly recovering from his | from his wounds. According to Te
= wounds. tel personne], said ports from Washington, Blackwell

a Blackwell's . co s ‘just | is believed to. have narbored Te 4
a is 4... fair, but .he is showing § slight | sentment against Wold for turn-

. wD inte ing ‘evidence against him after

store

= robberies, within Harold, army te. 7
: = : three hours of each other, at first | jor from Seattle, arrived in Reno ee
gates ie =a led authorities to believe the same | yes raay: aj. Blackwell eaid | aS,

“pra hee well and Blake did not

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‘the shooting were David *

well, 15, Arnold Thomassen, 22,.

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at Monroe, Wash., last week.
Blectswell, shot in the chest.
. Guring the gun battle offi-
cers, is held at Washoe
hospital His condition wae re-
po as “fair” ist might. The
other two were booked at Wa-
_ shoe County fail. a
Blackwell, described by officers
as having fired the fata] shots at
Detective Sgt. Allen Glass and
Capt. J. L. (Roy) Geach, has been ©
sought at Tacoma, Wesh., since
last: Sunday when a former friend
of, his, David Wold, £7, was shot”
three times on a downtown street
ta | corner. ‘Lt. Sherman Lyons of the -
27am |‘Tacoma force said he believed
‘Wold was.shot by Blackwell for
‘reverge,” Wold having been
blamed by Blackweil for a pre-

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34


FIVE AGAINST TERROR

The car was filled with hikers, happy
kids hitching their way across the

desert. Then one of them turned killer |

BY CALVIN C. DEWEY

Las Vegas, Nev., May 28, 1952

M WARD BUDZIEN was a born salesman. He wasn’t big or florid,
he didn’t use a pump-handle handshake and he had never
owned ‘a diamond stickpin. He dressed neatly, conservatively,
and was quite ordinary in appearance. But his eyes crinkled
easily into a smile, and anyone who met him knew in five
minutes that Ward Budzien was a man they could trust.
Budzien himself liked and trusted people. That w. the measure
of his success as a businessman and it was his undcing.

The morning of May 20 was ideal for driving. Budzien
squinted at the clear sky and noted the cool breeze on his face
as he tossed his suitcase into the trunk compartment of his
big Buick and locked it. He was glad to be leaving the hubbub
of Los Angeles for a few days. There were pleasant days and
evenings ahead in Las Vegas, Nev. The trip would be a
leisurely one.

“Expect me when you see me,” he had told his brother-in-law
over the phone.

On the open highway the engine droned soothingly and a
nasal Texan voice on the radio’ lamented a faded mountain ro-
mance. He twisted the knob to another station and winced at
the staccato blare of a Mexican rhumba. Jumping bean music,
he reflected. He snapped the radio off.

For a while he hummed to himself, tapping his fingers on the
steering wheel as he stared ahead to where the road met thehorizon.

Harry ‘Dyer met Bourdlais in Los Angeles; started hiking
with hims Claims the whole thing is a mystery to him.

g Handcuffed and watched by Deputies James Sams, Charles

Warren and Bob Owens, suspect enters court for hearing.

FRONT PAGE DETECTIVE MAGAZINE, September, 1952,

Far ahead he spotted the two lonely figures by the roadside,
standing motionless, each with an arm extended. Hitchhikers.
His first impulse was one of caution. He had read of a hitchhike
slaying in the paper not long before. Then, as he drew closer he
saw that they were young, clean-looking, neatly dressed—and
dejected. How many others had passed them up? He eased his
foot from the accelerator and stopped a few feet past them. He
reached back and opened the rear door.

“Hi,” he said, and grinned as the men trotted up and hunched
through the doorway into the back seat. He turned and looked
at them, still grinning. Their faces were boyish, tanned; they
were stocky and muscular. They looked back at him steadily,
blankly, unsmiling. They said nothing. :

“Where you heading?” Budzien asked, his grin fading. Were
they brothers? They both had black, tousled curls. One sported
a fuzzy scraggle under his nose, the (Continued on page 41)

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Bourdlais, held in county jail, allegedly said, "That's
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ORS Ney.

53 N.E. 590. Certainly no good reason
can be assigned why a judge, often sitting
as chancellor in chancery cases, should
part of the time be said to possess legal
discernment enough to sift out the com-
petent and disregard the incompetent evi-
dence but when determining the- degree
of punishment in a.criminal matter not be
able to exercise the same ability.”

As stated by the Supreme Court of Cali-
fornia in the case of People v. Gilbert,
1943, 22 Cal.2d 522, 140 P.2d 9, 12, “A hear-
ing for the determination of the degree of
an offense and the punishment therefor is
not a trial in the full technical sense, and is
not governed by the same strict rules of
procedure as a trial.”

[15] While the separation of the hear-
ing into two parts might aid, in some cases,
in preventing a misapplication of the evi-
dence, we are of the view that the statute
does not require the judge to so divide the
hearing. Under the statute, the judge is
authorized to hear all of the evidence
which is competent and relevant either to
the degree of the crime or to the penalty
to be imposed, and then to pronounce his
determination as to the degree and the pen-
alty. If it affirmatively appeared, from the
language of the judge’s decision, that, in
arriving at this determination on the de-
gree of the crime, he had been influenced
by the proofs as to the prior offenses, the
additional problems as to remoteness and
as to actual prejudice would be presented.
The language of the judge’s decision is as
follows:

“Upon a review and a study of the evi-
dence in this case and particularly the cir-
cumstances connected with the killing, one
thing is outstanding. That is, there was
not a fight. There were no circumstances
to provoke this. It was over in a matter of
seconds and it was done when two officers
of the law were carrying out their duty.

“The words that were uttered by this de-
fendant, after the two men had been killed,
impresses the Court. An officer had shot
the defendant. He said, ‘I am hit. I am
through.’ And that is. significant to the
Court. It indicates to the Court if he had
not been hit he would not have been
through.

9S PACIFIC REPORTER, 2d SERIES

“Another thing that is significant in this
case is the fact that the defendant went to
bed with a gun under the covers. That gun
was there, there for a purpose. As I re-
call the testimony of Mr. Phillips, he stated
this, that at the time that this defendant
made his statement to him on November
20th, the defendant said he went back to
the room and he went to bed, and the next
thing he knew there were two officers be-
side his bed. I do not recall anything with
regard to him being asleep or, awakening
and seeing the two officers beside his bed.
Also, do we find one shot being fired? No,
in this case we have found, by the testimo-
ny of Dr. Parsons, that seven shots were
fired and, in the opinion of the Court, this
showed the wilful and deliberate and pre-
meditated murder and, in addition to that,
a coldblooded and a ruthless disregard for
life. In fact, it may be referred to as a
wholesale slaughter. These men were shot
down in the performance of their duty.”

The judge, after confining himself to the
facts and circumstances surrounding the
murder, said “this showed the wilful and
deliberate and premeditated murder and, in
addition to that, a cold-blooded and a ruth-
less disregard for life.’ Here is a com-
plete finding of murder of the first degree,
From the language of the judge, strength-
ened by the presumption as to a proper ap-
plication of the evidence, a strong infer-
ence arises that the finding, and the deter-
mination as to degree which followed, were
based solely on the facts and circumstances
surrounding the murder, the res geste of
the case. The judge then proceeded, as we
view it, to the consideration of the penalty,
using the following language:

“It is astounding to this Court, from the
testimony which has come in here, how a
youth could have launched on such a deter-
mined and deliberate career of crime.
Every move that has been made by this de-
fendant in the last few months, from the
time he escaped from the reformatory until
he was arrested, was the commission of a
felony, either a robbery or a_ shooting.
Does this indicate that he has any regard at
all for society, for law or order, or for life
and the property of others? To the Court,
it shows a complete disregard for all.

STATE y. BLACKWELL

Ney. 289

Cite as 198 P.2d 280 ze

“Tt is, therefore, the finding of this Court
that this defendant is guilty of murder of
the first degree, and that the murder so
committed was wilful, deliberate and pre-
meditated.”

The judge then proceeded to the formal
Pronouncement of judgment and fixing of
the penalty.

If we entertain, for the moment, the
view urged by defendant that inadmissible
evidence of prior crimes was considered by
the trial judge in arriving at the degree of
murder, we are obliged to apply to the case
Section 11266 of Nevada Compiled -Laws,
which is as follows: “No judgment shall
be set aside, or new trial granted, in any
case on the ground of misdirection of the
jury or the improper admission or rejection
of evidence, or for error as to any matter
or pleading or procedure, unless in the opin-
ion of the court to which application is
made, after an examination of the entire
Case, it shall appear that the error com-
plained of has resuited in a miscarriage of
justice, or has actually prejudiced the de-
fendant, in Tespect to a substantial right.”

An application of the section referred to
was made by this Court in the case of the
State y. Skaug, 63 Nev. 59, 161 P.2d 708,
711. In that case, evidence of prior crimes
was received. The case was tried before a
jury. This Court, speaking through Mr.
Justice Ducker, said:

“But in view of our statute and the na-
ture and conclusiveness of the evidence, it
does not follow that allowing the jury to
consider the other offenses constituted re-
versible error. The evidence presents a
Case that calls loudly for the extreme pen-
alty.

* 4 * * * x

“An error of the injurious consequences
mentioned in the statute must appear af-
firmatively to warrant a reversal in any
Case. State vy. Willberg, 45 Ney. 183, 200
P. 475; State v. Williams, 47 Nev. 279, 220
P. 555; State v, Ramage, 51 Nev. 82, 269
P. 489,”

_ [16] The admissible evidence received

in the present case and not controverted in

any way by defendant, amply justified the

Judgment of murder of the first degree and

the death penalty, We are satisfied that the
198 P.2d—19

admission of the evidence of prior offenses
Was not prejudicial to any right of the de-
fendant.

(17] Defendant's third assignment of
error reads as follows: “The Appellant
was denied his constitutional right to an
early trial by failure of Judge Wines to
Proceed with the hearing. when Appellant
had his witnesses present.”

In support of this assignment, defendant
relies on Section 10654 of Nevada Com-
piled Laws, which Provides that, in a crim-
inal action the defendant is entitled to a
speedy trial. Defendant's plea of guilty
was entered on December 22, 1947, On the
following day the defendant had present in
the court -room certain witnesses to testify
in his behalf, and demanded a hearing on
that day. Judge Wines, at that time, de-
clared his disqualification and stated that
the case would be assigned to another
judge. On the 26th, the order of assign-
ment to Judge Brown was made. On the
27th, Judge Brown set the hearing, for the
determination of the degree of the crime
and the penalty, for January 5, 1948. The
hearing was held on January 5th, 6th and
7th. Under the Previous rulings of this
Court, we are satisfied that the defendant
was not deprived of a speedy trial. State
v. Squier, 56 Ney, 386, at page 399, 54 P.2g
227, and cases there cited. The testimony
of the defendant’s witnesses referred to
could have been perpetuated, under the pro-
visions of the statute, had the required
steps been taken by defendant for that pur-
pose.

[18] Defendant’s fourth and last assign-
ment of error is as follows: “Judgment
was rendered in less than six hours contra-
Ty to Sec. 11041, N.C.L.1929.”

Section 11041, Nevada Compiled Laws,
relied on by defendant, reads as follows:
“The time appointed shall be at least two
days after the verdict, if the court intend
to remain in session so long; or, if not, as
remote a time as can reasonably be allowed.
But in no case shall judgment be rendered
in less than six hours after the verdict.”

It has been held in California, under
statutes similar to ours, that the elapsing of
time between judgment and sentence is not
required on a hearing to determine the de-

SAIVERSTITY OF AARams

tay

«ree

S244 Oe


ew

odned det Saeentn a eee eee

290 Ney. 198 PACIFIC.REPORTER, 2d SERIES

gree of murder and the sentence thereon. to perform covenants of contracts under .

People v. Noll, 20 Cal. 164. We follow that which deed had been executed and deliv-

rule.

No error appearing in the record, the
order of determination of the district court
determining the crime of appellant to be
murder in the first degree, and the judg-
ment appealed from, are affirmed, and the
district court is directed to fix the time of
and to make the proper order for the carry-
ing into effect, by the warden of the state
prison, of the judgment rendered.

HORSEY and BADT, JJ., concur.

EATHER, C. 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.

© ¢ KEY NUMBER SYSTEM

4nmse

CANEPA et al. v. DURHAM et al.
No. 3517.

Supreme Court of Nevada,
Oct. 11, 1948.

!. Appeal and error €=1012(1)

Supreme Court could not substitute
its judgmedt for judgment of trial court in
matter of weight to be given testimony.

2. Vendor and purchaser €>104
Evidence justified vendor’s rescission
of contract for sale of land on ground that
. purchasers had failed to perform obliga-
tion to pay notes executed as part of pur-
-chase price, and had failed to apply for re-
lease from mortgage of land reserved to
vendors within time required by contract,
and that failure of purchasers was a sub-
stantial and fundamental breach defeat-
ing object of vendors in making contract

and going to root of contract.

3. Vendor and purchaser C104

In vendor’s action for rescission of
contract to sell land, evidence sustained
finding that vendors’ notice to purchasers

ered to purchasers was reasonable and
made time of the essence.

>

Appeal from Second Judicial District
Court, Washoe County; W. D. Hatton,
Presiding Judge.

Action by F. E. Durham, sometimes
known as Frank Durham, and Cora E.
Durham, against Louis Canepa and Eva
Canepa, his wife, and William Canepa and
Esther Canepa, his wife, for rescission of
a contract to sell land and the cancellation
of a deed executed thereunder. From an
adverse judgment, defendants appeal.

Affirmed.

Withers, Sanford & Horgan, of Reno,
for appellants.

Clyde D. Souter and Clel Georgetta, both
of Reno, for respondents,

BADT, Justice.

Defendants have appealed to this court
from the judgment of the district court
canceling a deed theretofore executed by
the plaintiffs in favor of the defendants and
settling the accounts of the parties grow-
ing out of the canceled transaction, and
have also appealed from the order of the
district court denying defendants’ motion
for a new trial. The trial of the case was
the second trial of the action—the judgment
rendered in favor of plaintiffs in the first
trial having been reversed by this court.
Canepa v. Durham, 62 Nev. 417, 153 P.2d
899. Petition for rehearing of the first ap-
peal was denied. 62 Nev. 429, 155 P.2d
1009. When petitioning for a rehearing
on the first appeal the respondents asked
that in the event the petition for rehearing
was denied the case be remanded to the
lower court for further action and proceed-
ings under § 9385.78, N.C.L. 1931-1941
Supp. This petition was likewise denied.
62 Nev. 429, 155 P.2d 788: Defendants
also appealed from the clerk’s order tax-
ing costs, and this court sustained the rul-
ing of the clerk. 62 Nev. 429, 155 P.2d
788. The appellants filed a further pcti-
tion for rehearing, which was likewise de-

CANEPA y. DURHA) ees
Cite as 198 P.2d hg 5 Ney, 201

end dss court. 62 Nev, 432, 155 P.2d delivered to the Canepas a deed conveying
a S e met ew of this court on said land and water rights. At the time
irst appeal (6 ev. 417, 153 .P.2d of: tl al I
“ Ke a le sale the Federal Land PB:
vals * wi, ederal Land Bank of
ite Bi sate rin the order: “The judg- Berkeley, California, held trust deeds on
ag ue, pes cr appealed from are re- the property as security for an indebted-
versed. Plaintiffs were thereupon grant- ness in the sum of $17,019.31 - also, at
pe new trial by the district court. Appel- the same time, the respondents were: in-
= ‘ aes that the order of reversal debted to the United States of Americ
nally disposed of the case and that the i th ;
Z f through one of it | i
lower court was thereaf it ; Nae Fae pat ied
2 after’ without au- money } ,
2 y borrowed to purchase seed, whi
thority to grant a new trial {a cosepie
2 al and appealed was secured by he
Bg otro aad 2 P y a chattel mortgage on cer-
3 Ss court affirmed tain hay located ; i i
ey Z ay ed in a barn sifuate on said
the ee court’s order granting such new ranch. The agreement provided that 3
triz c a 4 : :
ae ‘ reigeheg v. Durham, 63 Nev, 245, Durhams reserve about twelve
2 : ; 81 ; As noted, plaintiffs again the Canepas agreed to have released. from
evailed in the second trial, and defend frie
al, z - the trust deeds hereinbefore refe
ants have again appealed The first opini i i aa
ag i aled. stopinion The partial release w: obtai
ote Pig é ase was to be obtained by
ee ai ig in ce that certain es- the appellants and delivered to the faccs:
se Toots were so lacking that the ents on o ;
: ‘ F t before the Ist day anuary
findings and judgment could not be sus- 1940, provided that in the ae mee
© is aT eo 4 + x
ee The present appeal is concerned spondents had saved the appellants harm
i et ; : arm-
bas with the question as to whether such ess from the chattel] crop mortgage. Said
ay: é gage. Sai
te pan Was met and Svercome in the agreement further provided that weenie
lal to such extent to Justify pay interest and Payments as provided in

the courts econd findings and jud ment the trust eeds to he I ederal Lan 1 Bank
t s ro 1S d p
in favor of plaintiffs, of Be keley

a

acres, which

antime re-

California, Respondents
The record now before us contains all of #8teed to pay general taxes assessed against
the evidence adduced at the second tria] the twelve acres after January 1, 1936, and
as well as the evidence adduced at the first t© pay their portion of ditch maintenance
trial, made a part of the record before the @nd also Coldron Ditch assessments for
district court by stipulation and which is Water right reserved to said twelve acres
also part of the record before this court. Appellants executed and delivered to cm
Subject to certain changes and additions by spondents as part of the consideration tw«
reason of the new evidence adduced at the notes, one in the sum of $250 ssaivabile ‘
second trial, a recital of part of the facts ‘or before November 1 1936, and ee
as made by Orr, C. J., speaking for the the sum of $225 ei iS he eh
court on the first appeal, may be resorted Novemb 1 F BE sor chia
er 937

to. Although this unfortunately will re- :
sult in greatly lengthening this statement
of facts, it will obviate the necessity for
searching two volumes of Reports to ob-
tain the same. Judge Orr’s statement of
the facts in the first trial (62 Nev. 418-423
153 P.2d 899) is as follows:

It was orally agreed
between the parties that the hay located
upon the ranch property and covered by
the chattel mortgage was to be left in the
barn for a reasonable period of time, The
hay remained in the barn from April 9
1937, to March 10, 1939, a period f
j twenty-three months. Appellants ile
Respondents, Frank E. Durham and_ to pay the principal or nee fine te
Cora Durham, in the spring of 1936, notes above mentioned and failed t 2
entered into an agreement to sell to appel- cure from the Federal Lind B t 2
‘ants, Louis and Eva Canepa and William Berkeley, California, a these ed it
and Esther Canepa, certain real Property, two deeds of trust of the portion of >
consisting of approximately 382 acres, sit- ranch reserved by respondents. Resp a
uate about nine miles west of Reno, on the ents, in the year 1939 and be favs le:

Verdi Highway.. Conte : aaa ited
fet Highway. Contemporancously with piration of the time fixed in said agree
Said a “me mE : wae . + e d
d agreement, the Durhams executed and ment to secure the release of the twelve

VAIVERSITY oF AiA Rama


2°
BUTNER, C. Owen, white, 38, asphyx. Nev. SP (Washoe) XX-10-1951,

"OWEN BUTNER PUT TO DEATH./Carson, Feb, 10 - (AP) = Owen ©. Butner,
38, today became the first native Nevadan to be executed in the gas
chamber here, The former Reno policeman was pronounced dead at 6:13
aem. just 12 minutes after the cas pellets were released, He was
convicted of first degree murder for the slaying of his former wife
in December, 19:7, In his statement released through Warden A. E,
Bernard, Butner said: 'I am guilty of many sins but planned, willful
or deliberate murder is not one of them, I do not helieve that
execution is a proper or just cure for alcoholic insanity. But I
will admit it is a permanent one,' Butner's case had involved five
stays of execution and had twice gone before the state board of par-
dons and paroles. He had been in Nevada's death row for nearly three
years. He was the 23rd and last manto be legally executed in the present
gas chamber. A new gas chamber is nearing completion. In his final
statement Butner told Warden Bernard everything that had

happened had been his own fault. He said 'I blame no one,'

NEVADA STATE JOURNAL, Nov. 10, 1951 (12:h.)


After a metal door to the i0-by-10

apa.

Carter said he is more fiscally a siip of darkened Nevada sky visible huddled against the bitter cold and

v ball next gdbiat ent. than Kennedy and favors more . through a window in the chambe death chamber clanged shut, three carried flickering can acrosS the *
ne a. ‘Ken: ~ * 7 ise Te. 15% Bishop dined late Sunday on ial volunteer guards flipped switches to street from the Nev: Maximum» <
important pai “S Otherwise, he said, there is not ‘much “Jneal of steak, sent his compliments to activate the device that lowered sony Prison. ts
<2 key eh ana siich more incli ed 3

in March, eet ~ “Sen.” e re inclined §&

eee a “toward the old philosopy of pouring out &

eo a i te new programs and new money to meet a ~ O U In ess ed S is 10F

ed Friday social need,’’ he said. “I’m much more —

arowth ie Anclined to try to make existing programs —&

© work ‘efficiently and start up new
v | pkcakatale only when it’s a :

=] to Nevada gas chamber .

Eamets than his record shows.” -

favor of much ieontes defense com- ©

CARSON CITY, Nev. (AP) — As a

boy in the Kentucky hills, Jesse Bishop.

learned never to back down once he
took a stand.

The lesson served him well as a street
tough and a combat paratrooper, but it
brought him to the Nevada gas
chamber early today at age 46.

brother recalled.
Bishop was in trouble with police at

: an early age. He robbed his first store

at age 15 and was working on a county

- road gang at 16.

At age 17 he*went back to his native
Kentucky, lied about his age and joined
the Army. In May 1951, he was a

: | paratrooper in Korea.

| 9°" the Congress, compared with 39 Bishop did not appeal a sentence
of those ecu 4 percent in condemning him to death for the sire talked oo pride ane =
‘good”” or In another area, 64 percent said they : December 1977 gunshot slaying of a Sc necorated ee. d later artetel fo
bate could “trust President Carter to always % AP wirephoto rota dati sen goa? tried to stop him cla posocasiaa, ater arrested for
t week, 42 _. tell the truth,” while 31 percent 4 rom robbing a Las Vegas casino.
» rating in didn’t always believe ae said they : MIKE THEVIS Once he made up his mind, he stuck He received a dishonorable discharge
ercent in Those surveyed were asked which | Pornography king with his decision to enter the gas and spent two years in an Army —
f his work candidates they would never vote for. * chamber rather than mix with what he atseiplinary Darrecks 3) Pt Leone:
,ercent in Forty-three percent named California ie considered ‘‘sniveling cowards” who worth, Kan. The exper rita tanipiaatig :
oth polls Gov. Jerry Brown, 35 percent named Ty evi S won’t accept responsibility for their and hardened him, his brothers say. He
mic field. Kennedy, 25 percent named Republican capital crimes.<-" ° wether d lated
surveyed John Connally, 19 percent named Ten- ~ | Bishop’s many defenders had dif- There were more ; ete a ¥
s doing a nessee Republican Sen. Howard Baker and : ficulty grasping why he was willing to arrests and treatment for heroin ad-
king with 16 percent Carter. to U N re es They sah he was a a. “pip whip d berpleerst ‘eisin atre got
A ag : ype whose long-term heroin addiction

ym Page 1)

federal govern-
raft dodgers and
people. He also
nent of bringing
‘ountry, keeping

ermined to “save
ws, He said wars
profits for Jarge

Sea

Oswald's

mom hits -

COLUMBUS, Ohio (AP) —
The 72-year-old mother of
Lee Harvey Oswald says she
has refused to cooperate
with a British author who
believes a Soviet agent rests
in the Texas grave identified

as that of her son.
= In an interview at her Fort
= Worth, Texas, home with

at author

guilty

ROME, Ga. (AP) — A
federal jury found por-
nographer Mike Thevis
guilty Sunday on three
counts of racketeering and
murder conspiracy after a

lengthy trial on charges that ~
he used murder and arson to -

try to gain control of
America’s pornography
industry.

The jury also found

had warped his mind.

“T always thought he was unhinged. ad
said American Civil Liberties Union
spokesman Richard Siegel, who joined
the unsuccessful effort to stop the
execution. The effort ended with a final

denial late Sunday by two members of |

the U.S. Supreme Court — Chief Justice
Warren E. Burger and Associate
Justice William Renquist.

To Prison Director Charles Wolff Jr.,
who has seen many would-be tough
cons break under pressure, Bishop was
simply “‘tough.”’

Growing up in the mostly Mexican-

-American East Los Angeles area,

Bishop and his brothers rose to the top
of the gang structure where they were
known as “the crazy gringos,” a

for robbery.
Paroled in 1967, he resumed his

heroin addiction and wound up in prison

for robbery again in 1970. He escaped in
1972 but was caught. He finally won a

- parole in 1976, to Los Angeles where he

returned to his heroin habit andearned |

-a fugitive warrant for robbery.

Then, on Dec. 20, 1977, he pulled the :

‘job in the El Morocco casino in Las

Vegas.

Bishop spent more than 20 years of _.

his life behind bars before his con-
viction in the casino killing, but he |
managed to marry twice, father two
children, and live in ‘‘good” neigh-
borhoods, protecting his family from
the thugs with whom he associated,
family race Say. : 3

etihtrs from Columbus radio station peealggeohinire ae ee r
ad ringed the WCOL, Mrs. Marguerite vans Bi =a di
‘ee called in its Oswald said Saturday that her cousin, Bart Hood of 8s rey ied ii e ‘man’

ily tiici Vai V4244 SCO bial

s@hi,

or pe used murder and arson to

ry to gain control of

d-~America’s pornography

home with
jo station
s. Marguerite
Saturday that

, dex
?

jlumbu

COL, 4
ald said
the exhumation of the body
‘would not help determine

killed President John F.

= Kennedy.

Oswald was named by the

Warren Commission in 1964

as the lone assassin of

Kennedy, who was shot to

death in Dallas on Nov. 22,

, gray, one-story... }
q situated along . sebotia

; t of (re 1963.
lg pie high."s oe Medical authorities in
thdirections. -...... «=: Dallas County, Texas, favor

ey facilities, ° in-
wees Were set up __,
aprecaution.

: ie ag s
Evatt

=: exhumation of the body
# because of the number of
questions raised about the
issue. Officials in Tarrant
County, Texas, where
~ Oswald is buried, have op-
posed previous exhumation
attempts.

Oswald had moved: from
the United States to the
Soviet Union in 1959. Author
Michael Eddowes claims to
have evidence that it was not
Oswald who returned to
America in 1962, but a man
masquerading as Oswald.

“It’s an asinine theory,”
said Mrs. Oswald. ‘“‘Why go
into it? It’s a waste of time.
You open the grave and let’s
just say it’s not Lee Harvey
Oswald. How ... are you
going to prove who it is?”

ae
- - tig J
‘ ageemancnne

ee

lent probed

federal Bureau of Alcohol,
‘stigating the placement of
ing the Tellico Dam, which
ounds of the Cherokee In-

briefly Saturday when 16.

g Cap were discovered in a

the speaker’s platform.

imer, and little dnager that

it to stop completion of the
i because it threatened the

The Great Lakes are so

‘D, a program of Indian |
large they hold one-fourth of

2alth Center, offers super-
movies, dances, arts and

and other social and
y through Saturday from 8
ation on how to become a
1600 extension 70.

National Geographic, is

all the fresh water in the fear
world. This, according to Be

enough to cover the United Jaa
States 12 feet deep. 7

SALES
and
SERVICE

on GE
WASHERS

industry.

The jury also found
Marietta, Ga., real estate
agent Jeanette Evans and
her cousin, Bart Hood of
Summerville, S.C., guilty of
murder conspiracy along
with Thevis in the shooting
death of Thevis’
associate, Roger Dean
Underhill. se ia

A Thevis-controlled cor-
poration, Global Industries
Inc., was found guilty of
racketeering and
racketeering conspiracy.

The U.S. District Court
jury of eight men and four
women reached its verdict
after 23 hours of
deliberations lasting over
three days. Sentencing is set
for Friday. .

Thevis, 47, of Atlanta, was
accused of using murder and
arson in a scheme to take
control of the nation’s
lucrative pornography trade
over the past 10 years.

Underhill, whose grand
jury testimony laid the
foundation for the govern-
ment’s case against Thevis,
was killed in a _ shotgun
ambush in Atlanta last Oct.
25. Thevis was a fugitive
from an Indiana jail at the
time of the shooting.

former .

simply ‘‘tough.”’

rowing up in the mostly Mexican-
erican East Los Angeles area,
-. Bishop and his brothers rose to the top
of the gang structure where they were
known as ‘“‘the crazy gringos,” a

Viavtcsvas dal Li

managed
» +» children,
~~ borhoods,

marry ta habsteo %
and live in id” neigh- ~
protecting his 1amily from *

the thugs with whom he associated,
family spokesmen say. :

Bishop ‘died like man'

- CARSON CITY, Nev. (AP)
— A family spokesman said
Jesse Bishop died like a

*. man, and the governor said

he had paid his debt to
society. But those who
fought his execution said
Bishop was a victim — like
the Maryland man he
murdered. Le
--“We suffer like any other
family,’’ the family
spokesman, who asked not to
be identified, said early
today after Bishop was put to
death in the Nevada gas
chamber.

“What else can I say,” the”

spokesman continued, ‘‘He
was a man to the end.”’

Bishop, 46, was twice
married and the father of
two children. He was a
decorated Korean War
paratrooper, a heroin addict
and a repeat criminal. His
pulled his first robbery at
age 15 and spent more than
20 years in jail.

“The sentence of the law
has been carried out and
Mister Bishop has paid his
debt to society,’ said Gov.
Bob List, who had rejected

(COMPLETE
_ Repair Service

CROWDER’S

Sales &
Service

2 tests a ees

‘block his execution made by

appeals for mercy made by
others on Bishop’s behalf.

There was no immediate
comment from the family of
David Ballard, the
Baltimore, Md., man who
Bishop gunned down during
a Las Vegas casino robbery.
Ballard was on his
honeymoon when he was
slain in 1977.

Bishop spurned efforts to

{ } j 4 alt:

: ie
{ a

i

the American Civil Liberties ©

~ Union and the NAACP Legal -

Defense Fund. ,
Members of the American

‘Friends Service Committee .

joined about 50 persons in a :
candlelight vigil in the chilly ~
air late Sunday and early
today outside the Nevada
Maximum Security Prison
where Bishop was put to
death.

TOWN h Vi
“BOPPER

hSPAGHETT |)

'
al
4)

| Peal 7


> =,

taking “light” tranquilizers.

—wUTwh Wess aww Fr wees

wsbeuue 21 PYt--y re er ere erm ee wee

et /

: P assed mental, W

CARSON CITY, Nev. (AP) — Confessed
murderer Jesse Bishop says he’s passed his most
recent psychiatric examination and is ready to

- fight lawyers trying to stop his Aug. 27 execution.

Bishop said in an interview Monday that he

underwent lengthy psychiatric examinations over ©,
the weekend and got “the green light” from a

psychiatrist called in by prison officials.

_ A federal judge has scheduled a hearing Thurs-
day in Las Vegas on a public defenders’ petition to
block Bishop’s trip to the gas chamber, and Bishop
said he will be there to oppose the petition.

A prison spokesman confirmed Bishop, 46, sen-
tenced to death for killing a Las Vegas casino
patron, would be flown from the Maximum Securi-
ty Prison in Carson City to Las Vegas for the
hearing.

Acting Prison Superintendent Howard Pyle also - -

said Bishop’s spirits and appetite are good, adding

. that he is smoking cigars, eating meals such as a

lunch Monday of corn beef hash and oysters, and is

“THIS HASN'T changed me mentally. It hasn’t

affected me at all,” Bishop said...

. “J don’t really give a damn about their gas

-chamber,” he said. “I .can think of things I'd rather
do ... but the point is, I can accept this, too.”

Bishop said he still feels it would be more
“cruel” to stay his execution than to let it proceed
on schedule. He said he would prefer a life prison
term but doesn’t see how he could get a commuta-
on.

The admitted slayer, heroin addict and robber

Said he was “guilty beyond all doubt” and he would-

n’t ask the state Pardons Board to commute his
sentence because “I won’t beg and that’d be beg-

ging ”
tends Bishop was sentenced illegally to death and

that the execution should be blocked. The gas

chamber in Carson City hasn’t been used since

1961.

But Bishop, housed in a Death Row holding cell
just 20 feet from the chamber, said the public

defenders “have no right to file any legal docu-

The Clark County Public Defender’s Office con-

POOF He
ants execution

Se

Associated Press wirephoto

Bishop seeks to die in gas chamber

_Ments on my behalf.” He also said he agrees with
the attorney general’s office, representing prison
administrators, that the defenders lack standing to
bring their court action.

. THIRTY-ONE MEN have been executed in
Nevada by lethal gas — a method pioneered in the
state in 1924. ; :

If the execution is carried out, it would be the
second in the nation this year. John Spenkelink was”
electrocuted in Florida's electric chair last May
despite a battle by death penalty opponents.

That followed the January 1977 firing squad
execution of Gary Gilmore in Utah, after Gilmore
repeatedly refused to authorize appeals of his death
sentence. , hahaa

ree:


By LIN DAY
Times Staff Writer

An estimated 200,000 people
poured into Half Moon Bay Saturday
and Sunday to buy eee eat
PEs food, and genera ly have a

lg family outing,
Police report.

It was, sald veteran Police Sgt.
Harley Smith, the bi gest crowd he
ever saw, and one of the best man-
néred. ‘They were family," he said.

He estimated the turnout for the
rune parade ey
50,000, swelling to 85,0 before a
sudden heavy shower panicked the
crowd and created a monumental
traffic jam on
city,

Sunday, with’
estimated 115,
Smith said.
happy.” he remarked.

ts fy es . ‘ ea BH baa ac
: Vt a Sasere tad’,
YARRA pay WORRD anQrtytony TEE EHS,

Poon »

ats any

came for the day,

vy A Sets

By CY RYAN .
CARSON CITY, Nev.
Jesse W. Bishop, a decorated
Korean War hero who came home to
a life of crime, sex and drugs, died
in the Nevada gas chamber today
for a 1977 robbery-murder that net-
ted him less than $300, 4
i He was the second
‘Imes Photo by Fred Larson) cuted In the United
: and only the third since 1972 when
the Supreme Court ordered Stricter
capital punishment laws...

Ishop, 46, had said for months he.
would not beg for mercy as death.
approached, and he was true to his
word when ‘the deadly cyanide pel-
lets were dropped info a bucket of
acid at 12:11 a.m,

Ten minutes later, he was pron-
~ ounced dead, —

(UPI) —

et aa, ae
ye AN §
Pe Ade

a

States this year

et held under clear
* more photos see

o|
ught —
Vv Flying Club, Two In 1950 ~— at age 17: — Bishop
i E ie aye enlisted In the Army as a para
wners. trooper, Even at that age, Bishop
rcraft was estimated had been in trouble with the law;
$500;000. Damage to. having some juvenile delinquency
minimal, ~ problems,,
Hee said the érash He was sent to Korea and was
'y a Steven Sponos, wounded and decorated, oe
1 be walking past the Bishop developed a drug -nddic-
“ field, a8 the plane tion, was caught in possession of
nding. Heralh oo Wus istonarably ale
; | Charged. He spent two years in the
teahe oRiee U.S. Disciplinary Barracks at Ft.
apple and Magulac -

Leavenworth, Kan. 2
4, : = When released to civilian life,
od County Coroner's
men died of ''mul-
injuries," :

SAN Mafeo.

family has report: ...
ervices this weoleat B
hapel, but has asked °
Information to be + eo
sel Lae hy oo. Pi
n reportedly lived at -\p 0:
v and Js the son of’,
inley G. Magulac of *:

Half Moon Bay: :

noon at-

all roads out of the .

erfect weather, an

Jesse Bis
Nevada’s

person exe-,

(CA) TIMES

By 3 p.m. Sunday, nearly every
food booth was sold out of all the
food it could get up for the occasion,
One pumpkin pie booth alone sold
1,800 pies. ,

Veteran City Councilwoman
Dolores Mullin, who recalls a dead-
quiet, half-vacant Main Street nine
years ago before the festival
changed things, said it was a very
successful weekend, pis exactly
what those who had visualized the
future then had dreamed of,

“The festival created today's
Main Street, with its new Stores and
plantings, trees and vintage atmos-.

. phere,” she said.

‘Moreover, as had
it was a family-oriented crowd, a
lhe one, with half of those there
children having a 800d time,"
People were everywhere, roam-

ing, buying and eating. In the pump-
kin patches all about

Bishop began smuggling drugs to
satisfy his habit,

He often bragged to newsmen in
his last months that While free he
had fancy cars, women and plenty of

ape

( was his Craving for narcotics
that led to his final arrest. On the
run from Los Angeles, Bishop hit on
a plan of robbing a Las Vegas casino
to get money to uy drugs...

-The robbery netted him $278,
During the holdup, Bishop shot
David Ballard, a casino custonrer
Who tried to stop the robbery,

Bishop refused to allow public
defenders in Las Vegas to present
anything to a three-judge panel
about his bravery in the military
service, or whether he was under
the Influence of drugs when he com-
mitted the robbery,

Bishop told psychiatrists he was
proud of his military service. but he
would not Iet it be used in any way
to keep him from the Ras chamber. .

What he did say luter about his

. Military service:

“In 1950 I went to Korea as a

aratrooper and got wounded, Hey, |
est fullfilled an obligiation that
every man in this room has to do ff
he ts called on to do It. ...

“They wanted to bring that ae
and 1 refused to because It would
have been a disrespect to the. thou-

3 ee iene Sa

heen planned,

town, they

- final words to Prison

sometimes by

“roamed by the’ score, oe
picking out a choice

the hundreds,

Bolden vegetab a
- — They filled the. downtown area, -

hey jammed the festival section
ltsclf, five blocks closed off to’
traffic and lined with booths. They
formed lines for the haunted house
on Church Street, :
They filled the Stagecoach all day
long as it rolled about the festival .
perimeter,

‘They packed the
watching MacBeth and a doctor-
patient show, They applauded a
Puppet weatherman takeoff. :

hey gyrated to a swin band
from San Francisco and cheered
‘‘Pumpkin Fever,’’ when it was
played by a Popular Santa Rosa
country music combo which had
first aoe the song out last year,

“Pumpkin Fever's what it's all

(See Page 6, Column 1)

hop dies in
gas chamber

sands of men whose bodies are burs
led all over the world. ... That was
no excuse for my crime and |
refused to insult the men that have
been injured and maimed and killed
in the wars of the country by going
Into court and using that.’
It was disclosed after his execu: ;
tion that Bishop may have been
involved in 18 ‘contract Killings tn
addition to the one he was executed
for. eo
"For months he had predicted he
Would not be terrified of d ing. His
rector
Chuck Wolff Jr. were, “This is just
one more step down the road that
I've been heading all my life.” Wolff
called him the “Ieeman,” 7
Wearing a freshly pressed white
shirt, prison denim trousers and
White socks with no shoes, Bisho
was taken from his death row cel)
shortly after midnight and walked —
some 13 feet to the gus chamber,
which hadn't been used in 18 years,
Three green shades were drawn
down across the plate Rlass windows
that separated Bishop from the wit

oe

“Nexs room, The 48-year-old con:

victed murder was strapped by the
shoulders, waist and wrist. to the
sterile white metal chair.

And then the curtains were raised.
Bishop was calm and even curious.

(See Page 6, Column 1)

/)onday /O 22777
egin’s government reels — i"

»

+

Puppet show, ©“

aime

i a eS

DETECTIVE

a IVS a ane bs) <5 EBAY Ge gla
eee ce ee mie GE se Oo

bs

i Bile.

Although this contention seemed
far-fetched to experienced observers,
the confessed slayer made a good im-
pression on the witness stand. The
handsome and impassive appearance
that seemed to weigh against Van
Dalen in his plea were not character-
istic of this. second huge murderer.
Seemingly abjectedly sorry for his
crime, the slow-moving, sae,
one-eyed prisoner obviously’ arouse
the sympathy of the jurors in. Judge
Joseph Artl’s courtroom, for they
found him guilty of first-degree man-

SOOM ck oe , %

slaughter on May fourteenth; 1948.
Richard. Mullee— pretty, disillu-
sioned Viola Zinn’s last escort in the
gonering night spots—must serve
from one to twenty years for his part
in the woman’s death. The homicide
team of Pagel and Boyette was con-
gratulated by the local press for one
of the quickest solutions to a Cleve-
land murder on record.

Although the unstable killer may

‘be a sorry figure, no one can doubt

that his prompt removal from society
was imperative before his great

strength was used to snuff out other

lives. Officials believe he will serve
.the maximum time for the crime,
since’ he was wanted as a parole
violator at the time of his arrest on
the murder charge.

Enrror’s Note: The names Angelo
Farrenti and Green in the foregoing
true crime story are fictitious in order
to protect the identities of innocent

. persons questioned by the police. The

names Hotel Hersey and Dick and
Mae’s Café are also fictitious.

“<F

REAL

on U. S. Highway 99, rapidly putting
distance between the trio and the re-
formatory. “There’s an extra rod for
you, Thomassen, in the glove com-
partment. Here, Blake, you're gonna
do the driving, and now’s a good time
to start.”

So Blackwell slowed the Buick to
a halt on the highway shoulder, and
Blake took over the wheel.

“We'll go right down to Reno and
pick up some easy dou h,” Blackwell
continued after the. driver switch.
“Then we'll hole up and take it easy
for a while until things cool off. ’'m
pretty ‘hot’ in Utah and Colorado
right now, so we'll stay away. from
there. California’s a good place.
Might be better, though, if we went
to Mexico. But we’ll take care of that
when the time comes.”

As Blake bored the Buick south-
ward through the night, Blackwell
told boastfully of his robbery exploits
since his escape and also how just
three days earlier he had taken care
of the “squealer,” Wold, at Tacoma.
Whenever Blackwell grew silent,
questions from either Thomassen or
Blake prodded further details out of
hi

m.

“Why hit the Safeways all the
time?” Thomassen demanded. “It’s
a wonder they didn’t wise up and put
the lug on tive
* “Aw, hell, they were a soft touch,”
responded Blackie, “You can always
count on ’em having a gob of green
around—and what’s more, their cash-
iers are always right near the door
and a single operator can skip out in
a hurry. We’ll knock one over down
here and I’ll show you how it’s done.”

“Tt’s okay ‘by us, -eh, Blake?”
Thomassen nodded. ‘Geez, it smells

ood—this air. Somethin’ about the

‘all of the year I’ve always liked.”

“Yeah—but say,” Blackie went on
somewhat absent - mindedly,

uys’ll need some cash yourselves.

ere, Thomassen. You, too, Blake.”
He handed each several large bills
from a roll he carried in his pocket.
“This is Colorado money, guys. Not
silver, either, but Colorado money just
the same. Got it in the Greeley job.
I scrammed out of there fast after

”

“With thirteen hundred bucks you
could afford to!” Thomassen rejoined.

“Nice haul, all right,” tacked on
Blake. . }

Wren daylight came on Novem-

Saved

\ ' .

one town, and-Blackwell got out to
buy the others a change of clothing
so they could get rid of their blue
denim reformatory uniforms.:

“Pick me up some gabardines,
willya?” Thomassen ge ey

“And get me a sport shirt and some
of those light plaid slacks,” added
Blake, brushing his long, sandy hair
back out of his eyes.. “We’re lucky—
we all wear the same size clothes, so
anything that’ll fit you, Blackie, is
just about a cinch to fit us.” .

With their only pauses a few min-
utes to don the new clothing and brief
stops to get gasoline and grab hasty
sandwiches, they rolled steadily on
their way to Reno, a 1000-mile trip
from Monroe. Either Thomassen or
Blackwell spelled Blake at the wheel
when the latter became weary and
needed a nap. .

Once they drove off the highway a
short distance and stopped for target
practice. :

“I. don’t mean to be taking a slug
before I can paste one into the other
guy,” Blackwell explained, firing at a

tin can.
“Not bad, not bad atall,” Thomas-
sen remarked as Blackie’s bullets
bounced the can across the desert
sand like an over-sized Mexican
jumping bean, “You're no slouch
with a rod, I can see that.” .
The night of November 6, the trio
ulled into “The Biggest Little City
in the World”—Reno. | ;
“Geez, look at those lights, willya!”
Thomassen whewed. “This is the stuff
for me. I been away too long!”
“Where’ll we park the bodies?”
Blake put in. — :
“Drive around town for a minute
or two, and I'll pick out a hotel,”

_ Blackwell told him.

“you.

ber 6, the three were well into

Oregon. After stores began to open .
for business, they halted the Buick in
’ eee i, - ililiaae alli we rors

After a few blocks, Blackie spotted
what he wanted.-

“That one over there looks all right .

to me,” he said. “Pull up.” It was
the Carleton Hotel, 218 Sierra street,
and the three went in and registered,
signing under aliases. They were
given a two-room suite with a bath-
room, and-—-worn out from the long
ride—the three went to bed almost

immediately. . - :
While having breakfast the next
morning, Blackwell decided they

should go to Truckee, just across the
state line in California, and look over
the border town for robbery prospects.
This they did in the forenoon. Not
finding a likely place, the returned
to Reno and “cased” the Safeway store
‘at Fifth and Virginia streets. Black-
well turned thumbs down on. the

My. Slugs for Coppers”

(Continued from page 25)

store because it was too large for
their purpose. After this decision,
they walked around town and visited
a couple of bars for a few drinks.
By now it was nearin mid-afternoon,
and impatience reared up in Thomas-
sen.

“Let’s get going!” the rasped as they
sat at a dimly-lit table away from the
bar of one of Reno’s many drinking
establishments. “No use wasting any
more, time than we have to. I want
some action.”

“Me, too!” echoed Blake.

“Shut up, you guys!” Blackwell
countered. ‘ “I’ve been thinkin’, and I
know what I’m doin’. You saw that
bar down the street called Charlie’s,
didn’t you? (Charlie’s Cocktail
Lounge, 325 South Virginia street.)
Well, it looks’ good to me. It’s got a
rear exit. We're gonna take it first.
Tommy, you and I'll goin. You go to
the back end of the bar and I’ll stay
up front. We'll order drinks, and
then put the rods on ‘em. Blake, you'll
drive. Got it now? Okay, c’mon, we'll
get the car.”

. At approximately 3:30 p.m., Blake
parked the Buick on a side street
close to Charlie’s Cocktail Lounge.

“Keep the motor running,” Black-
well said quietly as he and Thomas-
sen got out,

LACKWELL stood at the bar just

» inside the door and ordered a
drink. Thomassen sauntered to the
far end of the bar and did likewise.
Suddenly, the proprietor and bar-
tender Charlie Frisch, found himself
confronted by Blackwell’s pistol. The
several other patrons in the bar
simultaneously were covered by
Thomassen.

“Gimme your door keys!” Blackwell
demanded of Frisch. “This is a stick-
up! Take it easy and you'll be all
right. Just don’t get excited. Hand
over those keys pronto!”

Without ado, Frisch did as he was
told, and Blackwell locked the front
door of the cocktail lounge and tore
out the bar’s telephone wires.

Thomassen briskly moved behind
the bar and rifled the cash register and
two cash drawers and forced Frisch
to empty the cash from his pockets.
In one of the cash drawers, Thomas-
sen found a bag of silver coins. He
rammed currency in his
picked up the bag of silver. . It was
so heavy he had to cradle it with both
arms to carry it. - :

“Let’s go! Let’s go!” staccatoed
Blackwell. Rapidly, the two sidled to
the rear door, Blackwell covering the

ckets, then

_ bartender and

Thomassen pr
door.

“Stay where -
for five minut
that sticks his
gonna get it |
warned. Ther
door keys just
way, ducked
‘Thomassen aro’
Blake was sitti
Buick.

“Scram outa
ed, darting a b:
shoulder.

‘: septa ‘
ily projected |
trafte. For a
around town.
that all road
would be clos
holdup, so‘he |
within the cit;

“What's the
asked when Bl
had subdued t

“Plenty!” re
damn bag he
have a coup]
Blackie?”

“Yeah, migh

“Geez, that
shooting fish i
tough about i:
silver. I nev
stuff before to
by cripes.”

‘They’re n¢
minded Black
Next time it 1
member, if we

‘using your roc

on ’em and w:
the thing to c
other clothes.
Blake. Park

As soon as
sen had left C
roprietor—sv
ice. Detectiv
Roy Geach w:
of the two
spread a wide
the loot total

As Geach a:
all details of
and his two cc
ing store buy:
rough clothir
purchases, the

and placed t
and Thomass¢
Blake went to

bottles of Old
Blake’s brief
Thomassen p.
This time it w
way No. 40 tz
Street.
“Luck’s wit
et another o1
lled in for E
turned with
the same app)
lie’s, only tl
closer, Blake.
helluva hurr)
_“Gimme a
pints, first,” ”
: At 6:25 Pp.
the Charlie’s
rupted by a t
ter Poncino, |
U. S. Highwa
“T’ve just b
yo punks
into the telep
“What's _t!
desk sergean
“Both of ’


Room where final shooting affray took place. Staiu
on earpet is where Geach fell after being drilled
by Blackwell who was concealed in adjoining room.

James Blake. He drove getaway car for the slick

holdup gang, was not present during shooting. He
got off with sentence of 5 to 40 years for robbery.

plish two jobs he had been set on doing ever since his
escape.

Rk“ the time of his sentencing to the reformatory
from Tacoma, Washington, Blackwell had never for
a moment let the idea of escape leave his mind. He had
an insistent craving for revenge on a former juvenile
gangmate—17-year-old David Wold of Tacoma—and
this egged on his desire for escape. Blackwell consid-
ered Wold had “squealed” or “ratted” on him in the rob-
bery and wounding of a Tacoma grocer, Robert Schroe-
der, in the fore part of 1946. As a result of this crime
Blackwell was sentenced to a minimum of three years

in the reformatory on a second degree robbery charge.

Free again, now, the first of his two pending jobs was
revenge against young Wold. The second was to arrange
for the escape from the reformatory of two youths with

_whom he had become acquainted after he was sent to

the institution. They were Arnold John Thomassen, 22,
of Syracuse, Nebraska; and James Ernest Blake, 21, of
San Francisco. Thomassen was sentenced to the reform-
atory from Seattle for armed robbery, and Blake was
sentenced, also from Seattle, for car theft.

The month of October, 1947, was fast running out as
Blackwell stayed for a few days in the Seattle Y.M.C.A.,
laying‘his plans. He was familiar with young Wold’s
habits and knew he frequented the corner of Tacoma’s
llth and Kay Streets almost every Sunday afternoon
and evening. This, Blackie figured, would provide the
best opportunity for an ambush.

So, on the Sabbath of November 2, 1947, he boarded
a bus at Seattle and rode the 30 miles south to Tacoma
and lay in wait for the Wold youth as the latter ap-
proached the corner with a friend at 6:15 that evening.
Wold glimpsed Blackwell almost as soon as he stepped
away from a building with his pistol out. When Wold
saw the gun, he started to run.

“Don’t do it, Dave!”’ the youth screamed. “Don’t do it!”

“You damned squealer!” Blackwell yelled as he
started firing. ‘You'll never rat on me or anyone else
again!”

Three of Blackwell’s shots struck Wold—all in the legs
—and felled him. By coincidence, two Tacoma prowl
car patrolmen happened to be going by the street corner
when the shooting began. But it developed so rapidly
that they had only a quick glimpse of Blackwell before
he scooted down an alley and out of sight in the dusky
light.

Although seriously wounded and suffering from shock,
Wold was able to tell the officers the identity. of his as-
sailant, and a thorough search of the area and Black-
well’s known previous haunts was undertaken. It was
to no avail, however, for Blackwell had slipped through
the net and quickly returned to Seattle. He stole a
Buick automobile for the trip back. Earlier he had
abandoned the stolen car in which he drove from Butte
to Seattle.

After shooting Wold, Blackwell laid low in the
Y.M.C.A. on Monday, November 3. The next day he
went to a Seattle store and bought a length of strong
rope, a grappling hook, and some hacksaw blades. ‘“‘Got-
ta do some dragging work out at.our ranch,” Blackie
explained to the clerk as he took the equipment out to
stash it in the stolen Buick.

With these preparations, he was ready for his second
undertaking—that of engineering the escape of Thomas-
sen and Blake from the reformatory. On Wednesday,
November 5, he drove from Seattle to Monroe. That
afternoon he parked the car a safe distance from the
reformatory and went to sleep in its front seat. About
9 p.M. Blackwell awoke and drove nearer to the re-
formatory.

Careful to see that he was unobserved, Blackwell re-

‘moved the rope, grappling hook, and hacksaw blades

from the Buick and sneaked his way to one of the dark-
est places along the 14-foot-high reformatory wall. For-
tune was with him, for on the other side of the wall, al-
most opposite, was the prison power plant, where he
knew his pals, Thomassen and Blake, worked as trusties.
He attached the grappling hook to the rope and, with his
first try, caught the hook on the top edge of the wall.
Then he climbed up the rope and over the wall, pulling
the rope after him. Once inside, he dug a hole and buried
a pistol, 49 rounds of ammunition, and the hacksaw
blades in the prison yard.

“These’ll come in damned handy later if things don’t
go right,” Blackie breathed excitedly to himself as he
patted a last handful of earth over the objects. “I won’t
be back in here for long, by God, if we do get jammed

Washingt«
| station (1
spirit aw:

This tak
prison pow
watchtowe

“p-s-s-
sen w
he spied t
paratus.
prise to T!
something
his escape.
help the «
ever got
“means of :
the yard
they got o
“Geez, |
grasped B
place insic
gotten. fF
. wait’l
terval ga\
the thumy;
\ “Hey, B
ie’s back,
“C’mon
manded wv
later. C’?
Outside
Blackwell


well lies im a coma

et)
“gee

el with the cops. He

‘d murder charge.’

on his alarm whistle.
lackie) Blackwell, who
ashington, family, was
of the most daring and
worded in the West.
aind the coastal moun-
on as the 22-year-old
the thick woods that
1 the distance he could
.ounds that led a group
; officers in pursuit.
ickwell headed for the
through the rich farm
:own of Monroe, Wash-
cory is situated. Cross-
’s parked car and ap-
get the motor running.
astily, he picked up the

ie crept along its west-

Arnold J. Thomas-
sen in leg irons after
a wild fight withcops
in Reno hetel room.

prison break started
three youths off on a
fantastic crime career

that ended up with murder

The West’s most sensational

By HOWARD J. BRICE

ern bank until he found a moored rowboat. He untied
it, stepped in, and shoved off with an oar. Darkness
descended as the fugitive drifted downstream with the
current, and—safe from the hounds now—relaxed.

“Those dumb monkeys!” he grinned sardonically to
re ee “TI never thought it?d be so damned easy, by

Te fad
_ At a bridge over the Snohomish where U.S. Highway
99 runs south to Seattle, the youth guided the boat to
the bank and abandoned it. Up on the highway, he
hitched a ride into Seattle, 40 miles distant, and there
he ditched the stolen rifle.

“They’ll be looking for me around here,” he mused as
he stood on a street corner, ‘but I’ll give ’em the slip and
head east.”

From then on for the next 27 days virtually every
positive action taken by Blackwell was commission of
a felony—in rapid-fire order in four different states.

Stealing a car, he went to Spokane, metropolis of east-
ern Washington. There, he robbed a theater cashier of
$150, holding his hand in a pocket to simulate a pistol.
Then he crossed the state line into Idaho, where at Coeur
d’Alene he obtained an automatic pistol. From Coeur
d’Alene he drove directly south to Salt Lake City, Utah.
At Salt Lake City he held up a Safeway store and got
$350. Proceeding to Denver, Colorado, he robbed an-
other Safeway store. After Denver he went to Greeley,
Colorado, and stuck up still a third Safeway store. Here
he hit the jackpot—stuffing $1300 into his pockets before
he ran out of the store and stepped quickly into the
stolen car he had parked at the curb. ,

Now particularly “hot,” he stole a second car and
turned northward to Butte, Montana. At Butte he
bought two more pistols and then wheeled westward
toward Seattle again. With a fat wallet and a small
arsenal in his possession, he was ready at last to accom-


degree robbery charge.
is two pending jobs was
ae second was to arrange
tory of two youths with
ed after he was sent to
old John Thomassen, 22,
aes Ernest Blake, 21, of
sentenced to thé reform-
‘obbery, and Blake was
r car theft.

was fast running out as
in the Seattle Y.M.C.A.,
liar with young Wold’s
the corner of Tacoma’s
‘very Sunday afternoon
ired, would provide the

ber 2, 1947, he boarded
) miles south to Tacoma
youth as the latter ap-
id at 6:15 that evening.
‘tas soon as he stepped
pistol out. When Wold

screamed. “Don’t do it!”
lackwell yelled as he
t on me or anyone else

ck Wold—all in the legs
ice, two Tacoma prowl
ing by the street corner
it developed so rapidly
pse of Blackwell before
it of sight in the dusky

id suffering from shock,
3 the identity of his as-
of the area and Black-
as undertaken. It was
ell had slipped through
o Seattle. He stole a
back. Earlier he had
th he drove from Butte

well laid low in the
¢ 3. The next day he
ght a length of strong
hacksaw blades. ‘‘Got-
at our ranch,” Blackie
< the equipment out to

as ready for his second
‘ the escape of Thomas-
itory. On Wednesday,
ittle to Monroe. That
safe distance from the
1 its front seat. About
‘ove nearer to the re-

‘bserved, Blackwell re-
‘, and hacksaw blades
vay to one of the dark-
reformatory wall. For-
ier side of the wall, al-
ower plant, where he
ike, worked as trusties.
) the rope and, with his
' top edge of the wall.

over the wall, pulling
> dug a hole and buried
ion, and the hacksaw

ly later if things don’t
tedly to himself as he
r the objects. “I won’t
. if we do get jammed

Washington State Reformatory, near Monroe. Power
station (back center) is where Blackwell eame to
spirit away his two cronies over the l4-foot wall.

This taken care of, Blackie then went directly to the
prison power plant, using shadows for concealment from
watchtower guards.

“P-S-S-S-T! P-s-s-s-t!” Blackwell signaled Thomas-

sen when—through the door of the powerhouse—
he spied the latter tinkering with some generating ap-
paratus. Blackwell’s sudden appearance wasn’t a sur-
prise to Thomassen. He and Blake had been expecting
something like this to happen since Blackwell made good
his escape, for Blackwell had promised to come back and
help the other two gain their freedom if and when he
ever got out. Often the trio had discussed ways and

“means of escape when they managed to get together in

the yard during exercise periods or when, by chance,
they got on the same work gang.

“Geez, I’m glad to see you!” greeted Thomassen as he
grasped Blackwell’s shoulder and guided him to a safe
place inside the power plant. “We was afraid you’d for-
gotten. How’d you do it, anyway? But wait a minute
... wait’ll I get Blake. He’s right over here.” The in-
terval gave Blackwell time to get his breath and calm
the thumping in his breast. :

“Hey, Blake,” Thomassen whispered hoarsely. “Black-
ie’s back, by God. Hurry up, he’s right here.”

“C’mon, let’s get th’ hell outa here,” ‘Blackwell com-
manded when Blake joined them. “I’ll give you the dope
later. C’mon!” 2

Outside the power plant, hidden by deep shadows,
Blackwell told the other two about the.rope and grap-

Capt. Joseph Geach of

the Reno force who met

death in line of duty.
«

pling hook, and the waiting Buick. Quickly and quietly,
the three reached the darkened spot where the rope
hung down from the wall. Then over the obstacle they
went—Thomassen first, then Blake and finally Black-
well. With Blackwell in the lead now, the trio hurried
to the stolen Buick and got in. Blackwell—familiar with
the surrounding roads—seated himself in the driver’s
seat and stepped on the starter. Almost silently he
meshed the gears, and away the trio went, heading south
in the crisp November night air.

“Well, guys, we’re Reno-bound,”’ Blackwell told
Thomassen and Blake as he pushed the Buick’s speed-
ometer up to 70 miles an hour (Continued on page 72)


764 ~=sCNNe.

cle. The defendant struck Budzien over the
head with the butt of his gun three times.
Budzien awakened and asked why he was
being hit. Defendant told Budzien that he
was going to rob him and take his car. The
defendant removed money from the pockets
of Budzien while the two were still in the
vehicle and then ordered Budzien out the
left rear door. . Outside of the vehicle the
defendant proceeded to remove the money
from the shirt pocket of Budzien, and
Juszcezak and Cole, in an endeavor to save
the man who had befriended them, left the
vehicle. Cole went around the back of the
vehicle and approached Budzien as Juszczak
approached Budzien from the other side.
In view.of. both Juszczak and Cole defend-
ant. raised the revolver to the right.temple
of the deceased and pulled the trigger. Cole
and Juszezak froze in their tracks. .

Defendant testified, “The only thing I
can remember real well is when the gun
went off. I remember pulling the trigger.
I don’t know why I shot the man; I real-
ized what I had done when the gun went
off, because I had the gun in my hand.”
When the body of the deceased slumped to
the ground the defendant, looking at the
prostrate form at his fect, made the state-
ment: “Te’s deader than a mackeral”. He
ordered the boys to dig a grave and he re-
moved a tire iron from the trunk of the ve-
hicle at the same time asking Dyer to get
cartridges out of the suit case'so that he
would not have an empty chamber in the
revolver. He loosened the dirt with the
tire iron while the other boys dug with their
hands and then the defendant pulled the
body of the deceased from the point where
it had fallen to the shallow grave. Before
burying the body the defendant said that he
would blow the face off the deceased so
that he could not be recognized and further
that he would destroy the laundry mark-
ings in the clothing and.burn the clothing.
The boys were able to talk the defendant
out of this and the body was covered. ‘The
defendant expressed his intention of re-,
turning to dig the grave deeper so that the
vultures would not be attracted to that spot
and the attention of by-passers called to the
location of the body. They returned to the
vehicle where the defendant searched the

=

265 PACIFIC REPORTER, 2d SERIES

glove compartment for any other valuables
the deceased may have had, They. then
drove to the main highway proceeding back
towards Las Vegas, Nevada, and stopped

‘along the way to obtain gasoline for the

vehicle. They next went to the Igloo in
Pittman, Nevada, to secure a room and the
defendant went in to register. Not know-
ing the license number of. the vehicle he
asked that one of the others accompany him

and his friend Harry Dyer, was called to

the manager’s office to register with the de-
fendant. Juszezak, Cole and ,Melski re-
mained in the vehicle and as the defendant,
Dyer, and the manager of the motel went
into a room, Juszczak turned the vehicle
around and sped out into the highway, pro-

eceding on,into.Las Vegas, Nevada, as fast

as the vehicle would travel, , Dyer testified
that while he was in the motel with the de-
fendant after the three Buffalo boys had
left, the defendant became enraged becaus:
the car had been taken and stated that he
killed the man for nothing; because he
wanted the car and now the car was gone,
it was all for nothing; if he had known the
boys were going to do this he would have
killed them too. | |

At an intersection in Las Vegas, Nevada,
Juszczak observed a Las Vegas Department
Police car. He spun the vehicle around,
stopped in the middle of the street and the
three New York boys ran over to the po-
liceman to report what they had witnessed.
The policeman quieted them down, radioed
the Sheriff’s Office that he had made con-
tact with the boys, placing them in his ve-
hicle and returned to the intersection by the
drive-in where the two boys from Missouri
were waiting with other officers. All pro-
ceeded back to the motel where the three
Buffalo, New York boys had last seen the
defendant and Harry Dyer. They searched
the motel, but were unable to find either
of them. One of the sherifi’s vehicles pro-
ceeded down the highway with the five boys
and walking in the opposite lane of trafic
were the defendant and Harry Dyer. They
were ordered-over to the vehicle with their
hands up and the murder weapon was re-
moved from the belt of the defendant. De-
fendant and Dyer were taken in another
vehicle to the point where the dirt road

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Nev. 761

Cite as 265 P.2d 761

STATE v. BOURDLAIS.
No, 3743.

Supreme Court of Nevada.
2 Jan. 15, 1954,

Rehearing Denied March 19, 1954.

Prosecution for murder committed in
course of robbery. Defendant was con-
victed, the Eighth Judicial Court, County of
Clark, A. S. Henderson, J., denied motion
for new trial and sentenced defendant to
death, and defendant appealed. The Su-
preme Court, Eather, C. J., held that evi-
dence supported verdict,

Judgment affirmed.

{. Criminal Law ©=55

_ Statute which provides that defendant’s
intoxication does not mitigate crime but
that intoxication may be considered in de-
termining existence of intent where intent
is necessary element of crime, does not re-
quire that jury consider fact that defendant
drank before commission of crime. N.C.L.
1929, § 9966,

2. Homicide €=340(2)

In prosecution for murder committed
in course of robbery, where there was evi-
dence that defendant had been drinking
but no evidence that defendant was intox-
icated at time crime was commited, instruc-
tion that drunkenness is no defense to crime
and that drunkenness can be considered
only in determining degree of crime or de-
fendant’s sanity at time crime was commit-
ted, if erroneous, was not prejudicial. N.C.
L, 1929, § 9966.

3. Homicide €=294(2)

In prosecution for murder, requested
instruction that jury must find defendant
not guilty if they find that, due to insanity
or intoxication, defendant was incapable of
forming intent to commit crime was proper-
ly refused, since it would have precluded
verdict finding defendant guilty of involun-
tary manslaughter.

4, Homicide €=294(1)

In prosecution for murder, instruction
that defendant is presumed sane until
proven insane and that question of sanity

265 P.2d—4814

PIR yk Al RR AON 3,

is out of case if evidence tending to prove
insanity does not outweigh evidence tend-
ing to prove sanity, correctly stated law.

5. Criminal Law 1172(1)

In prosecution for murder, two in-
structions which dealt with extent of proof
necessary to prove insanity, although they
were repetitious and should have been com-
bined, did not place such emphasis on de-
fendant’s burden of proving insanity as
would result in miscarriage of justice or be
prejudicial to defendant.

6. Criminal Law €=474

In prosecution for murder, where there
was no evidence’ that defendant was insane
and where jury was instructed to determine
facts for itself, admission of testimony by
expert witness as to defendant’s sanity and
ability to tell right from wrong at time
crime was committed was not error.

7. Criminal Law ©=822(4, 14)

In prosecution for murder, instruction
that jury was to use same rules in weighing
testimony of expert witnesses as are used
in weighing testimony of other witnesses
did not, when read in its entirety, constitute
judicial comment or place undue weight up-
on testimony of expert witness.

8. Criminal Law G=1159(2)

lf there is substantial evidence to sup-
port jury’s verdict, Supreme Court will not
weigh evidence or disturb verdict.

9. Criminal Law @=1165(1)

Verdicts in criminal cases will not be
reversed for mere error or irregularity, but
only where there is error prejudicial to de-
fendant’s rights.

10. Criminal Law €—633(1), 641(1)

A defendant in criminal prosecution is
entitled to full and fair presentation of case
to jury of unbiased citizens, and is entitled
to have his rights safeguarded by competent
counsel.

11. Homicide €=253(6)

In prosecution for murder committed in
course of robbery, evidence was sufficient
to support conviction.

Wats aed Soowdlsionaebaaet Bai {igs eine apa amy


Jack J. Pursel, Las Vegas, for appellant.

William T. Mathews, Atty. Gen., George
P. Annand, John W. Barrett, and Wm. N.
Dunseath, Deputy Attys. Gen., Roger D.
Foley, Dist. Atty., George M. Dickerson,
Deputy Dist. Atty., Clark County, Las
Vegas, for respondent.

EATHER, Chief Justice.

The defendant is the appellant, and the
plaintiff is the respondent in this court.
The parties will be referred to herein as
plaintiff and defendant as in the’ lower
court.

Ferdinand Bourdlais, also known as, Ver-
non Bourdlais, was tried, convicted, and
sentenced to death upon a charge of mur-
dering Ward Budzien, Sr., on or about May
21, 1952, and he has appealed, contending
that his trial was not fair nor in accord-
ance with law.

As to who committed the homicide or
how or why it was committed, there is no
conflict. There may be variance in the de-
tails of the story but if so they come from
the defendant’s and not the state’s evidence.
There were many disputes and controversies
in the course of the trial involving questions
of procedure and law, but the all-important
question, and the only real one on the merits
of the case, was whether defendant at the
time he took Budzien’s life, was mentally
deficient. Defendant contends that he had
been imbibing intoxicating liquor; that the
coupling of his mentally retarded personality
with the effects of intoxicating liquor pro-
duced a mental condition under which he
did not at the time realize the nature or the
consequences of his act and that it was
wrong.

‘The state insists that the killing of Ward
Budzien, Sr., by the defendant at the time
and place alleged in the information, was
committed in the perpetration of robbery,
and was, therefore, murder in the first de-
gree,

That we may have the picture before us
in the consideration of defendant’s com-
plaints we here give a condensed synopsis
of the salicnt features of the evidence.

On the evening of May 19, 1952, Ferdi-
nand A. Bourdlais, also known as Vernon

762 = “Nev. 265 PACIFIC REPORTER, 2d SERIES

A

Bourdlais, the defendant, was in Los Ange-
les, California where he met Harry Dyer in
a bar. The two’ determined to travel east
together and stayed in an hotel that evening.
While in the hotel room the defendant dis-
played a 38-caliber revolver and expressed
his intention of robbing people as the oc-
casion demanded in order to finance the
trip across the country. In this Dyer ac-
quiesced and the bullets were packed in
Dyer’s suitcase as were the bare necessities
for the trip. The rest of the luggage of the
pair was checked at a Railway Express Of:
fice in Los Angeles, and after both had
breakfast in Los Angeles they started hitch-
hiking eastward on U. S. Highway No. 66.

At about the same time in the morning
as the defendant and Dyer left Los Angeles,
two other groups of young men left Los
Angeles for points east. One group in-
cluded Joseph Juszczak, age twenty-three,
Arnold Cole, age twenty-two, and Boleslaus
Melski, age eighteen, all of Buffalo, New
York, who had unsuccessfully sought work
in the Los Angeles area and were travelling
to Detroit. The other group consisted o!
James Cockrell, age seventeen and Daryl
Andrews, age seventeen, two recent grad-
uates of Sarcoxie, Missouri High School,
who had journeyed to Los Angeles for sum-
mer employment to finance their continued
studies in a small Missouri college. They,
because of their age, had also been unsuc-
cessful in securing employment and were
returning home.

On May 20, 1952, the deceased, Ward
Budzien, Sr., age forty-seven, a Los Ange:
les salesman, driving a 1949 Buick four-
door sedan, picked up the two Missouri boy’
a few miles beyond San Bernardino, Cali
fornia, city limits, and ten miles further
down the highway, the three Buffalo, New
York boys were picked up. The group pro.
ceeded on, with three occupying the front
seat and three the back seat. The deccased
(Ward Budzien, Sr.) observed the defend
ant (Bourdlais) and Dyer standing beside
the highway at the intersection of U. §
Highways 191 and 91 and told the occupants
to make room so that they could also secure
a ride, as he had hitchhiked himself when
he was young. The deceased had been
drinking to the extent that he was intox)


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STATE v. BOURDLAIS Nev. 763
Cite as 265 P.2d 761

cated before he picked up the hitchhikers.
His driving became so erratic that he was
asked by Daryl Andrews to let him drive.
The deceased (Budzien) took a rear seat,
Daryl Andrews took the driver’s seat and
the group continued on. The deceased of-
fered all occupants a drink, but no one
other than the defendant took the bottle.
They stopped in Barstow, California, for

gasoline and the deceased sent defendant

after another pint of whiskey. When the
defendant returned with the whiskey he
noticed a roll of bills in the shirt pocket
of the deceased and according to his own
testimony: ‘When I bought this whiskey
for that man, this Mr. Budzien, and return-
ed the money to his shirt pocket, I noticed a
roll of bills there and I figured I would rob
him of his money”.

The group continued on to Baker, Cali-
fornia, where they stopped to eat. While
entering a roadside cafe, the defendant said
to his companion Dyer, “I’ve got something
cooked up”. Dyer said, “So lay off the
whiskey.” Defendant responded, “I’m not
drinking, I’m only pretending. I stick my
tongue in the bottle to stop the liquor from
going down my throat”, and while in the
cafe defendant reiterated to Daryl Andrews
that he was not drinking but sticking his
tongue in the bottle. All of the parties had
something to eat and although the defendant
only remembers having had coffee, Andrews
testified that the defendant ate and he be-
lieved he had a sandwich. After the meal
was paid for out of funds supplied by the
deceased (Budzien), and cigarettes pur-
chased, the parties resumed their places in
the vehicle. In the front seat, Andrews
was driving with Cockrell next to him.
Dyer next and Juszczak beside the right
front door. In the back seat the deceased
sat next to the left door, the defendant be-
side him, Cole beside the defendant and
Boleslaus Melski next to the right rear door.
Although defendant testified he drank
throughout the trip, Melski and Cole tes-
tified that no one in the car had anything to
drink after eating at Baker, California, as
did Dyer, who had been afraid defendant
might get drunk and he would have him on
his hands in Las Vegas, but who lost con-
cern over defendant becoming intoxicated

as they travelled along. Budzien had fallen
asleep and the occupants in the back seat
were discussing the problem of. hitchhikers
with drivers of vehicles who would stop and
as the hitchhiker approached to get in they
would pull away. The defendant said, “If
anyone’ did that to me I’d fill him full of
holes—I’ve got the thing to do it with”. He
then removed from his belt the 38-caliber
revolver. It never left his hands for the re-
mainder of the trip, although defendant and
his friend Dyer contended that Cole handled
it at one point. Defendant was asked to put
it away and he stated he was going to rob
the deceased (Budzien). He feigned ill-
ness and asked Andrews to stop the vehicle.
He awakened Budzien and asked him to get
out, but was told by Budzien and Cockrell to
get out by the other door. He closed the
door, struck Cockrell on the arm and the
group continued on for a distance of thirty
miles when, with the revolver in his hand,
the defendant leaned over the back of the
front seat and asked if the boys wanted in
on robbing Budzien, or as the defendant tes-
tified, “I did ask the other boys if they
wanted in on the robbery or in on taking the
money”. The two youngest, Cockrell and
Andrews, said they did not and asked to be
let out of the vehicle in Las Vegas. Pro-
ceeding on into Las Vegas, Nevada, and
after passing through the outskirts of the
city, Andrews and Cockrell were permitted
to leave, but admonished by the defendant
not to say anything to the police. As
Juszezak helped them remove their luggage
from the trunk of the vehicle he asked them
to remain as the five of them could get the
gun away from the defendant, who re-
mained in the vehicle beside Budzien. The
Missouri boys, however, were too frightened
and went immediately to a drive-in and re-
ported the incident to the police. The others
proceeded on with Juszczak driving, Dyer
beside him and Melski beside the right front
door. Budzien still sleeping, occupied the
left rear seat, defendant next to him and
Cole by the right rear door. At a point be-
yond Henderson, Clark County, Nevada,
Juszczak was directed by the defendant to
pull off the main highway onto a dirt road.
They proceeded up the road until the de-
fendant directed Juszczak to stop the vehi-

SOM ARE pM


% ae

from her vantage point at the change
booth about eight feet away, could see
the weapon.

But it was too late. Thompson had
already caught up with the robber and
was struggling with him. He saw the gun,
by now, and was trying to get it away
from the man. The two went to the floor
and the gun went off. Thompson
slumped on the floor and the gunman
started to get up. Ballard had been run-
ning toward the two struggling men in an
effort to help out the pit boss.

When he heard the gun go off, he turn-
ed around and made a quick retreat. The
gunman had seen him coming and, even
though he was now running away, he shot
the bridegroom in the back.

The gunman then scooped up some
bills Miss Crawley had dropped on the
floor in the midst of the confusion and ran
out the door. He jumped into a car and
sped off down the street, tires squealing.

A passer-by fired a shot as the gunman
‘drove away. The shot struck the auto on
the passenger side, shattering the window
glass.

Although the unknown passer-by did
not manage to hit the gunman with his
bullet, his action was to give police their
first clue in the case.

Neither Ballard nor Thompson was
dead, but both were wounded seriously.

Because it was possible one or both of
them might die, homicide and robbery
details from the Las Vegas Metropolitan
Police Department worked together.
Both Homicide Detective Herb Barrett
and Robbery Detective George Helm
responded to the call at the El Morocco

* 38

pone ane io ee

Suspect was apprehended in this house trailer in Boulder City while he napped.

Casino just minutes after the gunman
fled.

In his haste to get out of the casino, the
gunman left behind his wig. Helm looked
the wig over while Barrett set about
questioning casino patrons. The descrip-
tions of the gunman were many and
varied. It is not unusual to draw anumber
of conflicting descriptions in a case like
this, so Barrett wasn’t too upset or dis-
couraged with the early going of the in-
vestigation.

He was more interested in the fact the
window had been shot out of the get-
away Car. .

Barrett and Helm remained at the

~ casino questioning witnesses and conferr-
ing with identification experts who were
combing the crime scene for whatever
clues might be available. They dusted the
areas the gunman was believed to have
touched at the casino cage in the hope he
might have left behind an identifying
fingerprint.

Meanwhile, across the street and up the
Strip about a third of a mile, a pit boss was
getting off his shift at the Frontier Hotel
and Casino. Word of the El Morocco heist
had spread quickly through the Strip. The
pit boss had heard it all. He had even
heard about the window being shot out of
the get-away car and that is why the auto
in the front lot of the hotel caught his
attention. It was a brand new car witha
shattered window on the passenger side.

It fit the description he had heard about
the get-away car.

The pit boss looked down the Strip to
the El Morocco and he could see there
were still police vehicles there. He could

- that had been stolen from the Union lr"

see the truck the crime lab officers i, | ot engie and Thompson are doing?”
"he mn fom the Freer hag fa Tigel er Ihave that Thm
wasted no time in driving to the B. te he the other
Morocco to tell police officers thereofhe > Se replied ag’. Re robbery detec-
find. j :
+ it was shortly after noon that detect;
Barrett and Helm drove togethertote . : Mace: etectives
Frontier to look over the suspect vehick i op Sedan nia baste 7 pe
In the glove box they found papery F ga rg ee OF
dicating the auto had been leased the | The <i el grag parking soe
fea acs : ; € persons
very day. 1 he man it had been leased te tera Meglisio and ; pa Ai <
was a Jesse Bishop, who gave the leasing Mer a postal employee. The Neches
Garden Grover California: a2 senan tld police of being kids ee
varden Grove, California. f ier own car and, when the siliiee taking

“See if this car has been r
stolen,” Barrett said to Helm. “T'll che | Port ee her story and the story of
‘esyer, whose postal jeep had been

and see if we've got anything on this Jen
Bishop. If it hasn’t been reported stolea! / a. thought Barrett and Helm
would say Bishop is our man.” The ar it is é
Helm could find no evidence of the Res her, _ w had been kid-
car’s being stolen. No one had reported# i oe 2 he ace car by a gunman who
missing, anyway. A check with the lew + | anger a grocery store parking
ing company brought a description of the _ fi isto. sh an He jumped from
man who had leased the auto that mated in Th, > h said, and forced her into
ed ‘some of the descriptions offered by en he made her drive around

patrons of the E] Morocco. Since the gum - ite didn’: .
man wore a wig, no one at the case . seem to want to go to any

could give much of a description of bt | ote place,” she said. “I drove him

hair or facial features. The wig wat
designed to hide his forehead, whit
made a description of his face tough
come up with. us

Meanwhile, Barrett’s’ check wet
California authorities showed Bishop ¥®
on parole from a five-year-to-life priw®
sentence for robbery. It was the seca!
time he had been paroled on a robbey
sentence of five years to life. a

He had violated the first parole and bat
been returned to prison in California. Me
had recently been paroled again.

California authorities also told Barte®
that Bishop had spent the last 25 years
his life at odds with the law and had spe .
20 of those years in prisons and mental
stitutions. He had admitted 23 armet
robberies.

“Tle’s our man, all right,” said Barre®#
Helm as they talked over the case at
quarters. It was late now and both m®
were ready to go home, get a good nig *
sleep and come back tomorrow to pa
the case. ‘

Uniformed officers had been g*
photos of Bishop and would spend 8
night combing the ie area for _
hadn’t already managed to get away-

The robbery and homicide detect*

» were at work early the following dl ¢
Helm had a report on his desk of anae™ 7

Hotel parking garage downte*® —
sometime before dawn. He also hadbew*
given reports of two convenience m™ 7
hold-ups. ; ; is}

That was it for overnight crime #** —

_ Vegas this date. aK He

“It was a_ pretty slow night, * ; tragic fiasco

mumbled. actions ie

PRE BO cba 3

at motel, Jesse
€n went on crime spree
tified the entire city.

“Slow except for our bit of
El] Morocco,” said Barrett. “Any ‘

Inside view. of suspect's getaway car,

into North Las Vegas and then he spotted
this postal jeep. He made me stop my car
and we both got out. The jeep was parked
in front of a house and the mailman was
making a delivery. When he came back to
his jeep the man pushed me aside, pushed
the mailman away and drove off in the
jeep.

“That's right,” said Sawyer as the
woman told her story to the detectives.
The auto in which the gunman drove
into the grocery store parking lot was the
one that had been reported stolen from

the Union Plaza. The man Sawyer and the.

Meglisio woman described fit the Bishop
description perfectly.

“Let's get some men into the North Las
Vegas area,” Barrett told Helm. “Let’s
Concentrate on the spot where he took the

~ Jeep. Maybe someone else saw n=

Before either detective had time to
leave headquarters, word was telephon-
ed in that the postal jeep had been found
less than half a mile from where it had
been commandeered. A N orth Las Vegas
police officer, on patrol and aware of the
reported theft of the vehicle, was the one
who found it.

The time was near! two p.m.
December 21. Bishop had aes ae
appeared. No one had seen him abandon
the mail jeep. Residents of the block
where it was found were questioned by
the detectives, who drew nothing but
blanks,

By now word of the kidnappings and
commandeerings was being spread in
newspaper accounts and radio and televi-
sion reports.

Fear, as well as word of the Bishop

Passerby’s bullet shattered window glass.

crime spree, saturated the community of
Las Vegas.

_The roulette wheels still turned and the
dice still rolled, but there was quiet cau-
tion mixed with the levity of the Strip.

_ Where would Bishop strike again?
Would he hit another casino or kidnap
another citizen? Would he kill?

These questions haunted the citizens of
Las Vegas. As dealers, cocktail
Waitresses, bartenders and keno runners
changed their shifts along the dusky Strip
in the late December afternoon, they
showed an extra caution in walking to
their cars in the parking lots to the rear of
the hotels in which they worked.

No one wanted to be Bishop's next vic-
tim. For all he knew, the men he shot at
the El Morocco were dead. He could easi-
ly believe he had already committed two
murders and had nothing to lose by com-
mitting some more.

At six p.m. Dan McGuire, a driver for
United Parcel, who had not returned his
truck to the company garage at the end of
his shift a few hours earlier and who had
as a result, been reported missing by the
company, appeared in police head-
quarters in Boulder City, a community
some 20 miles from Las Vegas. Boulder
City. is located in Nevada, just inside the
Arizona state line.

McGuire told police he had been kid-
napped, in his own truck, by aman he had
seen. driving a postal jeep erratically in
North Las Vegas that afternoon. ;

The man produced a gun, said
McGuire, and said he wanted to be driven

around. He had no particular destination.
(Continued on Page 78)

39


|
z
;
fi
7

responding. “No, Mike had some books
at the house but I didn’t read them.”

Another question pertained to her say-
ing the arsenate was not doing what it was
supposed to do.

“Yes, | thought that the arsenate would
make him die right away,” Chasteen
quoted her answer.

A book titled “Fundamentals of
Criminal Investigation” was introduced
in evidence. A St. Louis County LD. Of-

‘ ficer testified that a thumbprint of the

defendant was found on a page dealing
with post mortem examinations of
poisoning victims.

The prosecution introduced the
testimony of a woman inmate at the St.
Louis County jail. She said that Mrs.
Kurtz told her she murdered her husband
and planned to marry a boyfriend, in a
conversation in jail.

The prosecution rested and the defense
centered its attack on the statement read
into the record by Detective Chasteen.

A_ psychiatrist called as a witness
testified he had treated both Mrs. Kurtz
and her husband, working with Mrs.
Kurtz for about a year and a half. She said
she had been under extreme stress caused
by marital discord and the prior death
of two children. .

“I did not notice a desire to kill her hus-
band,” he testified. “There were some
tendencies to hurt herself and not anyone
else.” He described her as “depressed,
desperate, trying to regain or please her
husband at the time.”

Regarding the statement read by
Detective Chasteen, the doctor testified
that Mrs. Kurtz may have been unable to
understand that she was confessing when
she signed it. It “would have become less
and less reliable as the questioning went
on,” he said.

Mrs. Katherine Kurtz took the witness
stand and denied giving poison to her
husband. She said she signed a statement
after a period of intensive questioning,
giving in to police pressure. She said that
when she signed the statement, “I didn’t

really care what I said or what happened .
‘to me.

“I was crying, shaking and trembling,
and very nervous and upset,” she
testified. “I didn’t care if I lived or died.
All I cared about was my two kids and
what would happen to them.”

She acknowledged she and her hus-
band had marital problems, which they
sought to work out through psychological
counseling. She admitted having an affair
with another man. ,

She testified that about two weeks
before her husband died, he became very
ill, apparently from the flu. She said she
begged him repeatedly to see a physician,
but he refused, despite the fact that his
condition continued to deteriorate.

She said that on the day Kurtz died, he
consented to being taken to a physician,
but was so sick he could not stand, and
became unconscious on several oc-

78

casions.

In his summation to the jury, the
prosecutor outlined the evidence that in-
cluded a confession, testimony of the in-
mate in the jail, the bag of arsenic in the
Kurtz home, and a thumbprint of Mrs.
Kurtz, on a page of her husband's
criminology text book dealing with post
mortem examinations of poisoning vic-
tims.

The prosecutor described how Michael
Kurtz deteriorated and suffered in the
two weeks before his death. ©

“He didn't deserve to die,” he said.
“And what is more, he didn’t deserve to
be tortured, which is what happened.”

The defense attorney noted a dis-
crepancy between Mrs. Kurtz’s signed
statement and the: testimony of
prosecuting witnesses. In the alleged con-
fession, Mrs. Kurtz said she walked to the
drugstore to purchase arsenate of lead.
Prosecution witnesses, however, stated
that Mrs. Kurtz sent a boy with a note to
purchase it.

The lawyer attacked the statement
from the county jail inmate, calling it a
“Wicked disgusting document that
shouldn't even be in a men’s room,

\ she heard... .“guilty of! first-dep@

anywhere.

“You will not forsake Kathy Kurt,”
said. “You cannot find this girl guilty
has suffered enough.”

The defendant twisted a handkerte
nervously during the arguments,

The jury of six men and six wong
began deliberations at 9:30 p.m. of
day, May 16th. They came back aboo}
a.m. Saturday with a verdict.

Mrs. Kurtz stood beside her attorney 4

murder, with a recommendation of le
prison. ..”

Mrs. Kurtz began sobbing and i
lawyer announced he would seek am
trial. The motion for a new triad wg
overruled, and the conviction wa #
firmed by the Court of Appeals. At
writing, Mrs. Katherine Kurtz is sere
life sentence in the Missouri Penitestie”
for Women.

Eprror’s Note:

Martha Hutchins and Albert Randewt
not the real names of the persons sow
ed in the foregoing story. Ficttes
names have been used because therew®
reason for public interest in the idext®
of these persons.

continued from page 39

Wedding Night

“I knew who he was when he said he
blew away a guy that tried to be a hero in
the E] Morocco Casino the night before,”
said the driver. “I read the newspapers
and I listen to the news on television. I
told him as long as he had the gun, the
truck was going to go wherever he
wanted it to.”

McGuire said Bishop was extremely
paranoid. He said the gunman believed
every auto they passed was an unmarked
police car.

Bishop, said McGuire, was convinced
he was going to die in a police shoot-out
sometime that night. He wanted it to get
dark so he could at least be able to see the
flash of fire from police guns and would
know where to shoot back.

“I took him out to Boulder Dam at his
request and, when it got dark, he told me
to slow down. Then he jumped out and
disappeared into the brush,” McGuire
told Boulder City Police.

Boulder Dam_ is located on the
Colorado River which acts as the
Arizona-Nevada border.

Barrett and Helm, who were working
longer hours than usual in the hope of
tracking down Bishop, were still at their
desks when Boulder City authorities con-
tacted headquarters irf Las Vegas with the
news of Dan McGuire and his encounter
with Bishop.

“If he thinks there’s going to bea shoot-
out, he probably won’t leave the area,”
Barrett reasoned. “He'll probably stay
right there to make his last stand. I don’t
think we'll have to worry about him slip-
ping away on.us any more.”

« the outlaw, but with no success.

A nuinber of uniformed eee
as two SWAT teams were dispa
the area where McGuire reported
ping off the gunman.

Through the night police searched

Then, about 7:30 a.m. Decembe =
the search came to a successful and #
violent end.

Officers found Bishop sleeping u™**
travel trailer that was parked in
between Birch and Arizona Streets®™
sleepy little community of Boulder
The community is a quiet, i*
oriented place. There are no ca
within its boundaries .

It was ironic that Bishop shoo ™
found in Boulder City. He was a
but he surrendered peacefully whe®
ficers ordered him out from
trailer. ;

Bishop was charged with the ©
propriate counts of robbery, kidnape™
auto theft and attempted murder.

But on New Year’s Eve one
attempted murder counts was UP!
murder. David Ballard, the ma
brought his sweetheart to Las Vegas i
marriage that would launch a long
happy union, died at a local
Death was attributed to the bullet Bt
had pumped into his back. :

Deputy District Attorneys Mel Bi
mon and Steve Gregory of the
prosecutor's major violators unit *"

put on the case. Their task was S829

Get a conviction of guilty of murde®
first degree and then convince B®
during the penalty phase of the ™*

gome up with a punishment of death in
the gas chamber.

Bishop made the first part of the
prosecutors’ task quite simple, indeed.

He pleaded guilty to all the charges that
were filed against him, including the
charge of first degree murder. .

Now there would be no jury to hear a
penalty phase because of the guilty plea.
lnstead, a three-judge panel would hear it
and make the final decision on Bishop's
fate.

Under provisions of Nevada’s capital
marder statute, the three-judge panel
would be comprised of one local district
jedge and two from outside the iurisdic--
tion.

The judges selected for the February
0 penalty hearing were Paul Goldman of
Las Vegas, Merlin Hoyt of Ely, and .
William Foreman of Reno.

The three heard a day of testimony as
ilarmon and Gregory paraded the vic-
ts of the 36-hour Bishop crime spree to -
the witness stand. They called the cashier
and the change girl from the E] Morocco.
They called Thompson. They called-the
victims of the kidnappings.

They were careful not to call Katherine
fallard, who inside of one hour had
become a Wife only to be destined to bea
widow, ’

They talked of it, but both agreed the
woman should be spared the nightmare

_ of having to relive the shooting for the

three-judge panel. “We've got more than
eough without bothering her,” said Har-
son as he prepared the case with
Gregory. The other prosecutor nodded in
sient agreement.

Bishop, who fired his public defender

yers, represented himself at the penal-
ty hearing. He called no witnesses of his
®*n and was sparing iti his cross-
*xamination of the state’s witnesses. Most
never cross-examined at all.

Harmon made an articulate closing
“gument to the panel, asking that it make
this the final chapter of Bishop's career as
4% outlaw.

Bishop, though not specifically asking

his life be spared and that he be
alowed to live out his days simply locked
*way in the Nevada State Prison, told the
eh society had made him what he

“A poor man never has a chance,” he
aid disgustedly:
judges deliberated overnight and
thanded down the death penalty.
Bishop, who pleaded guilty because he
ot want to tie the case up in appeals
‘ourts for years, indicated he would not
Baht the death penalty, either.
hen the punishment was announced,
shop held a press conference. He told
"porters he has no death wish and does

: sige Want to die in the state’s gas chamber.

t's just something I have to accept,”
told reporters as he sat in the jury box
® Goldman’s courtroom, his hands cuff-

front of him. The court services of-
%

' /
ficer who had brought him to the court-
room from the Clark County Jail, which
is on the third floor of the courthouse,
watched impassively as Bishop fielded
the questions.

Did Bishop have any remorse over kill-
ing the bridegroom?

“I'm not weeping and moaning over it,”
he said. “I’m sorry it had to happen, but
he (Ballard) shouldn’t have gotten in-
volved. That should have been a police
matter.”

The final question put to Bishop was
whether he thought the death penalty was
a deterrent to crime.

“Did it stop me?” he replied, a trace of
sarcasm in his voice.

Before he left the courtroom, he stood
and thanked Goldman for the courtesies
the court had extended It was a sincere
~~ you. That was obvious. Even
though Goldman had joined two other
judges in a unanimous vote for the gas
chamber, Bishop was thankful for the
way he had been treated. Goldman,
among other things, had allowed Bishop's
family liberal visiting privileges in the
county jail.

“I know you did what you had to do,”
he told the judge in regard to the death
sentence.

Goldman wasn't the only one to draw

~ thanks from the outlaw.

The officer who had brought him
down for his court appearances was also
thanked.

“IIe told me he appreciated the fact I
treated him like a man and not an
animal,” said the officer. “I was just doing
my job. If they (prisoners) don’t give me
any trouble, then I don’t give them any
trouble. He’s a, good prisoner, that’s all.”

“He may be a good prisoner,” said
Gregory bitterly as he walked from the
courtroom with Harmon. “I wish we
could say the same about him as a human
being.” ;

“I know what you mean, Steve,” said
Harmon. “His criminal days are over,
though. He'll kill no more. He won't ever
terrorize anyone again. Look at it that
way.”

“Yeah, I know,” said Gregory. “It’s just
a shame that a man like that, with his
background and with one parole failure
to his credit, could get a second chance on
parole. If they had kept him locked up in

California, David Ballard would be alive

today and we wouldn't have had to come
into court and seek a death penalty for
this man.”

Harmon nodded and the two walked to
the courthouse elevators for the ride to
their offices on the-seventh floor. |

Epitor’s Note:

The names Casey Cranley, Suzie
Martin, Laura Meglisio, James Sawyer
and Dan McGuire are fictitious and
were used to avoid embarrassment to
the individuals innocently involved in
this case.

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272 Kan.

Supreme Court case of Delaware v. Prouse,
— US. , 99 S.Ct. 1891, 59 L.Ed.2d
660 (1979), is questionable. The State has
waived reliance on Sandy.

The trial court suppression order must be
reversed insofar as it held the stopping of
defendant’s car was unreasonable. We do
not decide whether the subsequent search
of the car was reasonable under Fourth
Amendment standards since our review is
limited to the initial stop. This is consistent
with the trial court order which only
‘reached the issue we decide. Accordingly,

597 PACIFIC REPORTER, 2d SERIES

we remand for further proceedings on de-
fendant’s motion to suppress to determine
the reasonableness of the search of defend-
ant’s car after the stop.

Reversed and remanded.

W
° £ KEY NUMBER SYSTEM
T

BISHOP v. STATE Nev. 273
Cite as 597 P.2d 273

2. Criminal Law ¢641.4(5)

Where defendant knowingly and volun-
tarily waives his right to counsel, his refusal
to present defense does not negate his pro
per election. U.S.C.A.Const. Amend. 6.

Jesse Walter BISHOP, Appellant,

v.
The STATE of Nevada, Respondent.

No. 10701.
Supreme Court of Nevada.

July 2, 1979.

Defendant pled guilty to charge of
first-degree murder brought against him in
connection with shooting during robbery of
casino cashier. The Eighth Judicial District
Court, Clark County, William N. Forman,
Paul S. Goldman, Merlyn H. Hoyt, JJ., en-
tered death sentence, and defendant appeal-
ed. The Supreme Court, Batjer, J., held
that: (1) where defendant had ample oppor-
tunity in sentencing proceedings to present
evidence of mitigating circumstances but
defendant made it clear he did not want to
present such evidence. or have standby
counsels present such evidence, it was not
error for the sentencing tribunal not to
delve into mitigating evidence alluded to by
standby counsels before imposing sentence,
and (2) record indicated that death sentence
was not imposed under influence of passion,
prejudice or any arbitrary factor, that evi-
dence was sufficient to support finding by
sentencing court of five aggravating cir-
cumstances, and that death penalty was not
excessive or disproportionate to penalty im-
posed in similar cases, upon consideration
both of crime and defendant.

Affirmed.

Gunderson, J., specially concurred and
filed opinion.

Manoukian, J., dissented in part and
filed opinion.

1. Criminal Law ¢641.4(1)

Even though offense for which defend-
ant is being tried may carry penalty of
death, defendant must be allowed pro per
representation if he so elects.

3. Criminal Law 986

Where defendant had ample opportuni-
ty in sentencing proceedings to present evi-
dence of mitigating circumstances but de-
fendant made it clear he did not want to
present such evidence or have standby
counsels present such evidence, it was not
error for the sentencing tribunal not to
delve into mitigating evidence alluded to by
standby counsels before imposing death
sentence. N.R.S. 175.558, 200.033.

4. Criminal Law = 1036.1(4)

Where defendant failed to object or
otherwise protest presentation of certain
evidence, and on its face it was not clear
that such. evidence’ was unconstitutionally
obtained, Supreme Court did not need to
consider its admissibility on appeal from
death sentence. N.R.S. 175.552.

5. Homicide $354

Imposition of death penalty, in prosecu-
tion in which defendant pled guilty to
charge of first-degree murder brought in
connection with shooting during attempted
casino robbery, offended neither United
States Constitution nor Nevada Constitu-
tion. U.S.C.A.Const. Amend. 8; Const. art.
1, § 6.

6. Homicide #354

In prosecution in which defendant pled
guilty to charge of first-degree murder
brought in connection with shooting during
attempted casino robbery, record indicated
that death sentence was not imposed under
influence of passion, prejudice or any arbi-
trary factor, that evidence was sufficient to
support finding by sentencing court of five
aggravating circumstances, and that death
penalty was not excessive or disproportion-
ate to penalty imposed in similar cases,
upon consideration both of crime and de-
fendant.

.

AGA oS oe ee =e Pe Me Ms Patt

a

im,

*6L6T-LE~OT (ATBTO) dS °AON *xAydse SogTyM ‘aeqTeM esser “qOHSTE


274 Nev. 597 PACIFIC REPORTER, 2d SERIES

Morgan D. Harris, Clark County Public
Defender, George E. Franzen, Kirk B. Len-
hard, Deputy Public Defenders, Las Vegas,
for appellant.

Richard Bryan, Atty. Gen., Carson City,
Robert J. Miller, Dist. Atty., Howard Doug-
las Clark, Deputy Dist. Atty., Las Vegas,
for respondent.

OPINION

BATJER, Justice:

On the night of December 20, 1977, appel-
lant robbed a cashier at a Las Vegas casino.
During the commission of the crime, David
Ballard, a patron of the casino, and Larry
Thompson, an employee of the casino, were
shot by the appellant when they attempted
to prevent the robbery. Ballard died as a
result. of the wound. The shooting was
witnessed by several persons who identified
appellant as the perpetrator.

Bishop was charged with nine felony
counts, including the first degree murder of
David Ballard. NRS 200.030(1)(b).! At an
early stage in the proceedings Bishop made
it known that he wanted to represent him-
self and plead guilty to all charges. The
public defenders assigned to the appellant
questioned his competency to make such a
decision. Before the district court would
accept a plea or rule on appellant’s request
for pro per representation, the court or-
dered a psychiatric evaluation. The three

1. NRS 200.030(1)(b) provides in pertinent part:
“J. Murder of the first degree is murder
which is:

(b) Committed in the perpetration or at-
tempted perpetration of . . . robbery

2. Appellant told the court that he did not want
to contest the charge because his experience
gained from past encounters with the criminal
law told him that he had no chance to “beat”
the charge and, furthermore, he did not want to
drag his family through a lengthy and frivolous
trial.

3. NRS 200.033 provides:
“The only circumstances by which murder of
the first degree may be aggravated are:
“1. The murder was committed by a person
under sentence of imprisonment.

psychiatrists who examined Bishop conclud-
ed that he was competent to enter the plea
and possessed the ability to knowingly and
intelligently waive the right to counsel.

After hearing the psychiatrists’ testimo-
ny, the court entered into a lengthy discus-
sion with the appellant. Appellant was ap-
prised that the maximum sentence for con-
viction of first degree murder was death;
the court explained the various pitfalls and
disadvantages of self-representation; and
the district court judge expressed his per-
sonal opinion against pro per representa-
tion. . Nevertheless, appellant insisted on
dismissing the court-appointed public de-
fenders? On the basis of Faretta v. Cali-
fornia, 422 U.S. 806, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975), the court granted appel-
lant’s motion for self-representation. How-
ever, the court ordered the public defenders
to remain in the court as “standby counsel”
in the event the appellant desired their
advice or assistance.

Appellant pled guilty to all counts. Pur-
suant to NRS 175.558, a three-judge panel
was appointed by this Court to determine
appellant’s sentence for first degree mur-
der. Prior to the sentencing hearing, the
state notified Bishop that it intended to
seek the death penalty. At the hearing the
state presented evidence tending to estab-
lish the presence of five aggravating cir-
cumstances. NRS 200.033.3 At the stage

“2. The murder was committed by a person
who was previously convicted of another mur-
der or of a felony involving the use or threat of
violence to the person of another.

“3. The murder was committed by a person
who knowingly created a great risk of death to
more than one person by means of a weapon,
device or course of action which would normal-
ly be hazardous to the lives of more than one
person.

“4, The murder was committed while the
person was engaged, or was an accomplice, in
the commission of or an attempt to commit or
flight after committing or attempting to com-
mit, any robbery, forcible rape, arson in the
first degree, burglary or kidnaping in the first
degree.

“5, The murder was committed for the pur-
pose of avoiding or preventing a lawful arrest
or effecting an escape from custody.

BISHOP v. STATE Nev. 275
Cite as 597 P.2d 273

in the proceedings when it became appel-
lant’s opportunity to present witnesses re-
garding mitigating circumstances, NRS
200.035,4 appellant replied that he had no
witnesses to present. At that time the pan-
el called for a brief recess and advised
Bishop to confer with the “standby coun-
sels” during the break. When the hearing
was reconvened the “standby counsels” in-
formed the panel that they believed there
were certain mitigating circumstances
present, but, because Bishop adamantly re-
fused to allow the presentation of such evi-
dence, the public defenders did not elabo-
rate on that evidence. When questioned by
the panel appellant admitted the truthful-
ness of the standby counsels’ remarks, but
adhered to his position not to present any
evidence. The panel then proceeded to hear
closing arguments by the state.

The panel unanimously concluded that
appellant’s crime was aggravated by five
circumstances: (1) he was under a sentence
of imprisonment in California (at the time
of the murder appellant was on parole from

“6. The murder was committed by a person,
for himself or another, for the purpose of re-
ceiving money or any other thing of monetary
value.

“7, The murder was committed upon a
peace officer or fireman who was killed while
engaged in the performance of his official duty
or because of an act performed in his official
capacity, and the defendant knew or reason-
ably should have known that the victim was a
peace officer or fireman. For purposes of this
subsection ‘“‘peace officer’ means sheriffs of
counties and their deputies, marshals and po-
licemen of cities and towns, the chief and
agents of the investigation’ and narcotics divi-
sion of the department of law enforcement as-
sistance, personnel of the Nevada highway pa-
trol, and the director, deputy director, correc-
tional officers and other employees of the de-
partment of prisons when carrying out the
duties prescribed by the director of the depart-
ment.

“8. The murder involved torture, depravity
of mind or the mutilation of the victim.

“9. The murder was committed upon one or
more persons at random and without apparent
motive.”

The state argued that the first five subsec-
tions all apply to the appellant.

4. NRS 200.035 provides:
“Murder of the first degree may be mitigated

by any of the following circumstances, even
though the mitigating circumstance is not suffi-

an armed robbery conviction); (2) he had
previously been convicted of a felony in-
volving the use or threat of violence to the
person of another; (3) he knowingly created
a great risk of death to more than one
person by means of a weapon; (4) he com-
mitted the murder while engaged in the
commission of a robbery; and (5) the mur-
der was committed for the purpose of
avoiding or preventing a lawful arrest or
effecting an escape from custody. Further-
more, the panel concluded that there were
no mitigating circumstances because (1) the
state had proven the non-existence of sever-
al of the circumstances, and (2) appellant
had failed to present evidence establishing
the existence of the remaining factors. Ac-
cordingly, he was sentenced to die by the
administration of lethal gas.5 NRS 175.-
554(2).§

During oral argument before this Court,
appellant, who was represented by his
“standby counsels”, abandoned his claim
concerning the legality of the guilty plea,
and challenged only the legality of the sen-

cient to constitute a defense or reduce the de-
gree of the crime:

“1. The defendant has no significant history
of prior criminal activity.

“2. The murder was committed while the
defendant was under the influence of extreme
mental or emotional disturbance.

“3. The victim was a participant in the de-
fendant's criminal conduct or consented to the
act.

“4, The defendarit was an accomplice in a
murder committed by another person and his
participation in the murder was. relatively mi-
nor.

“5. The defendant! acted under duress or
under the domination of another person.

“6. The youth of the defendant at the time
of the crime.

“7, Any other mitigating circumstance.”

5. Subsequently, appellant was also sentenced
to a total of 195 years in the Nevada State
Prison on the remaining eight felony counts.

6. NRS 175.554(2) provides in pertinent part:

“The jury or the panel of judges may impose

a sentence of death only if it finds at least one

aggravating circumstance and further finds

that there are no mitigating circumstances suf-

ficient to outweigh the aggravating circum-
stance or circumstances found,”

St WA BUR ew By

i eT Ss Fi MoM

Geach of the Reno police de- | for the first time yesterday by Chiei Cigy
ton Noveraber 8, =. =. __——s|_ ton. Phillips on the witness stand in di
; nounced by Judge Mer-'| trict court. © i a
wn of Winnemucea, as the.youthful | - He was giving part of the testimony’

throughout hig pumereus
Time of: execution was fixed by
the judge as the week of March
Mito Me

In his final statement, after the
attorneya in the case had closed
their arguments, Judge Brown
said teatimony presented during
the two-day hearing showed the
killing of Capt. Geach was delib-
erate, wilful and cold-blooded.
The judge said that Blackwell, in
his actions on the night of Novem-.

ber 8 and previousiy, had shown a

“ruthless for life” 2 4
ec tated’ ss.
In his. decision,

. Judge Brown sald he found the}. §

defendant guilty of murder in the

firat degree, and that the act had

been “wilful and premeditated.”
-  Exnest Brown, attornés for the
~~ jeotion to practically all of yester-
day's testimony, said afterward.
that his assignment 9s a court ap-
pointed attorney was completed,
and that he contemplates no ap
peal uniess he is: retained by
_ Blackwell's family for that pur-
| During his final statement Judge
d the defending
attorney for the earnest and effi-

“J da not know how the defend-
ant could have been represented
more. efficiently,” he. said in clos-

End of the heering came unex-
pectedly after Attorney Brown
the whole courtroom by

ow’.

2

1

Hi

8, when they

rf
&
3

;

i

defense, who offered strenuous ob- |.

aq, Reno
‘ee Carton neek She was treated

373 3

BROS See
| BLACKWELL

SO

‘DA

’

Chicken House .
ar Wedekind

“Howling ,
region early yester-

| ENJUBED IN FALL

) yesterday and injuged her
at Washoe

“ay

down

General hospital.

wher he was czptured in Reno, was deecrily

resulted a short time later in the pron

pea :
: Death Sentence :

appear. | “The story, Chief Phillips

-was as follows; '

4 |ing been sent there after

| days at the YMCA.
da bus to Tacoma

Wanda Ash, of Herling, fell|

| peformatory wal

ing of the death penalty
18-year-old defendant,

was given him by Blackwell
ing an interview at the

jail, and he added that no.
pulsion nor were @
elicit the information, His

‘During last October
was a trusty at the Was
state reformatory in Monrog,

ting several robberies in
during one of which hed

from it took an automa
He then went to Seattle,
gun, and travelled to:S
Spokane he robbed
obtained $150. ‘o

Lake City he went tof
held up another Safeway
‘then to Greeley, ‘Cols,
held up another Safeway #1
From Greeley he went?
Mont., where he purené
more guns. Along tht ®
stolen two cars in whidt
from place to place,’
one of these t@.g0 from.
to Seattle. =. eB
At: Seattle’ he lived

outside a church far
ance of David Wall.
“patted” on him aftéf:
the grocery proprititt;
Shoots

When Wall ,
shot him four tis.
and made his get-a¥8y
down an alley. |

eee

i

ed here, and the way to stand be-

Aer eee re

by use of the

Cee, FOND


ee ee ee ae ae ar ee ‘A ~JTE

44 Backwol, ia, eel-conliljed slayer of | tna Beha aterm

« J. L. Geach and Sgt. Alen Giges of Reno | yesterday laid the grour ee

ace department, yesterday sat in Court | to the gs re
afternoon and listened to the opening-of the | hearing in

points at which the young) In ‘Building |
endant showed any interest inf an Building |

was ted as evi- kn apher it was because hay he foun
nce, and when the superin & DeMy-ache or a prejudice, ett by hunt
ent of the Washington State re 1] The, det Pee attorney went «i automat:
formatory: wag |. t forward, | man identified as Howard B. Has-|to say ; ti i¢ Judge Merwyr?? —
~ age he nt, Ray Ryan, of font are being held by police | Brown pe nits . nt heoruied to-Spok
onroe, Was » had come to | last night on suspicious of burg- _Pilibeed, aie nace Lat
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tained. a. . | threw “athe and : dismiss @ flied Where he o
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yesterday's g Mr. Ry :
intimated he is going
roe and will not
$s : < AG : :
Blackwell is reported to have|in the buildin
escaped from the titu- | police by Fred Bartle

through all the other court ses-| dro
sions, sat up in surprise and ap-

‘nd excused. In jaddition to Mr.

‘yan’s, the testimony of Walter a

‘onciano, bartender at ta bint &
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0 Tavern was decléred to

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- .Motpreycle policemen in drees
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sions to the cemetery. |.

Honorary pallbearers for the
services were Chief of Police Clay-
ton Phillips, Captains Joe Kirkley,

Wie


~

z —— PL SESE ENTE peta,

The frenzied gunman, his eyes wild, his, face
gleaming with sweat, stood panting over his
victim. He cursed and kicked the fallen man.
Then he crouched, placed the gun to Budzien’s
head, and fired.

“Out of the car, you !” he yelled at the
boys who had sat stunned and silent. “Start:
diggin’ this guy a grave.”

The boys scrambled out of the car. They
stood a minute, dry mouthed and wide-eyed
with fright. _ -

-“Get going!” the gunman yelled.

Juszczak and Melski fell to their knees and
began pawing at the loose soil with their
hands. Others grabbed branches and sharp

stones and dug too. The boy with the fuzzy
mustache stood*to one side watching, saying
nothing.

“All right, that’s deep enough,” said Bourd-
lais. “Toss him in.”

Joe Juszczak muttered something in protest.

“Dump him in!” the gunman yelled, brand-
ishing his weapon. Melski and Juszcezak
grabbed the body by the arms and legs, trying
not to look at the battered, bloody face. They
lowered it into the hole.

“Now cover him up.” As the boys knelt to
obey the gunman said, “Wait a minute.” He
bent over and quickly searched through the
dead man’s pockets. He straightened up hold-

@ IT WAS A BLISTERING August afternoon
and the teller at the Farmers’ Bank in Pitts-
burgh, Pa., was feeling every ugly, humid
moment of it. Tiny beads of perspiration
stood out on his forehead, gathered into’
drops and rolled down his nose. In ten min-
utes, he could close the bars of his cage
and remove the clerk’s jacket that clung
like skin to his.back. i

But tensminutes was enough time for
another depositor to appear; a ‘scrawny
stick of a man with long, narrow ears. He
was carrying a small black bag and the
teller sensed he had business that would
carry beyond the 3 o’clock closing hour. He
hoped the man would take his long ears and
his little bag to another window.

“Yes?” he said irritably as the customer
stopped before his cage. ‘

The man said nothing, but his right hand
moved slowly up to the level of the counter
and his fingers thrust a note into the cage.
“Give me $2000 and don’t make any
nuisance,” the teller read. “If you set off the
alarm or try to have me arrested, I’ll blow
up the bank.”

The teller was in no mood for jokes,
practical or impractical. He turned away
from the window and summoned two spe-
cial officers. They bore down like two angry
bulls, but their skinny quarry was too fast
for them. He raised the black bag high in
the air and flung it to the floor.

There was a tremendous explosion and a
great balloon of heavy, acrid smoke. When

the air had cleared, the teller and both:
officers lay dead. Twenty-two others were -
injured. And the little man with the big.
cars, who had borne the brunt of the ex-

ee

. trained in the detection of criminals by

Or issiiriiiliil

plosion, was scattered all over the floor.
“We'll never find out who he was,” one
of the beat men said. But he hadn’t counted
on the skill and determination of a Police
photographer who, working with the
mangled right hand and one of the ears of
the killer that had been recovered, pieced ©
together one of the strangest mug shots
ever released to police departments.
Within days, police chiefs all over the
country were amazed to find in the morn-
ing mail a photograph of some scalp shreds,
a mass of grayish black hair, a set of fin-
gerprints for the right hand, a long, narrow
ear, and the cryptic message: Identification
wanted. Z
After weeks of waiting, the impossible
happened. A police sergeant in Milwaukee,

small, physical peculiarities—a method de-
veloped -by the greatest of all’ French
detectives, Alphonse Bertillon—saw the
photo of the car. He had seen it once
before, back in 1915, but that time it was
functioning properly on the head of its
owner. To a man trained in Bertillon tech-
nique the fantastic mug shot was as valu-
able as a full length photograph.

“Your man is William Chowick,” the
sergeant wrote Pittsburgh. “His fingerprint
classification, as we took it in November 26,

laA
1915, is -
1laA

The man with the little black bag had
been identified. But net even a Bertillon
expert could explain what his murder-
suicide holdup proved—except that ears
can talk. —FRED B. BARTON

4. A copy is enclosed.”

_ windows when the phone rang back at police

arraigned in Las Vegas before Justice of the %

fending him will enter a plea of insanity.

ing a wallet. In the glare of the car’s lights”
he counted the money. Thirty-eight dollars.
“Cover him up now,” he told- them. The 3
boys hurriedly pushed dirt over the body.
“Let’s get going now. You drive.” He mo
tioned the gun at Joe. “Drive us back to that
motel. I’m tired.” . :

x

[ATO the car went the sickened, frightened
-™ boys. Bourdlais got into the back last, hold-
ing his gun ready to fire.. When they pulled /
in at the motel he got out first, and Dyer fol-~
lowed him. Juszczak still sat behind the wheel. 5
This was the chance he needed. The car was 4
in gear. He jammed his foot hard on the 2
accelerator and snapped out the clutch. The E
tires. shrieked and spun and the car leaped :
forward. The gunman yelled and fired after it. >a
Juszezak ducked and didn’t stop tilt he reached
Las Vegas. : ef
In Las Vegas the hitchhikers raced to the -
police station and now, all talking at once, 3
told their story. esi
Police cars sped to the motel. eS  .
_ “Not much chance of finding them hanging
around,” a. police lieutenant said. “We'll have ~
to start beating out through the desert.” ei
Gray morning light was filtering through

headquarters. “We’re bringing them in,” a
squad car man reported. “They were moping
along the highway as if nothing had hap-
pened. We took them back to the place of the
murder and made them dig up the body.” 36
Next day, when the coroner’s jury met at “=
the inquest, the testimony of the hitchhikers
and of Deputy Sheriffs Gary Reese and Lloyd
Bell convinced the jurors in two minutes a
that Ward Budzien died as a result of the —#
beating and the head wound caused by. a3
bullet fired from the 38 Colt revolver. a
Deputy Sheriff Bell testified that when he (=
asked Bourdlais if he had killed the salesman,
Bourdlais had replied, “That's right.” :
The Wisconsin youth, in handcuffs, was =

Peace James H. Down. When Joe Juszczak told é. j
how Bourdlais had threatened them all with .
his -gun, Bourdlais jumped. to. his feet and ==

ay

screamed, “That’s a damned lie!” -

HE sneered when. he heard District Attorney ©
Roger Foley call his crime one of the most

cold blooded crimes in the annals of local
law enforcement. :
Harry Dyer did not appear at the pre-
liminary hearings. On Wednesday, May 28, he =
attended a formal hearing in district court, 4

pee e

“—e |

at |

Judge A. S. Henderson presiding: ae |
A study of Bourdlais’. record showed that a }
he had once been confined to a mental insti- © |
tution. It is expected that the attorney de- ©

-

Harry Dyer was being held as a witness. Rene
He admitted to a newspaperman that the. = |
whole thing was a mystery to him. He said =). |
he had met Bourdlais on a Los Angeles street’ |
corner two days before the killing. He didn’t -
know Bourdlais had a gun, he insisted. They
had decided to drift east, having no particular
destination in mind. :

What evil obsession drove a youth to mu
der a man who liked and trusted everyon
may never be known. Psychiatrists may have
theories, but theories can never help friendly
Ward Budzien. And Harry Dyer, who ma
have been a victim of the same terror that =
gripped the other hitchhiker, held captive by
a gun, had no way of accounting for
companion’s act. '


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Five Against Terror
continued from page 35

beginning of a mustache. The other, the one
in the leather jacket, answered. “Las Veet
he said. He didn’t smile.

Budzien felt his palms grow moist as ye car
picked up speed. He sensed an odd tension,
almost as though an evil force, lightly re-
strained, had entered the car with his passen-
gers. Nice day for driving, he commented. His
voice was tight, unnatural. Had they been
waiting long? The pair answered in grunts.

“T’ll have to shake these boys.” The thought
raced through Budzien’s mind. The next town,
the next gas station .. . He felt the queaziness
of fear in his stomach. He was holding his head
rigidly, he knew, and his hands were tight
on the steering wheel. This is ridiculous, he
muttered to himself, trying to shake the feel-
ing of tension. I’m imagining things. These
guys just don’t feel like talking. All ' he’d
got out of the youths was that the one
in the leather jacket was Vernon. Bourd-

lais and he was from Marinette, Wis. The
other youth was Harry Dyer, of Los
Angeles.

He stopped for gas a few miles alibad on.
the road. Budzien entered the station’ when
the attendant made change, but his passengers
remained in the car. He studied them through
the station window. They. were talking now,
but as he approached the car they lapsed again
into silence:

As ‘they picked up saracdi again on the high-
way Bourdlais began to hum an odd, monot-
onous off-key tune. Budzien glanced in the
rear view mirror.
out the window at the lonely desert landscape,
his face wrinkled up as though he were in
deep thought. The humming stopped abruptly.

“What line of business you in, Mac?” Bourd-
lais was staring eaiagited at the back of
Budzien’s head.

Budzien told him he was a businessman from
L. A. The boy swept a glance around the
car as though appraising its value.

“Like some music?” Budzien asked. He
switched on the car radio. The uneasiness
swept over him and then he began to feel
angry. He felt an urge to jam on the brakes,

haul those two jerks out of the back seat and .

smash a fist into their faces. Was there a
wrench under the front seat? He remembered
the lethal crank handle in the first car he’d
ever owned. The car radio was blaring but
he was only dimly: aware of it.

es rounding a lazy curve.in the high-

way, he saw the figure at the roadside. One?
There were two. Young, fairly big. They
leaned out over ‘the pavement, waving their
thumbs busily.
knew instantly. Four would be company, very
pleasant company. He waited until he was
nearly alongside them, then applied the brakes

. quickly.

The two boys sprinted up to the car, bent
down to grin. at the driver.

“Hi,” one said, panting. “It’s been quite a
wait.” He opened the front door and slid in
beside Budzien. The other boy glanced into

- the back, hesitated, then ducked, and squeezed

in beside the others. He smiled at them quick-
ly, then turned to the driver. -

“Where you heading?” he asked Budzien.
“Las Vegas?” Budzien smiled and nodded
over his shoulder.

Budzien quickly sized up his new passen-

The fellow was squinting:

This was his out, ‘Budzien *

gers. They weren’t westerners, he knew, from

the way they spoke. Possibly middle west or

east. They were from Buffalo it turned out.
They were heading back east. Great country
out here. They hoped to come back and stay.
They gave their names. Joe Juszczak and
Boleslaus Melski.

“How do you like that Boleslaus?” Melski
said, and laughed.

UDZIEN. glanced into the mirror. His
first two passengers were silent. Dyer
was looking straight ahead. Bourdlais seemed
to be sizing up his new companions warily.
His glance was hard, thoughtful. ~ :
. Budzien grinned to himself. If they were
going to make trouble, they wouldn’t now.
They’re outnumbered. He felt his grip easing
on the steering wheel.
“These fellows are hitchhiking, too,” he
said to the boy beside him. “Maybe you
ought to get acquainted.” He grinned into

the mirror above the windshield. Joe and

Boleslaus looked at the other two
with interest.

“Where you from?” Melski asked. Dyer
glanced at his companion.. “L. A.,” he said.
Their eyes were wide, their faces blank.

'“How are the rides?” Juszczak inquired.
“Vou doing all right?” He grinned at the pair.

Bourdlais looked at him and. his eyes nar-
rowed. “We’re doin’ okay,” he said. He didn't
smile.

Jzusezak looked at the two.2>,moment,. his”
eyebrows arched, his mouth. opened in puzzle-
meni, then ‘ie shrugged | faintly” ‘and turned
to Budzier:.

The boys from Buffalo liked to talk and the
driver seemed willing to listen. Time would
go faster. They were nearly halfway to Las
Vegas. Budzien chatted along with them, told
them about his work, whom he was visiting,
discussed with them the merits of his own
car and those of the cars that passed occa-
sionally. From time to time he glanced into
the rear view mirror, at his silent passengers.

Then Budzien spotted the two men walk-
ing along the roadside ahead. They were
blond haired, young. They were shuffling along
as if they weren’t in a hurry. One glanced
back: over his shoulder at°the approaching
car, and half-turned, as though he wasn’t
sure he would thumb for a ride. Budzien
stopped the car beside them. He leaned over
and grinned out the window. “Can I take
you down the road?” he asked.

He would really enjoy this. The silent - pair
in back were really outvoted now. The blond

riders

. boys looked at each other,:then grinned back

at Budzien. “Why sure,” one said. Then they
looked into the crowded car and _ hesitated.

“We'll make room,” Budzien said. “These
boys are hitchhiking too. Squeeze over, fel-
lows.” The more the merrier, he said to him-
self.

One blond got into the front. There was a
mumbled profanity from the rear, but the boys
squeezed over’ and the other blond got. into
the back.

“Sort of close quarters in here,’ the blond
in back said apologetically.

“Beats walkin’, though,”
him, commented. —

The new riders were from Missourt, They
had always wanted to see California, and now

_ Melski, beside

they were heading home. Sort of hated to do °

it, too. There weren't any palm trees in
Missouri. They eased into the conversation, not
noticing the silence of Dyer and Bourdlais.

°

Soon the talk was back to automobiles. It was
evening and soon darkness would cloak the
desert.

“That Nash-Healy is one heap I woul

mirid owning,” Melski was saying. “Talk about
smooth ..
glanced quickly into’ the mirror. Then he
jerked his head around to look into the back
seat, and looked quickly back to the road.
’ He .felt as though someone had hit him in
the stomach. Bourdlais was humming tune-
lessly, looking fixedly at a .38 Colt revolver
he was hefting in his right hand. Dyer, beside
him, was staring at it too, his face stiff,
frightened looking. Juszczak in the front seat,
paled as he stared fascinated at the weapon,
then he turned and fixed ats eyes rigidly on
the road ahead.

Bourdlais

“Pes is a handy gadget, too,”
He glanced around at the

was saying.

- other riders. There was a hard grin on his face

and his eyes were contemptuous. “Very handy,”
he repeated. The car was deadly silent then,
except for the drone of the engine as the car
sped on. :

Budzien thought desperately as he tried to
quell his panic. Couldn’t someone grab t’
gun? If it went off, though— He felt the
of his neck tingle. He was sweating now, .
fusely. They.were only about ten miles ti
Las Vegas, approaching the town of Pittman.

Maybe they’d see a police cruiser. He had to

do something, even ram a telephone pole.
Ahead-on the road there was a glare of neon.
Tourists, it read. Motei. Budzien felt a sud-
den, desperate impulse. They had _ nearly
reached the place when he turned to the others
in the car.

“Let’s pull in here,” he said. “We can stop
off for the night.” He swerved the car into
the parking area in front of the motel and
stopped.

“Get going,” snarled a brittle voice from the
rear seat. “Get going,” it repeated. “And don’t
stop till I say so!”

Budzien put the car into gear and they
moved out onto the highway. His. other riders
sat frozen in their seats. Their white faces
were immobile.

“Look, fella—” a high-pitched voice began
to say.

“Shut up!” Bourdlais snapped. “Shut up or

Tl let you have it! I’d just as soon let alt of
you have it!”

“Turn in here,” he rasped again suddenly.

A dirt road led off to the right. “Keep going
down this road.”
' A moon was shining dimly, and Budzien
could see a dry cactus that stood like a ghost
beside the road. They had driven nearly 100
yards off the Vegas Wash Highway,

“Stop here!” Bourdlais ordered. “You get
out.” He nudged Budzien with the revolver.

Budzien sat motionless for a moment. “Oh,
God,” his mind was saying numbly. “Get me
out of this. Get me out of this.” .

“Get out!” The. voice was nearly a shriek.

Budzien opened the car door and stepped
slowly out. “Now look—” he began.

“Shut up!” the voice shrieked. The gunman
slammed the back door open and leaped out
of the car. With the butt of the gun he slashed
at Budzien’s head. The boys in the car heard
the sickening thud of the flailing weapon.
Again and again the gunman swung the gun
as Budzien’s legs crumpled, and the arms he
had held up to ward off the blows fell to his
sides. He toppled and lay moaning.

.’ He stopped suddenly. Budzien ~

41

hen. ..2ap

ip x “Sia SAE INIG5
y | : Y ‘

By Jose Calido

Special Investigator for
OFFICIAL DETECTIVE STORIES

OFFLCLAL DETACTIVE

coffee and ke
their radio.

Two teen
down the str

PLUMLILO,

HE trouble is
what’s going t

T

complaint abo

down a squad car

ve imaginations. Or
to sound tough, with n
ever backing it up.

Or it mi
serious.

A police
drive-in ne

september,

Ward Budzien, who said,

“I've done some hitch-hiking, too," is
uncovered by Bourdlais,

left, and Dyer, who'd acted under duress

& cop never knows
oO happen next,
That radio call might be just a
ut a neighbor’s dog bark-
ing all night. The fellow who flags
could be asking for
directions. Even the person who
screams out in agony,
Quick! Help!” half th
more
nightmare.

But a cop can
may be at staki
never knows,

Such as th

“Call the police!
e time has nothing
than an indigestion-inspired

’t take a chance. ‘A life
€, or a dozen lives. He

le case of the seven hitch-
hikers in Las Vegas, Nevada, on the
night of May 20, 1952.

It might have bee
joke. Or a cou
acti

nm only a practical
ple of kids with over-
& youth trying
oO intention of

ght have been something

Prowler car was parked at a
ar midnight that night while
the officers in it gulped at some hot
pt their ears pitched to

“aged boys came loping
eet, breathless and excited.
They spotted the Prowler car and

swerved into the drive-in, right up to
it.

1952

Herdinand, white, asphyx., Nev. SP (Clark Co.) on 4/23/1954, |

Gasping and panting for breath, one
of them said, “Hey, officer! Quick!”

“What's the matter, Bud?” asked the
man at-the wheel, °

“‘Somebody’s going to get killed!”

With his right hand the driver flicked
on the ignition; his left darted for the
starter button. “Where?”

“I don't know, but—”

“Well, who’s going ‘to get killed?”

The kid said, “I don’t know.”

Patiently, the officer Switched off the
ignition again, “Okay, boy,” he said.
“Get your wind back and tell us what
it’s all about.”

The boy breathed deeply four or five
times. Then, after licking his lips, he
told the story:

“Me and my pal here were hitch-hik-
ing out of Los Angeles, see, and in San
Bernardino this man came along in a
Buick and gave us a lift. He had three
other guys in the car, all of them hitch-
hikers like us, and in Victorville he
stopped and picked up two more. Well,
it was one of them—”

He had to stop for breath again and
his companion took up the tale.

“He had a gun, one of them we picked
up in Victorville. He showed it to us
when the driver wasn’t lookin’, and he
told us he was goin’ to hold the fellow
up. Then he said he was goin’ to kill
him!”

|


2

Eight Persons Were in That Car S
Nevada. One Was Going Visiting,
The Gun, Was Planning to Kill, Ag

“Maybe he was just handing you a
line,” the officer on the right suggested.

“Oh, no! No, Sir! He meant it, he
did! If you’d ’a seen his eyes you could
tell! We got out, me and my pal here,
soon as we could; we don’t want to get
mixed up in no deal like that! We been
lookin’ for a cop or a telephone for the
last ten minutes. That fellow’s goin’ to
be killed all right, unless you can find
him quick!”

ELL, that was their story. And what
kind of a story was it?

Had these two boys dreamed up the
whole thing? Had they built it from a
whispered boast and a suspicious bulge
in some other youth’s pocket?

Or was a man’s life really in danger?

And if it were—what could the police
do? How find that Buick? What model
of a car was it, what year, what color?
Where was it going? Who was the
driver?

Switching on the two-way radio, the
patrolman reported to Headquarters,
“What about it?” he asked.

After a pause, the Headquarters
operator told him: “Bring those two
kids in. We'll notify the sheriff and
the Highway Patrol and see if we can
spot that Buick.”

Detectives Hiram Powell and Bill
Hanlon were waiting when the youths
arrived at Headquarters and Deputy
Lloyd Bell of the sheriff’s office came
in a few seconds later, They questioned
the youths.

The boys gave their names as Daryl
Andrews and James Cockrell and said
they were from Sarcoxie, Missouri.
They had been in Los Angeles and,
unable to find: work there, were hitch-
hiking home.

“This man who picked us UP was real
nice,” Andrews said. “When we got to:

Barstow he bought us hamburgers and
coffee and gave each of us a pack of
cigarets.”’

“Do you know his name?” Powell
asked.

They didn’t.

“What did he look like?”

“He was kind of old.”

“How old?”

“Gee, I don’t know exactly. Maybe
forty, I guess. He had dark hair but
some gray in it. There wasn’t anything
special about him; he was just kind
of medium tall and medium heavy.”

“Did you notice the license number
of the car?”

“No. It was a new black Buick. He
told us he lived in Los Angeles and he
said he had two sons, One of them is

Cockrell couldn’t recall the name
of the camp either, although he thought
it was somewhere in California. “This
fellow said his son was about as old as

“How old are you?”

“I’m _ seventeen; so is Daryl. But I
guess his kid must be older or he
wouldn’t be in the Army. Maybe he’s
nineteen or twenty.”

“Did he say where he was going?”

“Yeah. Right here, to Las Vegas. He
was going to visit a relative. I think

The last hitch-hiker, hatless,
at right with officer. Below,
the first five. In back row,
Malski and Juszezak. Seated,
Cole, Cockrell and Andrews.

. . “

he said it was his brother-in-law.”
“What’s the brother-in-law’s name?”
Bell asked.
Both youths shook their heads.
“How long ago did you Bet out of
the car?”
“A half-hour maybe. We ran up the
street until we saw those cops sitting
in their car.”

THE boys were sincere enough and
obviously telling the truth. But
what could the police do?

“We put an alert out,” Hanlon said.
“All the highways are being watched.
Maybe somebody will spot the Buick
with them in it.”

Bell said: “It will be tough locating
the car without a license number. How

“They were all young, around twenty,
except the fellow with the gun,” An-
drews replied. “He was older. Maybe
he was about thirty. He was real
tough.”

Cockrell added: “He was wearing
a leather jacket and khaki pants; he
didn’t have any hat and his hair was
dark and kind of long, like it needed
cutting. He talked real tough and his

peeding Through the Night Toward Las Vegas,
Six Were Heading Home, and the Other, With
ain and Again. Could He Be Stopped in Time?

eyes—” The youth shivered. “You
could tell just by his eyes that he was
tough enough to kill anybody.”

The additional information was put
out over the radio. Then a silence fell
over the room. The detectives realized
if the story they had heard from the
youths was true, then someplace out
in the dark night a man was being
slain. Or maybe the man already had
been killed, and the killer was fleeing.

How stop him?

“We have to find out who the man
is sO we can get the license number of
his car,” Bell decided. “Look, you boys,
tell us your story over again. Don’t
leave out anything.”

ANDREW acted as spokesman, with
Cockrell filling in details he missed.
They said they had been on the out-

skirts of San Bernardino when the car.

stopped for them,

“Three fellows were in the. back seat,
so Jim and I got in the front with the
driver, We talked to him and found
out the driver had picked up the other
three just a little while before. They
were all from Buffalo, New York, and
they’d been out to Los Angeles, too, and
were going home.”

“Did you hear any names?” Powell
asked.

Cockrell said: “One of them was

Joe and another they called ‘Bolly,’ or.

a

Ex
Rea
ae
‘7
a4
4

Ty
8 ‘

does seem to me it was a red license with
white numbers.” ,

Wilson asked him about the make of~
the car. Howard had said he thought it
was a Chevrolet or Oldsmobile. The
victim in San Francisco was certain the
car he’d seen was a Ford.

“at the time I didn’t pay much atten-

tion,” Howard said, “because I didn’t ;

know anything was wrong. ‘If that
other fellow had been robbed, he’d be
noticing it more than I did. He could
be right that it was a Ford, if it was the
same car and fellow who went off with
Larry.”

Wilson sent a message to the Utah
state police, asking their help.

Before long a telephone call came
from Deputy Kenneth Hammond- of
Davis County, Utah.

“We had a gas-station stick-up a

couple of days ago in the town of-Clear- —

field,” Hammond reported. “A baby-
faced kid took the operator of a small
station for a hundred and seventy-five
bucks. This kid was wearing a jacket
with a dragon embroidered on the back
and was packing a twenty-five auto-
matic. We showed the attendant some
pictures, and he picked out the guy.”

Excitedly Wilson asked:

“Do you have him in custody?”

“Not yet. But I filed a charge against
him two days ago. We don’t know where
he is right now. His parents live in
Roy—that’s just a little ways out of
Ogden.” f

Hammond said the youth was 20-
year-old Thayne Archibald, who had a
police record dating back to his early
teens. He served a four-year term at
the Utah Reformatory and shortly after
his release was picked up for auto theft
in Oregon and served a three-year sen-
tence in the state penitentiary there.

Deputy Bert Cook of Weber County
had talked with the boy’s parents. They
told him that Thayne had been away
for several weeks. He had come home
the day after the reported service-sta-
tion robbery in Clearfield and left again
the following day.

“His folks are good people,” Ham-
mond said, “but he’s been in trouble all
of his life.”

“Send us a mug right away, will
you?”

Patty’s Lost Tattoo
(Continued from page 17)

Keene and Oxnevad left at once for
San Marino, a community east of Pasa-
dena. With the local officers, they paid
a visit to the shoe store. :

The manager found that the shoes
had been sold less than a month before
to a customer who gave his name as
“Nolen.” No first name or address had
been noted on the sales slip.

“That could be a help in digging into
the school records,” Oxnevad said.
“Let’s see what they have on the gradu-
ating class of forty-nine.”

The school yearbook did not have.
anyone by the name of “Nolen,” but it
did list and contain a photograph of a
Richard Lee Nowlen.

“That picture is about ten years old,
but it looks like the guy—don’t you
think so?” Keene asked Oxnevad.

“It sure does.” Oxnevad turned to

- the San Marino officer: “Do you fellows

know him?”

“T'll say we do. He’s a bad egg. We
had him in a dozen times while he was
a kid. And we just got a bulletin about
a month ago that he and two other fel-
lows escaped from Chino.”

The records showed that Nowlen, who
had been sentenced to thé California
Institution for Men at Chino for passing
forged checks, had escaped on August
9. Ronald D. Hurley, another bad-
check artist, and Robert J. Skiba, sen-
tenced for armed robbery, had escaped
with him. Both Skiba and Hurley had
been recaptured after a few days of
freedom. Nowlen was still at large.

“It’s already in the mail.” :

When the ‘police photograph of
Thayne Archibald arrived at the Ala-
meda County sheriff's office, it was
rushed out to George Howard in Liver-

more.
oe looks like the fellow,” Howard
said. aebee

Archibald’s name was added to the:

West Coast alert for Waters’ killer.

At nine o’clock Thursday night, Sep-
tember 11, a young man drove into a
service station in Baker, Oregon. He
brandished a gun and demanded the
money from the operator, Allen Flynn.

Flynn argued with the youth, insist-
ing he had only a few dollars and that
the robbery wouldn’t be worthwhile.
The young man finally jumped into his
car and raced away: empty-handed.

The station operator called Chief. of
Police Fred Still, reporting that the
would-be bandit had been in a car with
Utah license. plates.

“He could be the guy we’ve been get-
ting all those reports on from Califor-
nia,” Still told his men. “Search the
town, and I’ll call the state police in
case he leaves here.”

A few minutes later a telephone call
came in from Mrs. Elizabeth Fredrick,
who also operates a service station. She
reported a young man had just robbed
her of $20 and-driven away in a Ford
sedan with Utah plates. :

As Chief Still relayed the information
to the state police office, a radio report
came in from one of his patrol cars.
“we think we have the fellow spotted.
He’s in another service station.”

Still rushed to the location. The of-
ficers had a youth in custody. He had
given up without a struggle, although
he had a .25 automatic ‘pistol in his

/pocket.

“Who are you, son?” Still asked the
youth when he was brought in.

“T ain’t nobody,” was the surly reply.

Still went to his desk, where he picked
up one-of the sketches he had received
from the Alameda sheriff’s office on the
suspected slayer of Larry Waters.

“You look a lot like this fellow.”

The youth studied the sketch for a
moment. “I should,” he said without
emotion, Still claimed. “That’s me.”

Chief Still called Wilson. He reported

From the police record and the school
files the police investigators pieced to-
gether the background of Nowlen. They
learned that he was the adopted son of
Mr. and Mrs. Eugene Nowlen, a promi-
nent family. Before retiring, Mr. Now-
len had been a well-known. Southern
California architect. He and his wife
now were active in art circles.

Investigation revealed that Mr. and
Mrs. Nowlen were in Europe. A spokes-
man for the family said they had
adopted Richard when he was five years
old. They had given the boy every ad-
vantage, but he had persistently been
in trouble. The family had not seen
or heard from him since he.was dis-
charged from the Navy in 1953.

Comparison of the fingerprints taken
from the desert victim with those on

Nowlen’s record confirmed the identifi-

cation. <

Nowlen never had been married.

Who was the girl?

And why had she and Nowlen been
killed? :

Chino authorities questioned Hurley
and Skiba, who had escaped with Now-
len, as well as other inmates who knew
the slain man. of

“We can’t get a thing out of them,”
the Chino authorities reported back.
“They claim they don’t know a thing.”

“How about the girl?” .

“If they do know who she ‘is, they
won't talk. The way they’ve clammed
up, the killing could be the result of
something that happened here.” ’

Keene and Oxnevad were well aware
of that possibility. ‘ .

“The girl: could have been an inno-
cent victim,” Keene reasoned. “She
might have happened to be with Now-
len when the killer or killers got him.”

“itn OE ea

wei’

that the youth in custody had given
them his name as Thayne Archibald.

“The gun we took away from him is
a twenty-five automatic,” Still said.

“Does he have a jacket with a dragon
embroidered on the back?” Wilson
asked. i

“We searched his car but couldn’t
find one. Do you want to talk to him?”

WHEN Archibald came on the line,
Wilson said, the following conver-
sation took place: ‘Where is the
jacket?”

“TJ left it at home when I went there.”

The jacket was located at the Archi-
bald home.

Washoe County District Attorney
William Raggio and his chief criminal
deputy, Bill Driscoll, made the trip to
Baker to question Archibald and return
him to Reno. y

The investigators claimed they heard
Archibald confess to robbing the service
station and kidnaping Larry Waters.
They quoted him as saying:

“T took the kid along so he couldn’t
holler cop after I left. When we got out
of town, I told him to drive, and I sat in
the back seat with the gun on him. He
didn’t give me no trouble at all. ~
_ “We'stopped at a cafe outside of Reno
for some sandwiches.. I planned on let-
ting the kid out on the desert on my
way back.to Utah. But when we stopped
along the road to eat, he tried to run.

“T shot him. It was tough on him, but
he should have done what I told him.”

As Archibald gave the story to the
investigators in detail, however, several
points did not jibe with the evidence.

Larry Waters’ body had been found
at the edge of the cliff over the river.

_The ejected automatic shell was only

a few feet away. This did not corres-
pond with Archibald’s story that Larry
had tried to run.

Archibald waived extradition and was
returned to Reno by Raggio and Dris-
coll to face a charge of first-degree
murder.

As this was written, Thayne Archi-
bald was being held in the Washoe
County jail pending further action.

The names John Graham, George
Dunn and Albert Gonzales are fictitious.

Oxnevad and Keene turned their at-
tention to the bloodstained letter that
had been found in Nowlen’s pocket.
Chemist Longhetti had been unable to
bring out any more than the salutation
“Dear Patty” and the occasional words
indicating a plea for a reconciliation.

But from samples of the ex-convict’s
handwriting Longhetti was able to es-
tablish that Nowlen had not written
the letter.

The investigators still had no leads
to the identification of the girl, other
than the tattoo. marks on her leg. The
tattoo had faded until it would not re-
spond to any chemical treatment to
bring out the letters more clearly.

A call came in from the officer in
Hawthorne who had investigated the
address found on the slip of paper under
Nowlen’s body and questioned Harry

‘ Chips.

“we've been keeping an eye on Chips
and his wife,” he reported. “I think
they are okay. But he has a man stay-
ing with him by the name of Edwin L.
Hinds. This Hinds has a police record
and is known under the aliases Edward
Day and Richard Cullen. He was pa-
roled in January after doing a three-
year stretch in San Quentin for
burglary.”

“TI think we'll drop over and ask this
Hinds a few questions,” Keene decided.

The investigators were waiting for
Hinds when he arrived at the house in
the early evening.

He claimed he did not know Nowlen
and knew nothing about the slaying
of Nowlen and the girl.

“Why choose me?” Hinds asked.~
“what makes you think I know any-
thing about them?’”

He was told about the address on the

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65


“The doc estimates he was killed
about twenty to twenty-four hours be-
fore the body was found,” Driscoll said.

From the examination at the scene,
the Washoe County investigators be-
lieved the slaying was an ‘execution
type” and that it had taken place on
the ledge above the river.

“The killer forced him to climb up
the cliff, with the idea of shooting him
and then pushing the body over the
edge into the-river,” Cole declared.
“There's no sign of a struggle. I can’t
figure why the killer changed his mind
and left the body there.”

The death weapon was a .25-caliber
automatic. One of the ejected shells
had been found near the body. It was
a small gun, easily concealed.

“Why bring him all the way out here
to kill him?” Wilson asked.

It was a question that would go un-
answered unless they found the killer.

The Washoe County officers took the
Alameda County deputies out to the
scene. A bright moon illuminated the
canyon, showing the river like a silver
ribbon running through the darkness
below. ;

The firm, dry ground along the edge
of the four-lane highway held no tire
marks or footprints. And the only evi-
dence near the body had been the ex-
pended shell. :

“We covered it pretty thoroughly
while it was still light,” Cole said. “Yet
we didn’t find a thing to give any clue
to the killer.”

“He could have thrown the gun into
the river after the killing,”’ Wilson sug-
gested. “If we could locate it, we’d have
a chance of tracing it.”

It was a slim chance, but Cole prom-
ised to have skin divers search the river.

On the way. back to Reno, Wilson rea-
soned, “If the killer filled his car with
gas in Livermore, he probably would be

14

just about out by the time he hit Reno.
We have the sketch of him, a picture of .

Larry and a description of the jacket ..
and the,car. Can you have your.men.:

canvass the service stations?”

“We already thought of that angle,”
Driscoll said. “And we also requested a
canvass by the state police on.the high-
way all the way in to Utah. The sketch
and pictures will help.”

Wilson added, “The killer may have
used the same car he had when he
picked up Larry. He wouldn’t have had
time to drop it and pick up another one
while he was holding the boy as'a hos-
tage. I just hope he hangs onto it for
a while longer. The New Mexico plates
are the best clue we have at the mo-
ment.”

“I can’t understand anyone killing a
youngster like that without a reason,”
Driscoll said. ‘‘Unless he’s nabbed soon, -
there may be other killings.”

Meanwhile, in Livermore, Captains
Mitchell and Madigan were developing
a lead. i

Among the scores of tips that had
come to the sheriff's office following the
publicity on the disappearance of Larry
Waters was a telephone call from a
loan-company official who told of a
youth who had come in to borrow money
to pay his dues in the carpenters’ union.

“I hated to turn him down, but he
didn’t have a steady job,” the caller
said. “He told me he was desperate,
because unless he got the money to pay
his dues, he couldn’t work.” ’ ‘

Application for the loan had been
made the day before Larry had been
abducted. The youth had given his
name_as John Graham and an address
in Ceres in Stanislaus County. The lead
looked good when the investigators dis-
covered that someone named Graham
previously had lived in Livermore and
had attended high school with Larry. .

Mitchell phoned Sergeant James
Brown’ at the Stanislaus County sher-
iff’s office and-requested a report on
Graham. ‘

Later in the evening Brown returned
the call. “We picked up the Graham
kid just as he was leaving his parents’
home.

“He knew Larry Waters, but he in-
sists he doesn’t know anything about
the robbery, kidnaping or killing. How-
ever, he stumbled a couple of times
telling us where he was on Wednesday.
He gave us one alibi, and we poked a
hole in it right away.”

“We'll be up to talk to him.”

5 beepesh ag a lengthy session of ques-
tioning Graham continued to insist
that he had not been in Livermore on
Wednesday. He admitted that he had
been there on Tuesday and had tried to
borrow money. Yet he was-unable to
account for his time from Wednesday
noon on.

The youth's parents were questioned.
They said Graham did not own a jacket
with a dragon crest on it. His old car
had California license plates and: was
not the color, make or year of the auto-
mobile Howard had seen at the service
station.

“Will you submit to a lie-detector
test?” Mitchell asked.

“Sure. I didn’t kill Larry. You've got

.to believe that.”

Graham was taken to Livermore.
In Reno, Doctor Callister completed
the first phase of the post-mortem ex-

amination. He determined that Waters .

had been killed by two shots fired from
the .25-caliber automatic.

And, of extreme importance to the
investigators, ‘he announced that his
examination showed the victim had
eaten a hamburger sandwich within an
hour of his death. ‘

Sergeant Ken Hill had to move
fast to catch up with a dragon

“He also ate potato chips and some
peanuts a little earlier,’ Doctor Callis-
ter added. “I would judge possibly two
or three hours before he died.”

“How close can you estimate the time
of death?” Wilson asked.

Doctor Callister said that more tests
would be required. At this time he could
say only that the youth had been killed
some time between six o’clock and mid-
night on Wednesday.

Larry and his killer must have
stopped somewhere between Livermore
and Reno to pick up the snack of po-
tato chips and peanuts. The hamburger
must have been bought somewhere near
Reno.

U SING copies of the sketch and photo-

graphs of the victim, along with the
description of the dragon jacket and
the car with New Mexico plates, depu-
ties and Reno police canvassed cafes,
service stations, highway lunchrooms
and drive-ins, seeking someone who
might recall seeing the killer and his
victim.

Then a flash came in from: Carson
City, Nevada, that police there had
picked up a youth driving a 1959 Chev-
rolet with New Mexico license plates.
Wilson and Driscoll drove to Carson
City to question him.

The youth said that his name was
George Dunn and that he lived in Santa
Fe and was on his way to San Francisco
to visit relatives when the Carson City
authorities stopped him. He insisted he
had not been in Livermore. A thorough
search of Dunn's car and luggage failed
to uncover a dragon jacket or a pistol.

“I didn’t leave Santa Fe until Thurs-

’ day afternoon,” Dunn claimed. “And I

worked up until Wednesday afternoon.”

A telephone request was made to the
Santa Fe police to investigate Dunn's
alibi.

In Livermore, meanwhile, Graham
voluntarily submitted to a lie-detector
test. The examiner reported the find-
ings were inconclusive.

“All I can say is he isn’t telling the
truth about where he was on Wednes-
day afternoon,” the examiner said.

Graham was placed in a police line-
up, where he was viewed by George
Howard, Larry's employer.

“I don't know,” Howard told the de-
tectives. “I can’t.say he’s the fellow I
saw with Larry. He’s about the same
age and the same height, though.”

Graham continued to insist he had
not abducted or slain Larry Waters.

.An ‘intensive search was started in
both Livermore and Ceres to determine
if Graham ever had owned a dragon-
emblazoned jacket or a gun. And
whether a car with New Mexico plates
could have been available to him.

Skin divers, searching the bottom of
the Truckee River, failed to find a gun
or any other evidence that might be
connected to the crime.

The canvass of cafes, however, paid
off when officers located Miss Betty
Horton, a waitress at the 102 Ranch
Cafe on Highway 40, 20 miles east of
Sparks and only five miles from the
death scene.

She told the ‘detectives that two
youths had entered the cafe at eleven
o’clock Wednesday night and ordered
hamburgers and coffee.

“TI was suspicious of them right away,”
Miss Horton said. ‘““‘They were the only
customers in the place at the time, and
they acted kind of peculiar.”

The waitress said she thought the
pair might be planning to rob her, so
she called the owner, Nick Mansfield.

(Continued on page 64)

Tom Walters

Special Investigator for
OFFICIAL DETECTIVE
STORIES

Larry that if he’ll just let him go, we'll
forget all about this,” Waters said.
“We'll just consider that he went along
voluntarily for a little ride.”

“You can’t make that kind of a prom-
ise,” Gleason warned him. “If this
really is a robbery and a kidnaping, we'll
have to prosecute whoever is respon-
sible.”

“But what does it matter, so long as
Larry isn’t harmed?” Waters protested.

Gleason finally agreed that Waters
could make any statement he chose as
a private citizen so long as the authori-
ties were not quoted. As a result, Wa-
ters made an appeal to the stranger to
release Larry. He also-~revealed that
Larry was his stepson, whom he had
adopted as his own. Larry's real father
had been killed in action during World
War II.

By Friday, with no word from Larry,
the police search was extended to six
neighboring western states. Filling-sta-
tion operators in Nevada, Utah, Wash-
ington, Idaho, Arizona and New Mexico
were alerted by radio broadcasts to be
on the lookout for the blue sedan with
the New Mexico plates.

Meanwhile, the investigators working
in Livermore had been unable to come
up with any lead to the identity of the
youth with whom Larry had left the
station. ’

Larry's parents clung desperately to
the hope that their son was alive and a
kidnap victim. “I warned Larry when
he went to work at the station never to
resist anyone with a gun,” Waters told
the detectives. “That’s probably why
he went along with this person without
trying to warn Mr. Howard. I know

Larry wouldn't give the robber any rea-.

son to shoot him.”

But Wilson and Mitchell were skep-
tical. Wilson reported to Gleason,
“We've made a pretty thorough check
on the kid’s friends. Nobody recognizes
the description of the person he left
the station with.”

“Could it have been somebody just
passing through?” Gleason asked.

“It looks like that. And if so, I’m
inclined to believe the father. This kid
has been kidnaped.”

This was the dragon police chased, a hideous, fire-eating creature that killed with bullets

“What is left that we haven't done?”
Gleason asked.

“Not a thing. Until we get some kind
of a break, we’re stymied.”

They got it—very soon.

At six o’clock Friday night Guy Gray
of Barnsdall, Oklahoma, and his ten-
year-old son were traveling east on
Highway 40 on'their way home from a
vacation trip. They had passed Reno,
Nevada, about 30 miles back and were
driving along the picturesque painted-
rock canyon above the Truckee River.
A slanting sun brought out the vivid
yellow, red and golden hues of the boul-
ders where the river slashed through
the desert. It is a breathtaking sight
for tourists.

“Let’s get out and stretch our legs
and take a good look at this,” Gray sug-
gested to his son.

He found a parking spot along the
highway.. Together they scrambled up
the rugged cliff for the sweeping view
down the canyon toward Sparks.

Then, “Look, daddy!” the boy cried,
pointing. |

A bloody body was lying near the
edge of the cliff, high above the river.

Gray sped back to Sparks, where -he
located Justice of the Peace Harry Gue-
rin and reported his discovery.

“He must have fallen,” Gray told
Guerin. ‘“He’s lying within inches of
the edge of the cliff.”

Guerin notified the Washoe County
sheriff’s office in Reno. Chief Deputy
Frank Cole and Investigator Bill Dris-
coll met Gray and Guerin in Sparks and
then drove out to where Gray had seen
the body.

The deputies scrambled up to a nar-
row ledge above the river, in a spot
that was obscured from the road by a
huge boulder. ;

“Shot,” Driscoll stated flatly as he
knelt beside the body. “I can see two
slug holes in the back of his head.”

The youth’s hands were twisted be-
hind his back. Reddish marks were ap-
parent on the wrists, as if they had been
burned by a rope used to truss him.
However, no rope was in sight. In one
of the pockets of his trousers were two
pennies.: A wallet in his hip pocket con-
tained a single dollar bill.

The wallet gave identification of the
owner as Albert Larry Waters of Collier
Canyon Road, Livermore, California.

“That’s the kid they've been looking
for!” Cole exclaimed. “The one who
was kidnaped from a service station!”

Cole scowled as he surveyed the nar-
row ledge, which rims a 50-yard straight

drop to the river below. “It doesn’t
make much sense,” he said.

“A killing like this never does.”

“I mean, why didn’t the killer push
the body over the edge?” Cole asked.
“Chances are it never would have been
found if it went into the river.”

“The chances were against it ever
being found here, too,” Driscoll said.
“It seems to me, no matter where a
killer hides a body, sooner or later it’s
found. It’s almost like an act of God.”

Word of the discovery of Larry Wa-
ters’ body was flashed to Livermore, and
Detective Wilson and Criminologist Gee
left immediately for the 245-mile trip
to Reno.

They took with them photographs of
Larry Waters and a sketch prepared by
Inspector Logan Page, an artist with
the Oakland police department, of the
young man Howard had seen Larry
leaving the station with.

The only other clues were the descrip-
tions of~the blue sedan with the New
Mexico license plates and the dark
jacket, with the dragon crest on the
back, worn by the abductor.

When the Livermore officers arrived,
Driscoll informed them that the body
was being examined by County Pathol-
ogist Doctor John W. Callister.

Was the missing youth from Livermore, California, with him?

FT


The Dragon’s Trail

Miss Horton and Mansfield were
shown the sketch of the killer and the
pictures of Larry Waters:

“That’s them! I’m sure of it!” Miss
Horton exclaimed.

Mansfield also said he thought the
sketch and the photograph resembled
the pair who had been in the cafe.

“They kept talking in whispers,” Miss
Horton said. “That’s what made me
suspicious of them.”

“Did they seem to know each other?”
Wilson asked.

“Well, I guess they did. They came in
together. The one fellow—the one in the
drawing—kept his hand in the pocket
of his jacket most of the time. I thought
he had a gun.”

Miss Horton described the jacket as
either black or very dark blue, with a
large dragon emblazoned on the back.

“It must have been them,” Wilson de-
clared. i

Placing Larry Waters and his killer
in the cafe at eleven o’clock Wednesday
night brought up two new and perplex-
ing questions.

Larry had made no effort to escape
his abductor or to give any sign that he
had been kidnaped. Apparently, he still
was following the instructions of his
parents not to resist the gunman. Why,
then, had he been gunned down less
than an hour later?

The second puzzle was the time ele-
ment. It is only a little over a six-hour
drive at normal speed from Livermore
to the cafe where the pair had been
seen. Yet eleven hours had elapsed be-
tween the time Larry had left the serv-
ice station and the visit to the cafe.
Where had they been during the un-
accounted five hours?

ATER that same afternoon two

youthful bandits entered a loan-
company office in Las Vegas, Nevada.
They carried revolvers. They tied up
the employees and several customers
with electric cord ripped from lamps
and locked them in the rest room. Then
they took the keys to a company car and
$700 in cash and fied.

Las Vegas detectives, investigating
the crime, learned from the victims that
one of the bandits had had a .25-caliber
automatic.

The victims were shown the sketch
of Larry Waters’ abductor, which had
been sent out on the telephoto system
from Livermore.

“That looks like him!” one of the
victims declared. Several others agreed.

Road blockades were set up through-
out Nevada, with a description of the
pair and of the loan-company car they
had taken, and Las Vegas officers
searched the city for the blue sedan
with New Mexico plates, which they
believed the bandits might have aban-
doned. :

In Livermore, Mitchell and Madigan
continued to question John Graham.

“You’re in a real tough spot unless
you can tell us where you were Wednes-
day afternoon and evening,” Mitchell
said finally. g

“Okay, I’ll tell you!” the boy cried.
“But I suppose it’s going to get me in
trouble.”

Graham claimed that on Wednes-
day afternoon he had gone to a used-
car lot in Livermore and taken a sports
car out for a demonstration ride. He’d
had the car out for several hours.

“A sports car, or a blue sedan with
New Mexico plates?” Mitchell asked.

“A sports car! You can ask the sales-
man. I told him I was twenty-one. He
said he couldn’t let me take it out un-
less I was of age.”

Mitchell drove to the used-car lot,
where the owner readily recalled that
Graham -had taken the car out. “In

fact, he was here about noon,” the man’

declared. “He brought the car back at
four o’clock and then stood around for
an hour or so talking about it.”

The positive identification by the car

64 .

(Continued from page 14)

dealer, accounting for Graham's whereé-
abouts at the time of the abduction,
completely cleared the youth of any
suspicion in the crime. ‘

“Why didn't you tell us about this
right away?” Mitchell asked him. :

“I was afraid I’d get in trouble for
lying about my age.”

“What kind of trouble did you think
you were in as a suspect in the Waters
case?”

“Well, I knew I didn’t do that. I fig-
ured you’d find out I didn’t have any-
thing to do with it sooner or later.”

Graham was released. -

Early in the evening a highway sig-
nalman was stopping traffic, permitting
only one-way movement, on a stretch
of road being oiled ouside of Caliente,
Nevada, 200 miles from Las Vegas, near
the Utah border. A car pulled up with
two young men and a girl in it.

The trail began
with a dragon in
a_ service station

“You're going to have to wait awhile,”
the flagman told them. {

“Like hell we are, pop,” one of the
youths replied, pointing a pistol at the
flagman. “Get out of the way or I’ll
put a hole in your head.” ,

“You can’t go through. Cars are
coming the other way,” the flagman
protested.

“They can take to the ditch.”

At that moment State Highway Pa-
trolman Duke Hill came down the one-
way stretch of road. He saw the youth

pointing a gun at the flagman and '

whirled his patrol car to block the road
completely. , : ;

The gunman sighted Hill and opened
fire. A slug caught Hill in the knee.

Hill shot back.

The gunman’s car jerked into motion
and screamed in a tight turn to head
back down the highway toward Las
Vegas.

Hill radioed a report to highway pa-
trol headquarters in Glendale. ;

“IT must have hit their radiator,” Hill
said. “I can see water on the road.”

“How badly are you hurt?”

“I can‘hold out here until you get
them, so they can’t double back. Then

I'll have somebody take me in to the |

hospital in Cedar City.”

Police cars screamed out of Glendale
to set up a road block at Alamo.

The trio in the fleeing car was forced
to stop a few-miles from the exchange
of gunfire-with Hill when the engine of
their automobile overheated and stalled.

They stopped a car with two women
motorists in it, shoved them out and
sped on down the highway.

A barricade had been put. across the

road by the time they reached. Alamo.

Without slowing‘up, they slammed into

it. :

The car slewed off the highway and
smashed into a ditch. Both youths were
knocked unconscious. !

Hill was notified that he could go to
the hospital in Cedar City, Utah. The
trio was taken back to Las Vegas. There
witnesses readily identified the two men
as the pair who had robbed the loan-
company office earlier in the day, ac-
cording to police, who also said that
the car abandoned on the highway was
the one taken for the getaway.

The men said that they were Joseph
James Sorce, nineteen, of . Berkeley,
California, and Robert J. Plumb, 30,
of San Leandro, California. The girl
said she was Sheryl Ann Ellender, eigh-
teen, of Sulphur, Louisiana.

Sf

Las Vegas Police Chief Ray Sheffer
and Assistant Chief George W. Allen
questioned the trio about the abduc-
tion and slaying of Larry Waters.

“We didn’t kidnap that boy or kill
him,” the girl insisted.“And we can
prove it.”

“How?”

With a shrug, the young girl said, “I
guess it don’t make any difference now.”

Sheffer claimed the gir] told him that
she and her two companions had robbed
three service stations in: Reno on the
Wednesday afternoon that Larry Wa-
ters was kidnaped. He claimed she also

‘described a string of robberies commit-

ted by her two companions all the way
from New Orleans through Denver and
Los Angeles.

Reno officials, with the information
supplied by Sheffer, claim they were
able to establish that Sorce and Plumb
had been in Reno pulling a‘stick-up at
the time Larry Waters was abducted in
Livermore. They also established that
the land and groove markings on test
bullets fired from the .25 automatic used
by Sorce were different from those on
the bullets removed from the young
service-station attendant’s head.

Hardly had this lead died, than the
Denver police called Sheriff C. W.
Young in Reno.

“We've picked up an AWOL Army
private by the name of. Albert Gonza-
les,” a Denver officer said. “He’s a na-
tive of New Mexico and was driving a
blue Ford with New Mexico plates. He
admits being in Los Angeles but denies
knowing anything about the kidnaping
or killing in Livermore.”

Sone he have a gun?” Young asked.

“ 0.”

“How about a jacket with a dragon
embroidered on the back?”

“We didn’t find one in the car.”

Young asked the Denver authorities
to send a picture of Gonzales to his of-
fice and one to the Alamedo County
sheriff's office in Oakland.

Several more suspects were rounded
up in Reno. Each was carefully investi-
gated, but each eventually was released.

Sheriff Gleason ordered 8,000 copies
of the sketch of the wanted man, to be
distributed to every police department

. in the Western states.

Gonzales’ alibi was verified: and he
was cleared of suspicion.

“Next came the
kidnaping of a
teen-aged boy

A week went by. The leads came in
more slowly. ‘

All the clues gathered in the first
flush of the investigation had been
evaluated carefully. Both the Washoe
and Alameda. County officers were
forced to admit that they were without
any solid leads to the slayer.

“We've just about had it, unless we
can get a break,” Wilson reported to
Sheriff Gleason. “Of course since the
killing actually took place in Nevada,
the investigation belongs to them.”

“The boy was kidnaped here and
we’re going to do everything we possibly
can to solve it,” Gleason stated firmly.
“We still have jurisdiction on the rob-
bery and kidnaping charge and we
aren’t going to close the file on this case
until the killer has been caught.”

wn have just one suggestion,” Wilson
said.

“What’s that?” .

Wilson explained that he believed the
robbery of the station where Larry had
been kidnaped probably was not the
first holdup the killer had pulled.

“He was in a car with out-of-state
plates. That means he must have been

. traveling around.”

“What about it?” Gleason prompted.

ai cia aaa eles

“I'd like to run up to Sacramento and
go through the state files on all the gas-
station stick-ups during the week be-
fore Larry was kidnaped and all those
reported since then. If I can locate some
other victims of the same robber, they
eae give us something for a new
ead.”

“Go to it,” Gleason said. “I don’t care
what you do or how you do it—so long
as we get some action.”

The state bureau of criminal identifi-
cation and investigation at Sacramento
compiles crime statistics reported by all
law-enforcement agencies in the state.

It was a tedious job, scanning the re-
ports, searching for a description that
would fit the baby-faced youth who had
kidnaped Larry. But after two days, in
which Wilson examined hundreds of re-
ports, he finally located one he thought
might fit. It was from San Francisco,
where a service-station operator named
Elmer Lawrence reported he had been
forced to hand over $68 to a gunman
two days before the abduction of
Waters in Livermore.

The description of the bandit, includ-
ing a jacket with a dragon emblazoned
on the back, was similar. But the de-
scription of the car was different. Law-
rence said the holdup man had fled in
a blue-green Ford bearing Utah license
plates.

Wilson drove to San Francisco to
interview Lawrence. After going over
the description of the gunman, Wilson
asked, “How about the gun he held on
you?”

“I’m not too familiar with guns. It
was just a little one. I thought it might
be a toy, but I decided against taking a
chance.”

Wilson told him he was lucky not to
have taken the risk, as the gun he de-
scribed probably was a .25-caliber auto-
matic, like the one used to snuff out the
life of Larry Waters.

“How sure are you about the license?”
Wilson asked. “Could they possibly have
been from New Mexico instead of.
Utah?”

“T’m positive on that. You see, I took
a trip down that way this spring. The
Utah plates have a red background with
white numbers. New Mexico has a
maroon background with yellow num-
bers. I'll show you.” Lawrence had a
folder put out by one of the oil com-
panies which pictures in color, the li-
cense plates of all the states. He had
been correct in naming the colors for
Utah and New Mexico.

“I didn’t get the numbers, but I’m
sure the guy had Utah plates on his
car.”

Wilson went to Livermore to see
Howard. —

“Are you sure the car you saw Larry
leave in had New Mexico plates?” he
asked.

“I. guess so,” Howard -answered.
“They were red with white numbers.”

“Are you sure of that?”

“TI think so.”

“That’s the color combination of the
Utah license.”

“I thought it was New Mexico.”

“New Mexico has a maroon back-
ground with yellow numbers.”

The service-station owner frowned in
thought. “I could have been mistaken,”
he said. “It might have been Utah in-
stead of New Mexico.”

“Do you recall actually seeing the
name of the state on the license?”.

“I can’t remember,” Howard said
frankly. “At the time I thought it was
New Mexico, but now I’m not sure, It

Then the body,
high up on the
side of a cliff


. Y

ee a oe | y Thaaed ped liciiieate ate Te eA ie rs aay Gee fe Oriaate aoe bit te en ‘WAPOA MLPA NCR tes til
‘ f » ivy ¥ * enn Par eae “ + } 4 E
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STATE v. BEHITHR Nev. 1001
29 P.(2d)

iissions
vy of his
convie-
© error
ifession

ug that

yn with

parison of palm prints of defendant’s hand
With impression of palm prints on blood-
smeared railing of deceased’s bed, held prop-
er, in view of direct examination regarding
investigation of homicide in deceased’s apart-
ment.

{2. Criminal law €=°763, 764(22), 773(3).
In homicide prosecution, instruction on
defense of insanity, elements necessary to es-

examination concerning finger prints was un-
favorable to defendant,

follows: (1) Error in admission of evidence;
(2) errors in instructions and refusal to give
instructions requested by the defendant; (3)
improper argument of the district attorney ;
(4) error in refusing to grant a new trial
upon the ground of after-discovered  evi-
dence.

In order to thoroughly understand the
various objections and the court’s rulings

an con- tablish defense, and burden of proof held not thereon, it will be necessary to give a state-
rent of erroneous and not improper as invading prov- ment of the facts concerning the homicide
iself is ince of jury or disparaging defense of insan- yng a synopsis of the testimony bearing up-
dt which ity. on the assignments of error.
ee Ge 13. Criminal law €=778(10). Sylvia Reither, referred to throughout the
; ’ Defendant’s instruction that state’s fail- record as “Maxine,” was a habitat of the
ons of ure to introduce available finger print testi- restricted district in the city of Las Vegas,
mony authorized inference that testimony Ney, She, together with her consort, Fred
would be unfavorable held properly refused, Green, occupied Apartment No. 6 of the Dees
lence of where: deputy sheriff, who took finger prints, Apartments in that district. Between the
i.e not testified as defendant’s witness and his cross- hours of 8 and 9 o'clock, nearer 8 than 9,

on the morning of July 23, 1981, Maxine was
found lying nude crosswise her bed in her
apartment in a pool of blood, unconscious
and in a dying condition. As soon as pos-
sible she was removed to the Las Vegas

not to Appeal from District Court, Clark Coun- Hospi ; Sa .
eeu ty; J. Emmett Walsh, Judge ospital, where, upon examination by a

ierefore
howing

a of an-
‘Ss apart-

Joseph Behiter was convicted of murder
in the first degree, and he appeals.

Judgment and order denying a new trial
affirmed, with directions.

that no point is made that the evidence is
insufficient to support the verdict, the judy-

surgeon, it was discovered that her skull had
been crushed, and within an hour after she
died without regaining consciousness,

Fred Green, the consort of the deceased,
testified that upon entering Apartment No. 6

pe McNamara & Robbins, of Elko, for appel- at about the hour of 8:30 on the morning of
view of lant. did vt of dace adie oo. screen ane
ei : the lock on the rear door had been torn an
84 _ ined triage Fai Sead f ia a. broken. Upon entering, he called to Maxine,
: ° e ry as .y. asking what the screen and the door were do-

Gray Mashburn, Atty. Gen., and W. T. scan ing open. Receiving no reply, he started

offense = and Julian Thruston, Deputy Attys. Gen., towards the bedroom and met the defendant
sible if for the State. coming out. When asked what he was do-
offense ing there, he replied that he heard her
SANDERS, Chief Justice. scream, and a colored person ran out. They

The appellant, Joseph Behiter, designated then engaged in a scuffle, and Green called for

. ahinee- _ here as defendant, was convicted of murder help. One Norman Westmoreland, an occu-

used on in the first degree for the killing of Sylvia pant of an apartment near by, responded with-
her wo- Reither, better known as “Maxine Arm- in a few minutes, and, while he held the de
irtment strong,” and was sentenced to death. Upon fendant, Green entered the room, and, seeing
oO prove the trial, the accused relied upon his plea Maxine in the condition described, rushed
of “Not Guilty” and his defense of “Not back and exclaimed: “Tle killed her.” he

Guilty by Reason of Insanity.” The case ig defendant exclaimed: “I didn’t do it. Let

nt ev. before us on appeal from an order denying me go. Turn me loose. I didn’t kill her,
D Giinn ae a new trial and from the judgment. We note but I saw a nigger kill her.” The scuf-

fle continued between Westmoreland and the
defendant, during which a night officer ar-

fendant, ment and sentence. ‘he errors relied up- rived and the defendant was taken to jail.
ided dm on for reversal relate solely to the court’s Green, Westmoreland, and others then went
lateral rulings on questions of law arising in the into the room and saw on the bed a hammer,
course of the trial. The various assign- described in evidence as a prospector’s pick,
ments of error are classified and discussed the handle of which was smeared with blood.
riff, de- in the opening brief under general topics, as The pick had been taken from Westmore-
of eom- €=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

29 P.(2d)—634%

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1000 = Nev.

3. W. 277; James v. State, 188 Ind. 579, 125
N. Bb. 211; Warren et al. v. State, 35 Okl. Cr.
430, 251 P. 101.

[3] It is further urged by the defendant
that the complaint upon which the search
warrant was based was insufficient, and was
based upon hearsay evidence, and not upon
facts within the knowledge of the party mak-
ing the affidavit for the search warrant. The
truth of an affidavit to procure the search
warrant positively sworn to is not an issue
in the trial of a case in which evidence pro-
cured by such search warrant is offered.
Phillips v. State, 34 Okl. Cr. 52, 244 P. 451.

The motion of the defendant to quash the
warrant of arrest and information was prop-
erly overruled.

[4] It is further urged by the defendant
that the evidence in this case is insufficient to
gustain the judgment. With this contention
we cannot agree, yet it is true the amount of
whisky recovered was small, and there is a
total failure of any evidence to show that
the defendant was selling, giving away, or fur-
nishing whisky to others.

Considering the circumstances in this case,
and the action of the defendant when the of-
ficerg went to search her home, and the fact
that she was pouring something out of a keg,
we hold the evidence sufficient to sustuin the
judgment.

The ease is affirmed.

EDWARDS, P. J., and CHAPPELL, J., con-
cur.

Ante ee
] Ta eee EY
(RG RORRIRLS y

STATE v. BEHITER.
No. 2971.

Supreme Court of Nevada.
March 5, 1934.

1. Criminal law G@1186(4).

Supreme Court, in criminal case, will not
set aside judgment of conviction or grant new
trial where, upon examination of entire case,
verdict is manifestly right, or no other verdict
could have been properly returned (Comp.
Laws 1929, § 11266).

2. Criminal law €=531 (4).

Accused may introduce evidence to rebut
state’s claim that alleged confession was vol-
untary.

29 PACIFIC REPORTER, 2

SERIES

3. Criminal law €=1137(5).

Where alleged confession and admissions
of accused were disclosed by testimony of his
own witness, accused, on appeal from convic-
tion, held not in position to predicate error
upon admission of such alleged confession
and admissions as being involuntary.

4. Criminal law G=409.

“Admission” is something less than con- .

fession, and is merely acknowledgment of
some fact or circumstance which in itself is
insufficient to authorize conviction, and which
tends only toward proof of ultimate fact of
guilt.

[id. Note.—For other definitions of
“Admission,” see Words & Phrases.]

5. Criminal law ©—409.

As basis for introduction in evidence of
alleged admissions by accused, state is not.
required to make preliminary showing that
ndmissions were voluntarily made.

6. Criminal law 409, 516.

Accused’s statements in conversation with
sheriff after alleged homicide held not to
amount to confession, but constituted mere
admissions indicating guilt, and therefore
were admissible without preliminary showing
of voluntary character.

7. Criminal law C=1169(3).

Error, if any, in admission of alleged
confession and admissions by accused charged
with homicide, held not prejudicial, in view of
other evidence pointing almost conclusively to
accused’s guilt (Comp. Laws 1929, § 11266).

8. Criminal law ©=369(2).

Evidence showing commission of offense
other than offense charged is admissible if
teading directly to establish guilt of offense
charged.

9. Criminal law C=359(3).

In homicide prosecution, evidence show-
ing commission of another offense based on
defendant’s entry into room of another wo-
man before entering deceased’s apartment
held admissible as directly tending to prove
offense charged.

10. Criminal law G21169(3).

In homicide prosecution, admission of ev-
idence showing commission of another offense
based on defendant’s entry into room of an-
other woman before entering deceased’s apart-
ment held not prejudicial, where defendant,
as witness in his own behalf, grounded de
fense of insanity upon such alleged collateral
offense.

11. Criminal law G489.
Cross-examination of deputy sheriff, de-
fendant’s witness, regarding result of com-

ee NE


Blackwell. Smiles °

Fees

pate ror
~
st

pea ‘

oy

As Hels Executed

Yea. Old Youth: Spends Last. Hours

ae With: Bible. om Ministers |

By ROBERT LAXALT
United Prensa Staff Correspondent
David Blackwell, "teen-aged killer of two Reno policemen,
died with a smile on his face at dawn yesterday.
The 19-year-old former high school youth from Tacoma,
Wash., was strapped into the execution chair in the gas
chamber'at the Nevada State Prison at 6:14 a.m.

At 5:17 a.m. the Jethal hydrocyanic fumes were released
and five seconds later he was unconscious.

Breathing stopped at 5:22 a. m. and at 5: 26, nine minutes

‘alter the cyanide tablets tumbled /—
Into the vat of sulphuric acid be-
‘neath his chair, Blackwell was
pronounced dead.

His parents; Mr. and Nes: Rol-
- and Blackwell of Tacoma, and his
older brother Harold accompanied
his body to Gardnerville where he
was buried in the Garden Ceme-
tery. Final ‘rites were conducted
by the Rev. Lewis George of the
First Calvary Church of Gardner-

ville.

. ‘Parents Visit

Blackwell had a final visit with
‘his parents and brother yesterday
afternoon, He.was ¢alm and out-
wardly cheerful during the fare-
well scene, and when one minister
said goodbye, Blackwell answered
“It's not goodbye—it's so Jong.”

Blackwell's final: request, jron-
ically enough, was for a “great big
chocolate milkshake.”

Blackwell consumed not one ht
three such milkshakes furnished

by Warden Richard Sheehy. He:
had a chicken dinner. .

He passed the Jong hours of the
night reading a Bible and’ talking
with Rev. George and Rev, Robert
Dewese’ of the Faith. Temple
Church In Tacoma.

He remained resigned to “his
{ate and cheerful most of the
night, ‘showing signs of breaking

only o ~

Thix incident? occurred at 3
o'clock, little more than two hours
béfore the time for hix execution.
_ Blackwell and Rey. George had
‘knelt beside the youth's bunk to |
pray. When Blackwell arose, he,
Was ‘crying,

: He shook his head and washed
oe face, ryeeining control of his
‘emotions, :

At) 4:30 ‘am, the dion, broke
“outalde his death- -row window, He
ked outside and said, ‘Welk I’ il

Se ready” when they come to get
me,” + Fos

3
. '

-was sealed were, “I'll be seeing

glass ‘Windows of the chamber,
’ Blackwell met them with a smile.
i They Included about 12 policemen,
’ Including“ Chief ‘Lorenz Greeson

Vaoes Guards

When the guards arrived thirty
Minutes later, Blackwell faced
them smilingly. There was no
need to help him along the 200
yards down the long prison corrl-
dors and acroés the outdoor. yard.
He led the way himself.

‘ When he first entered the exe-
cution chamber, he insisted upon
shaking hands with Warden Shee-
hy and the guards. His last words
before the door of the chamber

elk '}

When the more than 40) wit-
nesses’ gathered about the side

and ‘Gene Cowan, who shot and
wounded Blackwell in the hotel
oom » where: Detective Capt. Roy
iGeach. and Detective Sgt.’ Allen
| Glass’ met their death, -
“J After Blackwell had been taken
tothe hospital after the shooting,
Cowan visited him and told him he
would ‘meet, him again at the gas
t menctar ey! \
i! wet Cowan

Reoognizes

pears recognized Cowan this
Bie smiled, then ble
: Caran whe stood next to the
ie glass window Mm the gas chamber,
Nala this morning, ‘The day he
i phot Roy‘ and Allen I promised
him I'd be here. He knew I would
>be, and I kept the date.”:
“} Elgzewhere in the prison, inmates
"were ‘noticeably Ag do dle :The
*/peven prisonera new awaiting exe-
“cution'in death‘row were’ sobered
i gnd silent. “In'one of ‘the cell
} blocks,“"James? Blake, captured
% with’ Blackwell,at the time of the
7 hooting, wept: ‘through the . early

Vamporning | hours. + ‘
bar ve rp ‘Thomassen, third aie
“ber-of the trio, slept but little dur-

iA

i.

ing the' night, but, abgwred. Bo emo.
HithLa mmoening. Art ote,


BLACKWELL'S
CASE VIEWED
BY MINISTER

‘Absence of Outlet

For Energy’ Says
‘. Clergyman

By UNITED PRESS
One minister who knew: Dayid
Blackwell since his early child-
-hood attributed his “going wrong”
to the absence of an outlet for his
youthful energy. ;
Rev, Robert Dewese, of the

Faith Temple Church in Tacoma,
Wash., sald, “Dave played with my
kids. They grew up together. But
when they entered high, school,
something happened. Dave wasn't
Interested In athletics. He had no
outlet for his youthful-energy.”
Rev. Dewese said that Blackwell

ing to work Jn a warehouse before
going to school. Unknown to his
parents,. he began walking the
streets at night with a “rough
crowd.” .

When mother and father dis-
covered the fact, it was too late.
Blackwell was on his way to a re-
formatory. for car theft, and his
crime career was launched.

“I sincerely believe that if Dave
could. have found an outlet some-
where, he would not have ended in

ardse before daylight every morn-|..

that ‘gas chamber this morning,” |
\the Rev. Dewese said. “He was
‘not a bad boy, never. He was mis-
chievous, as ahy other youngster,
is, but pleasant and cheerful about |
it, never mean. ee
“We who’ knew him were
shocked when he escaped from the.
reformatory and shot a friend, We
were even more astounded’ when
we heard of the Reno shooting,
but it was too late then,”
Blackwell's first conviction was
for car theft. A trustee at a Ta-
coma reformatory, he escaped one
night. Apparently toughened by
hix association with potential

1a, | endo
Weleda Sng

criminals, his first move was to
atenl a gun, st

Then he waited on a darkened

street for a friend, who had tipped |
off police in the theft which sent.

Blackwell to prison. He shot. at
the youth three times, striking

him once and. leaving him for,
dead. The youth later recovered.|

|. Then, in an amazing maneuver,
he scaled the walls of the reform.
atory and sought out Arnold
Thomassen and James Blake. The
three stole a car.and launched on
& short-lived crime career of
armed robberies. -

In November, 1947, while Black-
well and Thomassen were in a
Reno hotel room, police entered.
Thomassen, gun in hand, was dis-
armed at the door. Blackwell, who
was lying In a bed in an adjoining
room, watched Officers Geach and
Glass approach. ' :
‘When they ripped the covers off
his bed, he jerked out a gun and
riddled: them with bullets. A shot
from a third officer struck Black-
well in th¢ shoulder and he sur-
rendered. i Pec

‘The Rev. _Dewese’ described
Blackwell as a very- intelligent
youth who could have done some-
thing with his life hdd he'taken

_the right‘ path. fee * oad 3S

" ph ect “ak, setae
i a oes eve Pe ve
-f eo, fe ¥ vy) ; :
a i Fare
‘
4

Ko WY

E_L3-/I49

Go


FH
soa WS

BgSt
ne

EgetE

ee eae neem

ee " 4
Hat ey

°

perme eormee eter
4

been recovered ta Ue.

1

day donated $500 each te the |

police association te be givea te

24 +. | Se

Club and Rolo Casino, yester-

Friday. had


BLACKWELL, Dayid, white,-19, asphyx. Nevada SP (Washoe) 4-22-1919.

'
'
H
i Me AA
Deputy Sheriff Ean. Grirritn killed in line of duty Captain Leroy Josepu Geacn killed in line of duty,
May, 1947, Washoe County Sheriff's Office November 8, 1947, Reno Police Department
* * * * 7
Sergeant ALLEN A. Grass killed in line of duty, Sergeant GeorGE CHANDLER killed in line of duty,
November 8, 1947, Reno Police Department January, 1948, Nevada State Police
i
» cE, THE NEVADA PEACE OFFICER
.--

bee tee

PS EY A eS YA AN hp

sath bai

286 Nev.

assigned to them the task of checking the
various hotels of Reno for men answering
the description of those who had perpe-
trated the robbery. Sergeant Read lo-
cated the men at the Carlton Hotel. Ser-
geants Read and Cowan went to the hotel,
where they were met by Sergeant Allen
Glass and Captain Geach. The four of-
ficers proceeded to the door of the two-
bedroom suite which the men were occupy-
ing. Captain Geach knocked on the door,
announced that they were officers, and
demanded entrance. The door was opened
by Arnold Thomassen, who had a revolver
in his hand. He was disarmed by Read
and Cowan, the latter taking the gun. The
defendant Blackwell was lying in a bed
in the adjoining room. Captain Geach
entered the latter room through the door
connecting the two rooms. Sergeant Cowan
testified, “He (Captain Geach) took hold
of the covers and he says ‘Come out of
there’, and this man in bed opened fire.
Sergeant Glass then stepped in the doorway
and cut off my view. It was all over in a
matter of seconds; and Sergeant Glass was
shot and took one backward step.and fell,
and then I started to shoot with Thomas-
sen’s gun. I shot, and he hollered ‘I am hit,
I. am through’, and I said ‘Throw down
your gun’. Immediately there was a gun
throwed down’ in the doorway and I went
over and picked it up and told Daryl Read
to handcuff the two of them. He hand-
cuffed Blackwell and then Thomassen and
went to the desk to get help, and while he
was gone Captain Geach died, and Sergeant
Glass was alive.” Captain Geach was shot
three times. Sergeant Glass was shot four
times.

The Court received the testimony of
Walter Ponciano, the bartender, as to the
robbery of the Highway 40 Tavern, and
the defendant was identified by the witness
as being one of the hold-up men. Clayton
D. Phillips, the then Acting Chief of
Police of the City of Reno, testified to a
conversation which he had with the de-
fendant on November 20, 1947, at the
Washoe County jail. According to Phil-
lip’s testimony, defendant in his statement
admitted escaping from the Monroe State
Reformatory, near Everett, Washington,
on October 13, 1947; robbing a theater in

198 PACIFIC REPORTER, 2d SERIES

Spokane, Washington, where he obtained
about $150; robbing a Safeway Store in
Salt Lake City, where he obtained in the
neighborhood of $300; another Safeway
Store in Greeley, Colorado, where he ob-
tained in the neighborhood of $1,300;
purchasing guns at a Sporting Goods Store
in Butte, Montana; stealing cars to assist
himself in his travels; shooting David
Wold in Tacoma, Washington, because he
had “ratted” on him; stealing a Buick
Sedan in Tacoma, Washington; purchas-
ing a grappling hook, some saw blades and
a rope at the store in Seattle, proceeding
to the vicinity of the Monroe State Re-
formatory, where he used the grappling
hook and rope to go over the wall of the
prison, planting a gun and some ammuni-
tion near the brick school of the prison;
assisting Thomassen and Blake in effect-
ing their escape from the prison on No-
vember 5, 1947; the robbery of the U.S.
40 Tavern, in Reno, Nevada, returning to
the hotel, where he and his companions
changed clothes, that he retired around
11:00 o’clock that evening, that the next
thing he remembered the two officers were
standing by his bed and he proceeded to
shoot each of them. The witness sent the
information relative to the planted gun to
the Superintendent of the Monroe Reform-
atory. On cross-examination by defend-
ant’s counsel, Phillips further testified that
defendant told him that previous to his
incarceration in the Monroe Reformatory,
he had been involved in numerous car
thefts and armed robberies, during one
of which he had shot a Tacoma grocery-
man. Ray Ryan, Superintendent of the
Washington State Reformatory at Monroe,
Washington, testified that defendant was
an inmate of the institution, a State Prison
where men between the ages of 16 and
35 are incarcerated for felony convictions
in the State of Washington; that defend-
ant escaped on October 13, 1947, from the
institution; and that acting on informa-
tion received from Chief Phillips, he found
a gun buried near the brick school of the
institution, together with 49 rounds of
ammunition, Defendant did not take the
stand, and no witnesses testified in his be-
half.

STATE vy. BLACKWELL Ney. 287
Cite as 198 P.2d 280

Defendant contends that, for the deter-
mination of the degree of murder‘and the
penalty, the hearing provided for by the
statute involves two distinct steps: first,
a trial before the Court to determine the
degree; and, second, an inquiry as to
suitable penalty. Defendant urges that
the testimony of Ponciano concerning the
hold-up of Highway 40 Tavern was inad-
missible because not related to the charge
of murder and not within any exception
to the rule prohibiting evidence of other
crimes, and urges that the testimony of
Phillips and Ryan was inadmissible _be-
cause not related to the charge and because
no corpus delicti with respect to the prior
offenses of defendant, as related by them,
was shown.

[11-14] In Section 10068 of Nevada
Compiled Laws, quoted above, it is pro-
vided that, upon a plea of guilty of murder,
the Court shall proceed to determine the
degree of the crime and shall also deter-
mine the penalty. As stated by the Su-
preme Court of California in the case of
People v. Bellon, 180 Cal. 706, 182 P. 420,
the statute requires, at least impliedly,
a judicial determination based on evidence,
The determination of the degree of the
crime should be supported by competent
evidence, material and relevant to the
question of degree, and only such evidence
should be considered in arriving at that
determination. In the present case, the
State contends that the testimony given
by the witnesses Ponciano, Phillips and
Ryan, relative to crimes previously com-
mitted by the defendant, was competent
and relevant to show the motive and in-
tent of the defendant in shooting Captain
Geach,—that the motive and intent were
to kill the officer to prevent arrest and
punishment for the prior crimes referred
to. The State also urges that the evidence
referred to was competent and relevant
to aid the Court in determining the penal-
ty. As to its admissibility to determine
the penalty, the rule is well settled that
the prior record of the accused may be
censidered. 3 Wharton Crim.Proc. (10th
Ed.) Sec. 1890, p. 320, and cases cited;
People v. Popeseue, 345 Ill. 142, 177 NE,
739, 77 A.L.R. 1199. As to the admissibil-
ity of such evidence on the question of the

degree of murder, it is admissible if it
tends to prove motive and is not too remote
in time for that purpose. People v. Whea-
ton, 64 Cal.App. 58, 220 P. 451: People v.
Middleton, 65 Cal.App. 175, 223 P. 448;
People v. Slater, 199 Cal. 357, 249: P. 177;
Copeland v. United States, 55 App.D.C.
106, 2 F.2d 637. The robbery at Highway
40 Tavern was the immediate occasion of
the search for the defendant and his com-
panion, and was the immediate and most
potent cause for the fear of arrest and
of the motive to resist and escape. The
prior offenses related by the witnesses
would naturally contribute to the. defend-
ant’s state of mind in that regard, each
prior offense contributing in proportion
to its seriousness and nearness in time.
Only twenty-five days had elapsed since
the defendant’s escape from the Washing-
ton Reformatory, which escape was fol-
lowed by most of the offenses put in evi-
dence. Some earlier offenses were shown
in the testimony, on cross-examination, of
‘Chief of Police Phillips that “He stated,
Previous to his incarceration in the Re-
formatory at Monroe, Washington, he had
been involved in numerous car thefts and
armed robberies, during one of which he
shot a Tacoma groceryman”, In varying
degrees, these prior crimes of the defend-
ant contributed to his fear of arrest and
punishment and to his motive for resisting.

Assuming for the moment that a por-
tion of the evidence as to prior crimes was
incompetent as being too remote to prove
the motive of the defendant, we are of
the view that such proof, in the present
case, was not prejudicial to the defendant.
In the case of People vy. Popescue, [345
Ml. 142, 177 N.E. 745], above mentioned,
the Court, in considering a situation similar
to that presented here, said: “Even if it
should be assumed that the evidence of the
murder committed by these defendants
three hours before they murdered Merrill
was incompetent, this was a hearing be-
fore the Court without a jury, and the
Court is supposed, as in chancery cases, to
disregard ‘all evidence heard except that
which is competent and relevant to the
issue. Mix v. People, 116 “Ill. 265, 4 N.E.
783; Gordon y. Reynolds, 114 Ill. 118,
28 N.E. 453; Coffey v. Coffey, 179 IN. 283,

PRIVERSITY OF ALARama

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SIF EPORTER, 2d SERIES
280 Ney. 198 PACIFIC REL

6. Criminal law C>17! ;
, i sed,
Generally, on trial of an accuse
“Jeopardy” does not arise until an issue
has been raised by arraignment and _ plea.
Const. art. 1, § 8. ;
See Words and Phrases, Permanent
Edition, for all other definitions of
“Jeopardy”,

STATE v. BLACKWELL.
No. 3524.

Supreme Court of Nevada,
Oct. 5, 1948,

Rehearing Denied Dec. 20, 1948.
See 200 P.2d 698,

1. Criminal law C167

sig n ASC b one distr ict

If assignment of cas y n :

idge to another for purpose of determin- statute incluc es both degrees, and he same
4 ; 3

ing degree of the crime and penalty after as at common law it includes all geo
: S - : . . * :
intone had entered plea of guilty to in- felonious homicide. N.C.L.1929, § % 16;
aete za ra

formation charging murder was not law- § 10068, as amended by St.1947, eee a

7. Homicide C=7
The general definition of murder in

ful, second judge was without jurisdiction ye RR
i, Hehe ithe cadtng. Amd: ng: Secoee jeopardy A trial before a court, sitting without
ceil Be-ve attached fey <eaamn. ok pUCk peas a jury, begins at time of commencement of
ing. N.C.L.1929, § 10066; § 10068, as aa taking iP Nedimony.
amended by St.1947, c. 91; Const. art. 1,
§ 8; Rules of District. Court, rule 41. 9. Criminal law e173 ;
“Jeopardy” in a trial before a judge,
without jury, begins at point where presen-
tation of proof begins. Const. art. 1, § 8.

2. Judges C=15(1)

Under district court rule, a judge em-
powered to hear a cause has the power, in
his discretion, to request another judge to 49 Criminal law 173, 179
assume jurisdiction of such cause. Rules Where district judge before whom dé.
of District Court, rule 41. fendant entered plea of guilty to informa-

184 tion charging murder thereafter assigned
" ae x “is before a jury, jury Case to another district judge before hear-
ter trial begu J ’

i ini legree of
: - ing for purpose of determining de;
may not be discharged and a second jury é ame eset hy
tled except upon overruling necessity ap- Crime and penalty comm ’ : y ;
eran thi a and a violation of such jeopardy was incurred by defen ant, ve
aring of rec a wie? Byohs
alk Be IS: "“double jeopardy” and such jeopardy arose Eas second a -
ers . y i i roofs on par
3 to an acquittal. Const. art. 1, § 8, When introduction of p Pes
ee . ; state was commenced. N.C.L.1929, §

10066; § 10068, as amended by St.1947, c.
91; Const. art. 1, § 8; Rules of District
Court, rule 41.

See Words and Phrases, Permanent
Edition, for all other definitions of
“Double Jeopardy”.

4. Criminal law €>179 : :

The rule that a plea of guilty consti- !!- See Sanh aS Se 28

, Be es i :

-s jeopardy has its proper application Po : ;
dati stig a a on these for same termination of the degree of eee
only as aga pug
kind, and not to a continuing proceeding on should be supported by competent
eas Const. art. 1, § material and relevant to question of degree,

ee: and only such evidence should be consid-
- ered in arriving at that determination. N.
2, Cepmtane tae Scene) CL.1929, § 10066; § 10068, as amended by

A proceeding for determining degree St.1947, ¢. 91.
of crime of murder under statute, on a plea
of guilty, is not a “trial”. N.C.L.1929 § 12. Criminal law S=980(1) ; s
10066: s 10068, as amended by St.1947, Upon plea of guilty of murder, =
“Ol : dence as to prior record of accused may
gies? i se determining

be considered for purpose of de g

See Words and Phrases, Permanent sta soe : Fis se

Edition, for all other definitions of penalty. N.C.L.1929, § 10066; § 10068,
“Trial” amended by St.1947, c. 91.

the one original charge.

STATE vy. BLACKWELL Ney. 281
Cite as 198 P.2d 289 i

13. Criminal law €=980(2)

Upon plea of guilty of murder, evi-
dence of prior record of accused is admis-
sible on question of degree of murder if it
tends to prove motive and is not too remote
in time for that purpose. N.C.L.1929, §
10066; § 10068, as amended by St.1947,
C5) 3

14. Criminal law C=980(I, 2)

Where it appeared that prior crimes of
defendant testified to in hearing for pur-
pose of determining degree of crime and
penalty after defendant had pleaded guilty
to murder occurred during 25 day period
which elapsed between defendant’s escape
from reformatory and shooting of officer
which formed basis of crime charged, and
that such prior crimes contributed to de-
fendant’s fear of arrest and punishment
and to his motive for resisting officers, evi-
dence as to such prior crimes was admissi-
ble both for purpose of determining penalty
and on question of degree of murder. N.
C.L.1929, § 10066; §° 10068, as amended by
St.1947, c. 91.

15. Criminal jaw S980(1, 2)

On plea of guilty to murder, district
judge is authorized under statute to hear
all of the evidence which is competent and
relevant cither to degree of the crime or to
the penalty to be imposed, and then to pro-
nounce his determination as to the degree
and the penalty, N.C.L.1929, § 10066;
§ 10068, as amended by St.1947, c. 91,

16. Criminal law >1177

Where admissible evidence received in
hearing for purpose of determining degree
of crime and penalty, after defendant had
entered plea of guilty to information charg-
ing murder, amply justified judgment of
murder of the first degree and the death
Penalty, admission of evidence of prior of-
fenses, even if improper, was not prejudi-
cial to defendant. N.C.L.1929, §§ 10066,

11266; § 10068, as amended by St.1947, ¢.
91,

17. Criminal law C=573
Where defendant entered plea of guil-
ty to murder charge on December 22, 1947,
and on following day district judge de-
clared himself disqualified to conduct hear-
ing for purpose of determining degree of
198 P.2d—18y

crime and penalty and made order of as-
signment to another judge on December 26,
and the other judge on December 27, set
the hearing for January 5, 1948, at which
time hearing was conducted, defendant was
not denied right to “speedy trial”, N.C.L.
1929, §§ 10066, 10654: § 10968, as amended
by St.1947, c, 91,
See Words and Phrases, Permanent
Edition; for all other definitions of
“Speeds Trial’, :

(8. Criminal! law 980(1, 2)

Under statute, clapsing of time be-
tween judgment and sentence was not re-
quired on a hearing by judge without jury
to determine degree of murder and. sen-
tence thercon. N.C.L.1929, §§ 10065,
11041; 10068, as amended by St.1947, ¢. 91.

a

Appeal from Second Judicial District
Court, Washoe County; Merwyn Hi,
Brown, Judge.

David Blackwell was convicted of mur-
der in the first degree and sentenced to
death, and he.appeals.

Affirmed.

Ernest S. Brown, of Reno, for appel-
lant.

Alan Bible, Atty. Gen., Homer Mooney,
Asst. Atty. Gen., and Harold O. Taber,
Dist. Atty. of Washoe County and Grant
L. Bowen, Asst. Dist. Atty. of Washoe
Co., both of Reno, for respondent,

HATTON, District Judge. i

David Blackwell, defendant below, is the
appellant here. He will be referred to
herein as the defendant.

The defendant was charged with mur-
der as a codefendant with onc Arnold
Thomassen, in an Information filed by the
District Attorney of Washoe County, Ne-
vada, on December 17, 1947. On Decem-
ber 22, 1947, the defendant Blackwell en-
tered a plea of guilty to the Information,
before the Honorable Taylor HH. Wines,
District Judge of the Fourth Judicial Dis-
trict of the State of Nevada, sitting as a
judge in the Second Judicial District. The
pleaswas accepted and entered of record.

UNIVERSITY oF

ALASams

BAQtterera, or wrens ‘ j vote *
*“616T-22-y We (seyseh) dS epeagE poqerxindse “6r § pyaed “TIAN be


:

My

SARE He,

989 Ney.

The Court then informed the defendant
that it was necessary, under the charge
against him, that he be tried before the
Court, without a jury, for the purpose of
determining the degree of the crime. De-
fendant’s counsel requested that the tes-
timony of certain defense witnesses from
without the State be taken that day. The
Court stated that, beginning on the fol-
lowing morning, the Court would hear the
taking of the testimony of the said witness-
es for the purpose of perpetuating such
testimony. The Court convened on the
folowing morning, December 23rd, and
the Judge inquired if the defendant had
the necessary affidavits as required on pro-
cedure to perpetuate testimony, to which
counsel for defendant replied that they
had no such affidavits. The Judge then
stated that he felt himself to be disquali-
fied to act in the case except, perhaps,
upon the taking of the testimony to be

“perpetuated. Defendant’s counsel then

stated that the defense considered the mat-
ter to be before the Court on the merits
with respect to determining the degree of
the crime and the penalty, and that the
testimony of the witnesses referred to
should be taken at that time, and the hear-
ing then continued to such time as would
suit the convenience ofthe Court and coun-
sel. Argument was then had with respect
to the disqualification of the Judge, after
which, on tHe same day, Judge Wines
again stated that he deemed himself to be
disqualified, and that he would assign the
case to another Judge. On December 26,
1947, Judge Wines made an order declar-
ing his disqualification and assigning the
case to Judge Merwyn H. Brown, Judge
of. the Sixth Judicial District. To all of
the foregoing proceedings the defendant
entered his objections and exceptions. . Be-
ginning on January 5, 1948, and over the
objection and exception of defendant, the
case was heard before Judge Brown, who
found the defendant guilty of murder of
the first degree, and imposed the death
penalty.

Our Statute, N.C.L. Sec. 10066, defines
murder as follows: “Murder is the unlaw-
ful killing of a human being, with malice
aforethought, either express or implied.
The unlawful killing may be effected by

198 PACIFIC REPORTER, 2d SERIES

any of the various means by which death
may be occasioned.”

The degrees of murder and the proce-
dure on the trial therefor are set forth
in N.C.L. Sec. 10068, as amended by the
Statutes of Nevada,of 1947, c. 91, page
302 as follows: “Malice shall be implied
when no considerable provocation appears,
or when all the circumstances of the kill-
ing show an abandoned and ‘malignant
heart. All murder which shall be perpe-
trated by means of poison, or lying in
wait, torture, or by any other kind of will-

ful, deliberate, and premeditated killing,.

or which shall be committed in the per-
petration, or attempt to perpetrate, any
arson, rape, robbery, or burglary, or which
shall be committed by a convict in the
state prison serving a sentence of life im-
prisonment, shall be deemed murder of
the first degree; and all other kinds of
murder shall be deemed murder of the sec-
ond degree; and the jury before whom
any person indicted for murder shall be
tried, shall, if they find such person guilty
thereof, designate by their verdict whether
it be murder of the first or second degree;
but, if such person shall be convicted on
confession in open court, the court shall
proceed, by examination of witnesses, to
determine the degree of the crime, and give
Sentence accordingly. If the jury shall
find the defendant guilty of murder in the
first degree, then the jury by its verdict
shall fix the penalty at death or impris-
onment in the state prison for life. Upon
a plea of guilty the court shall determine
the same; and every person convicted of
murder of the second degree shall suffer
imprisonment in. the state prison for a
term of not less then ten years, and which
may be extended to life.’

The charge of the crime in the present
case, as set forth in the Information, reads
as follows: “That the said defendants on
the 7th day of November, A.D. 1947, or
thereabout, and before the filing of this
information, at and within the County of
Washoe, State of Nevada, did wilfully,
unlawfully and feloniously, with malice
aforethought, kill one LeRoy Geach, a hu-
man being, by firing bullets from a 38
caliber automatic pistol into the body of
said LeRoy Geach, thereby inflicting mor-

STATE y, BLACKWELL Nev. 283
Cite as 198 P.2d-280

tal wounds upon him, the said LeRoy
Geach, from which said mortal wounds the
said LeRoy Geach died within a year and
a day after the infliction of said mortal
wounds, to-wit, on the 7th day of Novem-
ber, 1947,”

The first assignment of error is set forth
in defendant’s opening brief as follows:
“That Appellant was found guilty of first
degree murder and sentenced to death in
violation of Article I, Section 8 of the
Constitution of the State of Nevada as he
was twice put in jeopardy for the same
offense and was deprived of his life and
liberty without due process of law. After
the unauthorized disqualification of Judge
Wines and a retrial before Judge Brown,

. the Appellant was twice in jeopardy.”

{1] Defendant urges that Judge Wines
was not disqualified, and hence that the
assignment of the case by him to Judge
Brown was not authorized by law. It
would seem that, if the assignment of the
case was not lawful, then Judge Brown
was without jurisdiction to hear the same
and no second jeopardy could have at-
tached by reason of such hearing. 22 C.J.
S., Criminal Law, § 241, p. 375. If that
were the situation, it would seem that the
sccond jeopardy, under defendant’s theory,
could only attach upon the defendant’s be-
ing brought to a hearing, as to the degree
of the crime, before a Judge empowered to
hear the case. There was a change of
Judges, however, which change the defend-
ant urges was unlawful and was equivalent
to a mistrial on a trial before a jury, and
amounted to an acquittal.

[2,3] The authority to assign the case
is furnished by the provisions of Rule 41
of the Rules of the District Court. That
rule reads as follows: “When any district
judge shall have entered upon the trial or
hearing of any cause or proceeding, de-
murrer or motion, or made any ruling, or-
der, or decision therein, no other judge
shall do any act or thing in or about said
cause, proceeding, demurrer, or motion, un-
less upon the written request of the judge
who shall have first entered upon the trial
or hearing, of said cause, procecding, de-
murrer, Or motion; provided, that the
judges in any district having more than one

judge shall adopt such rules as they deem
necessary to provide for the division and
disposal of the business of their district.”

Under this-rule, where-a judge has en-
tered upon the hearing of a catise or pro-
ceeding, it is only upon his written request
that any other judge may do any act in or
about the said cause. There arises from the
language of the rule the necessary infer-
ence that a judge empowered to hear a
cause has the power, in his discretion, to
request another judge to assume jurisdic-
tion of such cause. Such request, in the
present case, appears by the assignment on
the minutes of the Court. Under the rule
mentioned, the judge so assigning a Case
is not required to state the reasons there-
for. It must be recognized, however, that
in any case where such an assignment
would raise a second jeopardy against a
defendant, such application of the rule
would give way to the constitutional in-
hibition. On this appeal and on the views
herein expressed, it is not necessary to de-
termine what the result would have been
had the assignment been made to Judge
Brown after the commencement of. the
hearing. The rule is well established that
after trial begun before a jury, the jury
may not be discharged and a second jury
called except upon overruling necessity ap-
pearing of record, and that a violation of
this rule constitutes second jeopardy and
amounts to an acquittal. The defendant
urges, from analogy, that the rule must ap-
ply where a change of judge is had in the
progress of a hearing before a judge to
determine the degree of murder: that is
to say, a mistrial occurs. No precedent
dealing with the latter situation has been
presented by counsel, and we have discov-
ered none. .We regard the analogy as
worthy of consideration.

There is presented, under our statutory
provisions relating to murder, a situation
which is seen to differ from the more sim-
ple situation where a plea of guilty is en-
tered to an ordinary charge of crime.
Blackstone, in his Commentaries, page 336,
stated the rule relating to double jeopardy
as follows: “Secondly, the plea of autre fois
convict, or a former conviction for the
same identical crime, though no judgment
was ever given, or perhaps will be (being

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suspended by the bencfit of clergy or other
Causes), is a good plea in bar to an in-
dictment. And this depends upon the same
principle as the former, that’'no man ought
to be twice brought in danger of his life
for one and the same érime.”

[4] In the primary application of the
rule against double jeopardy, the plea of
guilty protects the accused from a subse-
quent accusation and trial for the same of-
fense. If, through some failure of pro-
cedure, the plea of guilty has not been fol-
lowed by judgment and sentence, the ac-
cused is nevertheless protected from: an-
other trial on the same charge. As against
any new charge for the same offense, he
may plead the former conviction. It would
seem, however, that the rule that a plea of
guilty constitutes jeopardy has its proper
application and force only as against a new
charge for the same crime, and not to a
continuing proceeding on the one, original
charge.

Defendant contends that, at the stage of
the proceedings when his plea of guilty was
centered before Judge Wines, he was placed
in jeopardy before the law. with respect to
the crime with which he was charged, and
that his subsequent trial or hearing before
Judgé Brown, as to the degree and penalty,
was a second jeopardy. He contends that,
upon his plea of guilty, he stood convicted
of murder as alleged in the Information,
with the presumption, without further evi-
dence, that it was murder of the second
degree, the burden being on the State to
raise the offense to murder of the first
degree, citing Underhill Crim. Ev. 1141, See.
572. He contends that at this point Judge
Wines stopped the trial, causing what would
be, in a trial before a jury, a mistrial. He
urges that the judge presumably having
taken his official oath, the position of the
Proceedings was analogous to the point
where a jury has been empaneled and
sworn to_try the cause, that the “trial” of
the issue of degree had been entered upon
and that the calling of another judge could
no more be had than the calling of a new
jury, upon a jury trial,

[5] It has been held by this Court, and
also in California, that the proceeding for
determining the degree of the crime of

Ney. 198 PACIFIC REPORTER, 2d SERIES

murder under our statute, on a plea of
guilty, is not a trial, An early expression
of this view in California is found in the
case of People y. Noll, 1862, 20 Cal. 164.
There.the Court said? “"The procecding to
determine the degree of the crime of mur-
der after a plea of guilty is not a trial. No
issue was joined on which there could be
@ trial,”

The case of People v. Noll was referred
to by the Supreme Court of the United
States in the case of Mallinger y. Davis,
14g RES. 31493. 105, 106, 36 L.Ed.
986, There the Court said: “The statute
of California-in relation to this subject is
in the identical language of the statute of
New Jersey. In People v. ‘Noll [supra],
the defendant on arraignment pleaded guil-
ty. Thereupon witnesses were cxamined
to ascertain the degree of the crime. The
court found it to be murder jn the first
degree, and sentenced him accordingly.
One of the errors assigned was that, after
the plea of guilty by the defendant, the
court did not call a jury to hear evidence,
and determine the degree of guilty. The
supreme court held: ‘The proceeding to
determine the degree of the crime of mur-
der after a plea of guilty is not a trial. No
issue was joined upon which there could
be a trial.’ ”

The Supreme Court stated further:
“While these decisions are not conclusive
upon this court, yet they are entitled to our
respectful consideration.”

[6] In State vy. Ceja, 53 Nev. 272, 208
P. 658, 660, 2 P.2d 124, this Court, speaking
through Chief Justice Coleman, *said that,
in determining the degree of murder, “there
was no issue to try.” It is generally re-
garded that, on the trial of an accused,
jeopardy does not arise until an issue has
been raised by arraignment and plea. In
22 C.J.S., Criminal Law, § 247, p. 384, it is
Stated that “Issue must be joined before
jeopardy can attach”,

[7] In the Information in this case, the
charge is made in the language of the
definition of murder, omitting the language
characterizing murder of the first degree:
that is to say, that the killing was deliberate
and premeditated or otherwise within the
scope of the higher degree of the crime,

STATE y. BLACK WELT, Nev. 985
Cite as 198 P.2d 280

In the case of State v. Munios, 44 Nev.
353, 195 P. 806, it was stated by this- Court,
speaking through Mr. Justice Ducker,
that the general definition of murder in
the statute includes both degrees, the same
as at common law it included all cases of
felonious homicide. It was held that the
charge, in the language of the general
definition of murder, supported a verdict
of murder of the frst degree.

[8] Just where did the jeopardy of the
defendant begin? In considering this ques-
tion we will assume, for the moment, that
the proceeding for determining the degree
of the defendant's’ guilt was an adversary
proceeding having some of the character-
istics of a-trial: “It-is well scitled that a
trial before a Court, sitting without a
jury, begins at the time of the commence-
ment of the taking of testimony. 22 C.J.S.,
Criminal Law, § 241, p. 376, cases note
69. This did not occur until after the as-
signment of the case to Judge Brown,
Hence there was no such discontinuance
of the hearing as could be deemed com-
parable to the discharge of a jury after
trial commenced. The change of judges
occurred before the hearing commenced.
Hence there was no “mistrial”,

[9] The growth of the doctrine as to
double jeopardy and the search for the
point in the proceeding where jeopardy
before a jury begins has resulted in the
establishing of that point at the moment
where the jury has been sworn to try the
Cause and a true verdict render. As an
earlier expression puts it, the jury are
“charged with the deliverance” of the
accused, and there jeopardy begins. In
trials before a judge, sitting without a
jury, the judge, as the defendant here
urges, takes the place of a jury. How-
ever, in the settlement of the rule as to
when jeopardy in a trial before a judge
begins, the weight of authority, based, it
would seem, on later reasoning and away
from the Procedure on jury trials, has re-
sulted in the fixing of the commencement
of jeopardy at the point where the pres-
entation of proofs begins. We can see no
Feason, based on fairness and justice, to

apply a different rule in the present case,

[10] Upon the foregoing considera-
tions, we are unable to find sufficient force
in the analogy to justify the finding of a
second jeopardy. We are brought to tie
conclusion that there Was one, and only
one, jeopardy incurred by the defendant
in the present case, and that such jeopardy
arose upon the hearing before Judge Brown
when the introduction of proofs on the
part of the State was commenced.

The defendant’s second assignment of
error is in the following language: “That
Appellant was found guilty of first degree
murder and sentenced to death in viola-
tion of Section 1 of Amendment XIV of
the United States Constitution as he was
deprived of life and liberty without due
Process of law, and in violation of Article
I, Section 8 of the Nevada Constitution,
when Judge Brown permitted inadmissible
and prejudicial testimony to be admitted
over Appellant’s objections before the de-
gree of murder was found. The Appellant
was likewise found guilty of first degree
murder in violation of the Amendment V
to the Federal Constitution.”

Defendant contends that the due process
inhibitions of the Federal and State
Constitutions were violated by the admis-
sion in evidence of proofs in relation to
the commission by defendant of certain
crimes prior to the murder charge in this
case. The proofs objected and excepted
to by defendant are contained in. the testi-
mony of the State’s witnesses Walter Pon-
ciano, bartender at the Highway 40 Tavern
in Reno, Clayton D: Phillips, Chief of the
Reno Police Department, and Ray Ryan,
Superintendent, of the State Reformatory
at Monroe, Washington.

The facts of the case, as brought out at
the hearing referred to, are substantially
as follows: At approximately 6:25 p. m.
in the afternoon of November 7, 1947, the
Highway 40 Tavern, in Reno, was held up
by two armed men who took the money
from the cash register and cash drawer.
The robbery was reported to the Reno
Police Department, and a description of
the two men involved in the hold-up was
given to the police department. | When
Detective Sergeants Eugene. Cowan and
Daryl Read reported for duty at 10 p. m.

that night, Night Captain LeRoy Geach

UNIVERSITY OF Aras

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70 ~‘Nev. 265 PACIFIC REPORTER, 2d SERIES

show an error of the kind authorizing
this court to set aside the judgment.
As we said in State v. Williams, 47
Nev. 279-285, 220 P. 555, 557: ‘From a

reading of this statute it must not only _

appear that the trial court erred, but it

The court, 65 P.2d at page 942 points out
the various tests for determining mental
capacity in will contests, commitment to
mental institutions, an insane person stand-
ing trial and criminal insanity, and had this
to say:

must appear affirmatively that the error
resulted in a miscarriage of justice,
or actually prejudiced the defendant.
In other words, we can indulge in no
presumption favorable to the defend-
ant. Such is the clear, unequivocal, un-
ambiguous provision of the statute.’
State v. Willberg, 45 Nev. 183, 200 P.
475, and State v. Ramage, 51 Nev. 82,
269 P. 489 are to the same effect.”

[6] Defendant next contends that the
court erred in permitting the State’s expert
witness to testify as to the sanity of the de-
fendant at the time of the act with which he
is charged, and as to whether or not he was
at that time able to distinguish between
right and wrong, over objections of defend-
ant’s counsel.

As his sole authority in support of this
proposition, the defendant relies upon the
case of People v. Jacobs, Cal.App., 51 P.2d
128.

In the case of People v. Woods, 19 Cal.
App.2d 556, 65 P.2d 940, at page 942, the
Court has this to say:

“Finally the defendant contends that
by permitting the two alienists to give
over his objections, their opinions con-
cerning the defendant’s ability to deter-
mine between right and wrong, the trial
court committed prejudicial error. In
this behalf the defendant relies almost
wholly upon People v. Jacobs (Cal.
App.), 51 P.2d 128. Unfortunately for
the defendant, but fortunately for the
people of California, the opinion in that
case is resting in a judicial morgue,
having succumbed to a painless lethal
gas in the form of an inoffensive order
by the Supreme Court transferring the
case to a higher sphere. The opinion
did not get further than the advance
sheets and does not appear in the per-
manent volumes of the reports. It is
not the law in California.”

“Tf the expert is limited to giving his
opinion that the person is insane, the ju-
ry will never know what test the expert
took into consideration as his basic test
of insanity. In a criminal case, if the
expert cannot be asked his opinion as to
whether the accused knew right from
wrong, then the jury is left absolutely
in the dark as to whether or not the ex-
pert is applying in his mind the correct
test of insanity.”

The court further stated, 65 P.2d at page
943:

“Tt is no more an invasion of the
province of the jury for an expert to
give his opinion that an accused is in-
sane including the correct legal test
than for him to give his opinion mere-
ly that the accused is insane, and none
of the cases hold that it is an invasion
of the province of the jury for the ex-
pert to give his opinion that the wit-
ness is insane. It cannot fairly be
argued that any prejudice is caused
the accused by allowing the jury to
know the basis upon which the expert
has reached his conclusions and the
grounds therefor. On the one hand,
if the jury does not believe the expert's
opinion that the accused is insane mere-
ly, it will disregard the opinion. On
the other hand, if the jury does not
believe the expert’s opinion that the ac-
cused knew the difference between
right and wrong, it will likewise dis-
regard the opinion; for the jurors
are instructed that the question is for
them to decide and that they are not
bound to accept the opinion of any ex-
pert as conclusive, and that they may
disregard any such opinion if it shall
be found by them to be unreasonable.
For citations which tend to support our
conclusion, see 11 Ruling Case Law,
584; People v. Keaton, 211 Cal. 722,

ee, Ke

I
b


"72 Nev.

adhered to by this court, that if there is
substantial evidence to support the ver-
dict of the jury, the evidence will not be
weighed by this court, nor the verdict
or judgment disturbed. This court can-
not reverse the judgment upon the ground
of insufficiency of the evidence, where there
is substantial evidence to support the ver-
dict of the jury. State v. Wong Fun, 22
Nev. 336, 40 P. 95; State v. Boyle, 49
Nev. 386, 248 P. 48; State v. Teeter, 65
Nev. 584, 200 P.2d 657; State v. McKay,
63 Nev. 118, 165 P.2d 389, 167 P.2d 476;
State v. Fitch, 65 Nev. 668, 200 P.2d 991.

[9,10] We are aware of the scrious-
ness of our responsibility in a case where a
man’s life is involved. To the degree we
are capable, we have carefully scrutinized
all matters of substance claimed as error
by the defendant. Weare also conscious of
the fact that a trial in the courts of this
state is a proceeding in the interest of
justice to determine the guilt or innocence
of the accused and not a mere contest to
determine the abler adversary. We will
not reverse criminal causes for mere error

265 PACIFIC REPORTER, 2d SERIES

or irregularity. It is only where there
has been error which is both substantial
and prejudicial to the rights of the ac-
cused that a reversal is warranted, The
defendant was entitled to a full and fair
presentation of the case to a jury of un-
biased citizens and to have his rights safe-
guarded by competent counsel, This has
been done. We believe the defendant has
been accorded the full measure of pro-
tection afforded him under the constitution
and the laws of our state.

[11] We have examined the entire case
and in our opinion. no other verdict could
be reasonably accounted for under the evi-
dence. The fact is, the evidence over-
whelmingly supports the verdict.

The judgment and the order denying a
new trial are hereby affirmed, 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 judg-
ment rendered.

MERRILL and BADT, JJ. concur.

cits
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STATE v. BOURDLAIS Nev. 471
Cite as 265 P.2d 761

296 P. 609; People v. Willard, 150
Cal. 543, 89 P. 124; People v. Sloper,
198 Cal. 238, 244 P. 362.”

A cautionary instruction was given to
the jury in the instant case. Instruction
No. 32 instructed the jury as follows:

“While you are not bound by the
testimony of expert witnesses, still, in
considering such testimony, the pro-
fessional standing of such witnesses
must be taken into consideration in ar-
riving at a verdict; and you should
consider the character, the capacity,
the skill, the opportunities for obser-
vation and the state of mind of the
expert. The opinions of experts
are to be considered by you in con-
nection with all other evidence in the
case. You are not to act upon them
to the exclusion of other testimony.
You are to apply the same rules to
testimony of experts that are applica-
ble to other witnesses in determining
its weight.” .

In Instruction No. 34 the court instructed
the jury it was their province to award to
the statements of the various witnesses the
credence and weight to which in their
judgment they might be entitled, and in
Instruction No. 2 the jury were advised that
it was the exclusive province of the jury
to decide and determine questions of fact.
It will be seen, therefore, that the instruc-
tious as given by the court properly charged
the jury as to the consideration to be given
to the testimony of the expert witness
without placing undue weight thereon. See
Wharton’s Criminal Evidence, 11th Edi-
tion, Section 993, at page 1738, wherein it
is pointed out as follows:

“Such opinions are admissible be-
cause they are scientific deductions
from the facts to enable the jury to de-
cide the questions of fact intelligently,
and they are received because the na-
ture of the facts is such that they can-
not be correctly understood by the jury
unless the expert gives his opinion as
to what such facts do or do not in-
dicate.”

The decision of People v. Woods, supra,

was cited with approval in Burgunder v.

State, 55 Ariz. 411, 103 P.2d 256, and in
People v. Dawa, 15 Cal.2d 393, 101 P.2d
498, the court held the accepted test of in-
sanity in criminal cases is whether defend-
ant could distinguish between right and
wrong, and experts were permitted to tes-
tify to such fact.

In the instant case there was no evi-
dence showing, or tending to show, that
the defendant was insane at the time he
killed Budzien. That he knew the nature of
his act is evidenced by the fact that he
planned it and executed it as planned, and
hastened from it as quickly as he could.
He knew he would be punished if appre-
hended because he knew what he was doing
constituted not only robbery but murder in
its perpetration.

The court did not err in permitting the
State’s expert witness to express an opin-
ion as to the ability of the defendant to
distinguish between right and wrong.

[7] For his sixth assignment defendant
contends that the trial court erred in giving
Instruction No. 32, in that it consisted of
judicial comment, and placed undue weight
upon the testimony of the expert witness.
The instruction when read in its entirety
clearly states that the jury is to apply the
same rules to the testimony of experts as
are applicable to other witnesses in deter-
mining the weight to be accorded. The in-
struction had equal application to the tes-
timony of Dr. Peter Bell, witness for the
defendant, whose deposition was admitted
without objection by the state. The in-
struction was given in the case of State
v. Watts, 52 Nev. 453, 290 P. 732, which is
cited as authority therefor. The instruc-
tion is not erroneous. The court could
properly instruct as to the testimony of ex-
pert witnesses so as to inform the jury that
they should not disregard such testimony
merely because given by experts.

As to his seventh and final proposition,
the defendant contends that the verdict of
the jury is contrary to the evidence in this
case. No authority, however, is cited in
support thereof.

[8] It has been the rule in the State of
Nevada, long established and consistently

a

Se AAO SEI AS RE


STATE v. BOURDLAIS |

Nev. 769

Cite as 265 P.2d 761

[4] Defendant next contends that the
court erred in giving Instruction No. 25,
Instruction No. 25 reads as follows:

“The defendant is presumed to be
sane until proven insane. In determin-
ing whether the defense of insanity has
been made out, you must decide wheth-
er the evidence for or against it out-
weighs. If the evidence tending to
show insanity outweighs that against
it, then it is proven. If not proven, it
is out of the case; if proven, it takes
its place along with other received
proof; and if, upon the whole evidence,
as thus settled, there is any reasonable
doubt of guilt, either in existence or de-
gree, the defendant must be given the
benefit of such doubt, either to acquit or
reduce the grade of crime.”

The defendant contends that Instruction
No. 25 given by the court relative to insan-
ity in the instant case was prejudicial error
for the reason that the instruction does not
state the law. In support of this argument,
appellant relies upon 23 C.J.S., Criminal
Law, § 1200, page 754. The authorities
cited thereunder do not correctly state the
law of this jurisdiction.

In the case of State v. Behiter, 55 Nev.
236, 29 P.2d 1000, the court distinctly charg-
ed that insanity is not proved or established
by simply raising doubt as to whether it
exists or not. Such has been the law of this
jurisdiction since the opinion in State v.
Lewis, reported in 20 Nev. 333, 22 P. 241,
in which the court goes to great length in
discussion of the problems of insanity as a
defense to crime.

In the case of People v. Perez, Cal-App.

263 P.2d 29, at page 31, the court stated:
“Defendant was presumed to be sane
and it was incumbent upon him to show
that at the time of the commission of
the homicides he was not able to distin-
guish right from wrong or know the
nature and consequences of his acts.”

See also State v. Nelson, 36 Nev. 403, at
page 413, 136 P. 377, wherein the court said
it saw no good reason for changing the rule
enunciated in the Lewis case relative to the
_ propositions of law on the subject of insan-
ity. See also State v. Fouquette, 67 Nev.
265 P.2d—49

505, 221 P.2d 404. The Supreme Court of
this state as far back as 1889 has approved
an instruction in the form in which Instruc-
tion No, 25 was submitted to the jury in the
case at bar. Therefore, under the facts of
this case, we find no error in the giving of
Instruction No. 25. The instruction does
correctly state the law applicable to the in-
stant case.

[5] Defendant next contends that the
court erred in giving Instructions Nos. 26
and 27, for. the reason that they are repeti-
tious and place undue emphasis on the bur-
den upon the defendant of proving his in-
sanity. In support of this proposition, de-
fendant cites 16 C.J. page 1036, note 59 and
several other citations. 23 C.J.S., Criminal
Law, § 1304.

The instructions both deal with the same
subject matter; the burden and necessary
extent of proof of insanity. Clearly they
are repetitious and failure to combine them
into a single instruction appears to be whol-
ly unjustified. However, this in itself can
hardly be said to constitute prejudicial er-
ror. We do not regard the instructions as
giving undue prominence to the principles
involved. Under the circumstances of the
case it was deemed necessary for many in-
structions to be given upon the subjects of
insanity and intoxication and overlapping
to a certain extent was almost unavoidable
and hardly likely to become conspicuous in
any one instance.

In the case of State v. Jukich, 49 Nev.
217, at page 239, 242 P. 590, at page 598 the
court said:

“In the case of State v. Johnny, 29
Nev. 203, 87 P. 3, 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.”

In our view, then, the giving of Instruc-
tions Nos. 26 and 27 did not result in a mis-
carriage of justice or prejudice the rights
of the defendant in the instant case. In this
regard the case of State v. Skaug, 63 Nev.
59, at page 74, 161 P.2d 708, 163 P.2d 130,
the court held:

“The statute (sec. 11266 N.C.L.)

placed the burden on the appellant to


32

“That’s the only thing that could have happened,” the
station man assured them earnestly. “This fellow had a
gun on Larry, holding it in his pocket or under his jacket.
I know Larry’s father told him, if he was ever held up, not
to resist, to go along with it, rather than risk being a dead
hero.

“But Larry is a hero. He saved my life. He could have

tipped me off, and ducked for cover himself. But he knew

if he did that and I made a move, the guy would shoot me.
So he went along and pretended everything was okay. That
kid has real guts. And now this guy’s got him, God knows
where.”

Howard and his daughter described the motorist, who
was a stranger to both of them, and whom they had glanced
at only casually, as about 20 years old, 5 feet 8 inches, thin
and wiry, with a narrow, sharp-featured “baby” face and
wavy, dark brown hair. He wore blue levis and a dark
blue sports jacket with a red crest of some sort on the
front. The jacket also had some other ornamentation, they
recalled—some splashy designs that looked like Chinese
dragons, on the sleeves and back.

The station operator hadn’t paid any particular attention
to the stranger’s dusty blue sedan, but he believed it was
about a 1955 Chevrolet or possibly an Oldsmobile. He had
noted, however, that it bore out-of-state license plates,
with orange numerals on a red background. This color
combination, the deputies knew, meant New Mexico plates.

After deputies had interviewed Larry’s distressed mother
and stepfather, the sheriff’s office in Oakland, late that
Wednesday afternoon, broadcast an all-points bulletin,
alerting all officers to be on the watch for the missing
service station attendant and his suspected kidnaper.

George Howard and the Waters family held to the hope
that Larry’s captor had released him by this time, possibly
in some isolated back-country area, where it would take
some time to get to a telephone. They tried to reassure each
other that the boy would be turning up any minute. But
night fell without any word from Larry, nor any further
indication of his whereabouts.

If there had been any. lingering doubt about the circum-

‘stances of the youth’s disappearance, further investigation

that night by Captain Kenneth Mitchell, Detective Robert
E. Wilson and other headquarters officers soon satisfied the
sheriff’s men that George Howard was right.

Albert Lawrence “Larry” Waters was known around
rural Livermore as a thoroughly responsible, trustworthy,
serious-minded young man. He dated occasionally, but
had no steady girl friend. He had graduated with top
honors from Livermore High School in June. His scholastic
record had won him a college scholarship award of $50 a
month. He was extremely proud of this achievement, and
planned to enter Humboldt State College in Northern Cali-
fornia in September.

Larry had been working at George Howard’s service
station for three weeks, to build up his fund for his college
education. He was extremely careful with money, and
already had a respectable sum, considerably more than
$42, in a savings account in his own name. Deputies had

‘checked with the bank and confirmed that the money was

untouched.

Larry’s brother David, 16, worked part-time at the D.
& H. station. He also had an older sister, Linda. The family
was a very close-knit one. Larry’s father had been killed
in World War II, and he had been raised under the name
of his stepfather, Waters, whom he now looked on as his
own father.

The Alameda County sheriff’s investigators found abso-
lutely no reason for Larry Waters to have run away volun-
tarily. Further, none of his belongings were missing from
his room. He had vanished just as he was, in his working
outfit of levis, white shirt and tennis shoes. His brother
said Larry couldn’t have had more than a few dollars in his
wallet in the middle of the week. To cap it, none of Larry’s
family or school friends knew any youth who fitted the
description of the baby-faced driver with the dragon jacket,
or who drove a blue sedan with New Mexico license plates.
So the youth with whom he left the service station must
have been a stranger.

Teams of deputies spent the night'‘interviewing the miss-
ing station attendant’s schoolmates and pressing other

A tourist found the body at the rim of a rocky gorge. Larry had saved his employer, but paid for his heroism with his own life

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lines of inquiry around Livermore, an agricultural and
rodeo center of some 13,000 people, which has boomed in
postwar years with expansion of the nearby veterans’ hos-
pital and the development of the big radiation laboratory.
They picked up no lead to the blue car or its driver.

Wednesday night passed without the slightest clue to
the fate of Larry Waters. By late Thursday morning, Au-
gust 27th, the Oakland sheriff’s detectives were thoroughly
convinced they had an ugly kidnaping case on their hands
—if not something vastly worse.

isc ae that Larry Waters undoubtedly had saved
Georg oward’s life by going along with the gunman, as

though nothing were wrong. They theorized that the robber -

might have threatened to harm Julia Dawkins. But as the
hours ticked by without any word, the officials feared that
Larry had paid for his heroism with his own life. .

“His folks are still expecting Larry to call them any
minute,” Captain Mitchell reported to Captain Frank
Madigan, the detective chief. “But he’s been gone almost
24 hours now, and my guess is that he won’t be calling at
all. We can hope for the best, but I think we'll find him
dead somewhere, lying beside the highway. That’s the way
it figures.”

U.S. Highway 50, which bypasses Livermore a few
blocks north of George Howard’s gas station, is a major
transcontinental route. Since the suspected kidnap car had
borne a New Mexico license, and there had been plenty of
time for the baby-faced daylight bandit to flee California
with his hostage, the radio and teletype alarm was extended
to all Western states, with special attention to the South-
west. The FBI came into the case as unofficial observer,
on the assumption that the kidnaper had crossed a state line.

The story of the presumed kidnaping was released to the
press, radio and TV, and newspapers headlined the dis-
appearance of the heroic young honor student. Late Thurs-
day afternoon Larry’s distracted parents issued a public
appeal to the kidnaper, promising him they would not
press for prosecution if Larry were released unharmed.
“We'll just consider he was taken for a little ride,” they
said. “There won’t be any questions asked. All we want is
for Larry to come home safe.”

The family’s anguished appeal was still being broadcast,
and crews of deputies were scouring back roads in the
mountain areas of Alameda, Contra Costa and San Joaquin
Counties, when the tensely awaited break came, shortly
after dark that Thursday night. Captain Mitchell’s grim
hunch had been right.

The tragic flash came from Reno, Nevada, 200 miles
northeast of Livermore, all the way across California’s
central valley and the Sierra Nevada mountains. At sunset
that late summer afternoon, a touring motorist, Guy Gray
of Barnsdall, Oklahoma, and his 10-year-old son Jimmy,
had stopped near Painted Peak, west of the town of Wads-
worth and some 20 miles east of Reno on U.S. 40, where
the heavily traveled cross-country highway winds through
scenic Truckee River Canyon. It was providential that the
sight-seeing tourists happened to pull off the road and stop
at that particular uninhabited spot, to climb a pinnacle of
rock south of the highway for a better view of the rugged
river. gorge below. :

Guy Gray and his little son crawled through a barbed
wire fence, then mounted the shoulder of the rocky out-

crop. It was the boy, climbing ahead, who spotted the prone ©

figure first. He stopped in his tracks. “Hey, Dad!” he cried,
pointing. “Look at that man, lying over: there on those
rocks! He looks like he’s—he’s dead, or something!”

Larry Waters was dead. He lay on his face, partly on his
side, sprawled among the jagged boulders on a narrow
ledge above the rushing river, just out of sight from the
busy highway 125 yards away. He had been shot twice in
the back of the head. His arms were crooked behind him.

Washoe County sheriff’s deputies, who sped to the scene
just as dusk descended over the Nevada mountains, im-
mediately recognized the dead youth from his description

as broadcast in the Oakland bulletin. He was still dressed

a
in his levis, white shirt and tennis shoes. The deputies had
been on the watch all day for the blue New Mexico sedan,
but the Nevada alert had obviously come too late.

When Justice of the Peace Harry Guerin, ex-officio
coroner, arrived from nearby Sparks with a physician,
identification was clinched by the cards in Larry’s wallet.
He had exactly $1.02 in change in a trousers’ pocket. The
coroner’s doctor estimated that the California boy had
been dead just about 24 hours, which meant that the killer
must have driven directly to Reno from Livermore. Larry
had been slain within an hour or so after the Alameda
sheriff’s officers began their hunt for him.

Rope burns on the murdered youth’s wrists indicated
his hands had been tied behind him, though no rope was
found at the scene. Searching in the glow of flashlights,
deputies found a spent .25 caliber cartridge case near the
body. This checked with the small size of the bullet holes.
Larry’s blurred footprints and the blood-pattern indicated
he had been slain at that spot, not dragged there from
elsewhere.

“It looks like the killer marched him through the barbed
wire fence and over to this ledge, probably with his hands
tied: behind him,” Chief Criminal Investigator William
Driscoll of the Washoe County sheriff’s office reported to
Oakland’s Captain Mitchell on the telephone late that night.
“He. made him face the rocks, then he shot him in cold
blood—Chinese execution style. The body almost tumbled
into the river, but it didn’t quite. The killer could have
pushed it over the edge, but evidently he didn’t bother.

“This fellow must be a maniac. There was no sense to
this killing. Why kill the boy, just because he could blow
the whistle for a $42 robbery? Unless, of course, the killer
was already wanted for something else, something worse.
Anyway, we’ve got to get this guy, and fast, before he kills
somebody else.”

Reno Sheriff C. W. “Bud” Young issued his own urgent
all-points bulletin for the sharp-featured young kidnap-

killer with the dragon jacket and the blue sedan. The hunt

spread throughout eight Western states, all the way from
California to Wyoming. Detective Wilson and Sheriff’s
Criminologist Arlen Gee had taken off from Oakland at the
first flash, to aid the Nevada officers. Through the night,
deputies pressed the kidnap-murder probe at both ends, in
Livermore and in the Reno area.

_ Early Friday morning there was a flurry in Oakland,
when police picked up a dark-haired young motorist driv-
ing a blue car with New Mexico plates. But the frishtened
driver was able to prove an alibi, and was soon cleared of
any connection with the crime.

The coroner’s autopsy surgeon recovered two .25 slugs
from Larry’s head. Powder burns indicated he had been
shot at close range. The Reno crime lab established from
the ejected shell that the death gun was an automatic.
That was the sum total of the physical evidence. Thorough
search of the Painted Rock area by daylight turned up
nothing more. Crews scoured the river banks, and ranged
up the mountain ravines on either side but found nothing.

In the absence of any other immediate leads, the obvious
step was to try to retrace the 220-mile kidnap route, on
the chance that someone had seen the killer and his victim
together. The fact that Larry Waters had been shot early

Wednesday evening, a few hours after he was kidnaped, as

confirmed by the autopsy, meant the killer must have taken
the fastest route over the mountains to Reno. Most likely

-he followed U.S. 50 through Stockton to Sacramento, then

took Route 40 through Auburn, over Donner Summit,
down into Reno and on through Sparks to the murder
scene. He almost certainly must have stopped somewhere
for more gas.

Chief Deputy Frank Cole of Reno assigned teams to
cruise the highway between Painted Rock and the Cali-
fornia border, a distance of some 50 miles, canvassing every
roadside cafe and service station. Eastern Nevada and
Utah officers also tried to pick up the trail of the blue
sedan, assuming the killer had (Continued on page 82)

33


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Dragons
on His Back —

(Continued from page 33)

kept right on going. On the California end,
Captain Madigan requested sheriffs of
valley and mountain counties to make a
similar check. The California highway
patrol cooperated, and FBI agents joined
the hunt.

But when the investigators turned up
their first hot lead, it was right at home in
Livermore. The sheriff’s office and police
had been deluged with tips and advice
from friends of the slain youth’s family
and well-meaning citizens, ever since
Larry’s disappearance was first headlined,
and more so with the finding of his body.
Detectives had run down half a dozen
tenuous leads that came to nothing, and had
checked out several potential suspects,
young Livermore men with robbery rec-
ords, on general principles. However,
Friday afternoon an angle developed that
looked hot.

Two Livermore real estate men called
the sheriff’s station, independently of each
other, to suggest a possible suspect. He
was an 18-year-old carpenter’s apprentice,
Tommy Hudson, who formerly lived in
Livermore and had once gone to high
school with Larry Waters. Hudson was a
tough, rowdy, swaggering youth who had
been in some trouble around town. He
fitted the description of the pinch-faced,
dark-haired suspect.

The real estate men, for each of whom
young Hudson had done odd jobs in the
past, tipped the sheriff that Tommy had
been in town Tuesday, desperately trying
to borrow money. He told them he was out
of a job and needed money to pay his union
dues. He had left home and had been driv-
ing around the countryside, sleeping in his
car, mainly in the San Jose area, he said,
The real estate men didn’t give him any
money. Tommy, the informants said, was
just the type of wild, erratic youth who
might hold up a gas station and kidnap the
attendant. He might have picked the
D. & H. Service Station because he knew
Larry and saw him working there. Perhaps
Tommy had asked Larry for money, and
blew his top when young Waters turned
him down. It wasn’t known whether or
not he drove a blue car.

It didn’t take long to trace Tommy Hud-
son to his mother’s home at Ceres, near
Modesto in Stanislaus County, southeast
of Livermore. Friday night, just about the
time Larry Waters’ parents arrived in
Reno to identify and claim his body, a two-
county posse caught up with young Hudson
as he worked on his battered black 1949
Plymouth sedan in his mother’s garage.
Rushed to the Livermore substation, Tom-
my burst into tears as he was being booked
for investigation. “I didn’t do it! I didn’t
do it!” he cried.

The shaken, jittery youth said he had
been around San Jose, some 50 miles south
of Livermore, on Wednesday afternoon,
and offered several weak and divergent
alibis. George Howard and Julia Dawkins
picked Tommy out of a line-up as closely
resembling the hunted gunman, but they
couldn’t identify him positively. Howard
said Hudson’s old black car was definitely
not the car he had seen. Tommy denied he
owned a gun or a dragon jacket. He was
held for further investigation.

Meanwhile the spotlight swung in an-
other direction. On Friday afternoon two
dapper young gunmen held up a finance
company office in Las Vegas, Nevada, 450
miles southeast of Reno. They took $800

from six victims, whom they left bound and
gagged. Fleeing in a stolen car with a
young blonde girl companion, _ they
wounded a highway patrolman who shot
at them, stole another car from two Cali-
fornia women, and finally were captured
in a wild gun battle after they smashed
into a desert roadblock at Caliente, near
the Utah line.

The gunmen, who escaped serious injury,
were identified as Robert J. Plumb, 30, and
Joseph J. Sorce, 20, both from the San
Francisco Bay area. The hard-faced blonde,
who gave her age variously as 17 and 23,
was Plumb’s girl friend from Louisiana.
The three confessed to a six-week cross-
country crime spree throughout the South-
west. But what interested the Washoe and
Alameda County manhunters was the tele-
typed information that Sorce fitted the
general description of the kidnap-killer,
and carried a .25 automatic. The gun was
rushed to Reno for lab tests against the
death bullets.

However, both of these promising angles
soon fizzled out. After 12 hours of ques-
tioning, tearful Tommy Hudson finally pro-
duced his real alibi, and it proved a per-
fectly good one. At the crucial time
Wednesday afternoon, he disclosed, he had
been trying out an expensive new sports
car which he had talked a San Jose dealer
into letting him drive. Tommy had been
reluctant to tell the deputies this, because
he had told the dealer he was over 21,
and feared the lie might cost him his
driver’s license. The San Jose dealer sub-
stantiated his story, and the vastly relieved
young carpenter was sent home to Ceres.
Also on Saturday, tests in the Reno crime
lab proved the Las Vegas bandit’s gun was
not the one that had killed Larry Waters.

Now the investigation was back where
it had started, with no further suspects on
the list. The Alameda sheriff's office en-
listed the aid of Inspector Logan Page,
Oakland police sketch ‘artist, who inter-
viewed George Howard and his daughter,
and with their help drew a composite pic-
ture of the baby-faced killer. Captain
Madigan ordered 8000 circulars, bearing
the sketch and full description, printed
and distributed to law enforcement
agencies throughout the West.

The massive manhunt went doggedly on.
With the aid of California’s central crime
files at Sacramento, the Oakland investi-
gators compiled a list of baby-faced young
felons with a penchant for robbing service
stations, and one by one they were run
down and checked out. Deputies scanned
the reports of crimes whose modus oper-
andi resembled in any way that of the
interstate kidnap slaying. They pounced
on every new service station robbery
alarm.

One dormant file that came in for parti-
cular attention was the still unsolved
murder of Daryl Kelch, a 17-year-old high
school student whose nude body, shot three
times with a .25 caliber gun, was found
under a pile of rocks beside a mountain
road in Ventura County, near Los Angeles,
on November 11th, 1958. A sexual motive
was presumed in the case of young Kelch,
who had evidently been slain by a motorist
who gave him a lift. The kidnap-killing
of Larry Waters had obviously stemmed
from an armed robbery, but some other
twisted, sadistic motive could not be ruled
out in such a wanton, pointless slaying.

The Reno investigators, for their part,
quizzed a number of potential suspects,
checked out several cars, and ran down
various angles throughout the thinly popu-
lated Sagebrush State. A week after the
murder, deputies located a waitress in a
highway cafe seven miles west of Painted
Rock, who recalled serving two nervous
youths fitting the descriptions of Larry
Waters and his abductor, at about dusk on
August 26th. She remembered the flashy

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e her phone

call, the customer, a slight, thin-faced fellow not much
older than herself, was standing inside the little office while
Larry filled his tank. The young housewife paid scant at-
tention to him, though she felt rather put out when he
continued to stand just a few feet away from her while
she talked on the phone.

Larry finished filling the tank. Then the customer or-
dered a quart of oil. Larry was getting the oil when Julia
completed her call and hurried back to her house.

When George Howard returned to the station, Larry and’

the other youth were both in the office, standing just in-
side the door. “Oh, Mr. Howard,” Larry greeted his husky
boss, “would you mind taking care of the station by yourself
for a while? I have to leave for a few minutes, to go and
see about some tires.”

Big George Howard looked curiously at his young at-
tendant. Larry’s voice sounded strained, and the language
in which he phrased his request did not seem his natural
way of speaking. His eyes, as he waited for Howard’s reply,
were deadly serious, as though some fateful decision hung
in the balance.

But Larry was shy and conausnd by nature, he hadn’t
been long on the job, and his employer decided the boy
was simply embarrassed at having to ask to leave the sta-
tion. He had never done so before. Howard surmised the
young customer was a friend for whom Larry had promised
to do a favor.

“Yes, we’re going to look at some tires,” the second
youth put in. “He’s going to help me pick them out. It
won't take long.”

Howard wondered fleetingly why Waters didn’t try to
sell his friend some of their own perfectly good tires. He
supposed there must be some reason. Most likely it was a
second-hand deal. The station operator couldn’t help grin-
ning at Larry’s obvious discomfiture. “Why, sure, go ahead,
Larry,” he joked. ‘That is, if it’s all right with you. Do you
think I can handle things okay? By the way, did you finish
that lube job on the rack?”

“No, sir, not yet,” Larry almost stammered.

“Well, don’t forget we promised that for the middle of
the afternoon. You’d better go home for your lunch while
you’re out. But be sure and be back here by 2 o'clock.”

“Oh, yes, sir, ’ll be back before that. Thank you.”

George Howard went about his work and paid no further
attention as the two young fellows drove off together in
the blue sedan. He thought no more of the incident till
about half an hour later, when he opened the cash drawer
to change a $10 bill for a customer. He was startled to see
that there were no bills in the drawer, nothing but some
small change. Howard checked the tape and did some fast
figuring. There was no doubt about it. Exactly $42 was
missing.

Belatedly, Howard realized his intuition had been on the
beam. There had been something more than odd in Larry’s
behavior. He had looked scared. Now that Howard recalled
it, when he came into the office Larry had been standing
near the cash register, and during their brief conversation
he had hovered over it, glancing nervously at it a couple
of times.

Howard couldn’t imagine any legitimate reason why
Larry should have taken $42 from the till. The young at-
tendant was under instructions not to cash checks, and
anyway, there was no check in the drawer. It couldn’t
have anything to do with a tire deal. Larry would never
have taken a sum like that for any business purpose with-
out an okay from the boss.

George Howard never entertained a thought that Larry
Waters had stolen the money. He trusted his young helper
implicitly. The only conceivable explanation that came to
him, that made his heart hammer and his scalp prickle,
was a much more ominous one than petty thievery.

Hoping and praying that he might be wrong, the burly
station operator sweated it out till after 2 p.m. When that
hour passed and Larry still hadn’t returned, Howard phoned
the Waters home. Larry hadn’t been there. He called the

a
. boy’s stepfather, A. L. Waters Sr., a security guard at the

University of California’s super-secret radiation laboratory
in the nearby hills.. The elder Waters shared Howard’s
apprehension. With his concurrence, Howard called the
Alameda County. sheriff’s Livermore substation, to report
young Larry missing and feared kidnaped by a robber.

“That’s the only answer,” the missing youth’s employer
told the uniformed deputies who responded to his call in
midafternoon. “Larry Waters is a conscientious, respon-
sible kid. He’s only been working here a few weeks, but
I know his family and I trust him like my own son. He
just couldn’t have stolen that money, and he’d never dis-
appear like this, when he was due back on duty, unless
somebody was holding him against his will.”

“Then you think this fellow, this customer, held up
Larry while you were out of the station?”

“That’s it. That’s what must have happened. The fellow
must have pulled a gun on Larry. He ‘thought the kid was
alone. When he saw me coming back, he was trapped, so
he ordered Larry to dummy up-and find some excuse to
come along with him. He took Larry along as hostage,
rather than make a run for it in broad daylight, with all

| this traffic on the street.”

The deputies agreed Howard’s theory was plausible.

D. A. Raggio, Inv. Driscoll, Dep. Cole (l. to r.) heard a
shocking story from confessed slayer of the kidnaped youth

2 eg ere

tg were


3

vin hes nains: pucmige-—" vi “earns ease
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Ee sew

cutes a Convicted Killer |
CARSON; CITY; Nevada (Reuters). — A’ former mental patient who.

' killed a bus:driver-for $140. was executed Sunday by lethal injection.

~-Thomas Baal;26, was.executed a.day after the U.S. Supreme Court
voted, 5:to.4,to overturn a lower court ruling that would have delayed the
execution. Mr. Baal, who had been in and out of mental institutions for |

years, had fought attempts to postpone the execution order, saying in an

affidavit,“ believe inthe death penalty and I want the penalty to be |
af q ne AB ain ifes

ssid was convicted of fatally: stabbing a Las Vegas bus driver during a

ery jn February.1988.5%°

INTERNATIONAL
HERALD TRIGBLNE

® MoN. TUNE 4, 1990

ity . claim:
for two:reasons.:
not. set: forth: the:
Burke allegedly:
Tequired to, set,
statutory limit
: defendant’ has
, that ‘the defen’
ividual capacity:
t 691, 69'S.Ct. at’
hint ‘ices! not al
of Burke’ ‘which’
tutory authority. as
punt One is. sub-;
al of Count One
jurisdiction over
iff’s claim: ‘The
to‘amend ‘Count!
3 with reapett to

ranted ‘leave. ‘to.
re fi showing
‘son __ involved
and ‘that ne? ‘was’

pacity. -

r to sufficiently
lt in the dismis-
: of jurisdiction.

the Motion’ i

's is GRANTED’
ohnson and the
»s and Paroles.
a dismissed with

ERED that ‘the
Juné 1, 1990 to
> a § 1983 claim
-ey Burke and
to adequately

Sit agent's offi-

v. General Dynam- .

332-33, n.. 3, (9th.

enc ~ * officials
‘ities persons”
2303 SI1L.. 2-4

d 1099 (3rd -Cir.

fll.

ntiff, is inapposite .

Thomas Baal exenrteh Tlie
Nevake Sfafe frison -

BS fF 70%

CARSON Ci ty. Nevata_ . ||

BAAL ON BEHALF OF BAAL v. GODINEZ 17
Cite as 737 F.Supp. 77 (D.Nev. 1990)

amend Count One will result in the dismis-

sal of this action for lack of jurisdiction.

Edwin and Doris BAAL, on behalf of
jéThomas BAAL, Petitioners,

‘Ve

Salvadore GODINEZ, Warden of the
State of Nevada Maximum Security
Prison, Brian McKay, Attorney General
of the State of Nevada, Respondents.

No. CV-N-90-243-HDM.

United States District. Court,
D. Nevada.

May 31, 1990.

Parents of state prisoner, whose mur-
der conviction and death sentence were af-
firmed by the Nevada Supreme Court, 787
P.2d 391, sought writ of habeas corpus and
stay of execution on basis they were “next
friend’ of defendant. The District. Court,
McKibben, J., held. that. parents failed to
establish.adequate explanation of why their
son could not appear in his own behalf to
prosecute action, and therefore, failed to
establish court had jurisdiction.

Application for stay of execution de-
nied. |

Habeas Corpus <662 _

Parents of state prisoner, whose mur-
der conviction and death sentence were af-
firmed by state court, failed to establish
adequate explanation of why their son
could not appear on his own behalf to pros-
ecute habeas action, and therefore, failed
to. establish court had jurisdiction over par-

ents’ petition for writ of habeas corpus and

stay of execution.

Franny A. Forsman by N. Patrick Flana-
gan, Office of the Federal Public Defender,
Las Vegas, Nev., for petitioners.

David Sarnowski, Deputy Atty. Gen.,
Carson City, Nev., for respondents.

ORDER
McKIBBEN, District Judge.

On this date the petitioners, Edwin and
Doris Baal, filed a petition for writ of habe-
as corpus pursuant to 28 U.S.C. §:2254.
The petitioners, who are the parents. of
Thomas Baal, contend: they are: the “next
friend” of the defendant, Thomas «Baal.
The court appointed the Federal: Public De-
fender for the District of Nevada to repre-
sent the petitioners at the hearing before
the court this date. :

The court conducted a hearing on the
petition at which time the petitioners were
present and represented by N. Patrick
Flanagan, and the respondents were repre-
sented by David Sarnowski. The defen-
dant, Thomas Baal, was available to the
court through a telephonic communication
which permitted the defendant to hear the
court proceedings and permitted all those
in attendance in court to communicate with
the defendant from his location at the Ne-
vada State Prison in Carson City, Nevada.

After consideration of the pleadings and
the statements to the court and the evi-
dence presented, and being fully advised,
the court finds and determines for the rea-
sons more fully set forth by the court at
the conclusion. of the hearing, which ; rea-
sons are by reference incorporated herein
in haec verba and summarized as follows:

The petitioners. have established as. par-
ents of the defendant that they are “dedi-
cated to the best interests of the person”
(Defendant) on whose behalf they seek to
litigate. However, the court finds the peti-
tioners have failed to establish an adequate
explanation of why their son, Thomas Baal,
cannot appear on his own behalf to .prose-
cute this action under the standard estab-
lished in Whitmore v. Arkansas, —:U.S.
—, 110 S.Ct. 1717, 109 L.Ed:2d 185
(1990). This is so, as the court more fully
set forth in oral findings and conclusions


78 | 737 FEDERAL: SUPPLEMENT

from the bench, because all of the evidence
before the court, including : psychiatric
statements and testimony given in earlier
proceedings before the Nevada State
Court, establishes the defendant. is legally
competent to understand the nature and
consequences of his act and to represent
his own interests in these proceedings, with
the exception of the affidavit of Dr. Jerry
Howle. In that connection, the court finds
that affidavit to be conclusory ‘and lacking
sufficient foundation or substance ‘to war-
rant either a psychiatric hearing or addi-
tional psychiatric examinations of the de-
fendant. Such evidence is insufficient: to
warrant the relief the petitioners seek. Ev-
ans v. Bennett, 440 U.S. 1801, 1304, 99
S.Ct. 1481, 1483, 59 L.Ed.2d 756 (1979) (ap-
plication for temporary stay of execution
granted), 440 U.S. 987, 99 S.Ct. 1986, 60
L.Ed.2d 370 (1979) (application for stay de-
nied). Further, it is clear from the State-
ments and testimony of the defendant,
Thomas Baal, in state court and before this
court, that he wishes to proceed on his
own. It is further clear that he opposes
any stay and does not authorize Petitioners
to bring this writ of habeas corpus. Fur-
ther, he contests the right of the petition-
ers to request a stay of execution.

The defendant, Thomas Baal, is acting
freely and voluntarily, with a full under-
standing of the nature and consequences of
his acts. He is not acting under duress,
and he is competent to decide whether to
request a stay of execution on his own
behalf. The defendant has made a know-
ing, intelligent, and voluntary waiver of his
right to proceed. He has access to the
federal court, and he has waived that right
of access. The court finds the petitioners
have failed to adequately explain why the
defendant, Thomas Baal, cannot appear on
his own behalf in this action. The defen-
dant is competent to waive the prosecution
of this action on his own behalf.

The petitioners have failed to establish
that this court has jurisdiction to entertain
this petition. Therefore, under the authori-
ty of Gilmore v. Utah, 429 U.S. 1012, 97
S.Ct. 436, 50 L.Ed.2d 632 (1976), Whitmore
v. Arkansas, — U.S. ——, 110 S.Ct. 1717,
109 L.Ed.2d 135 (1990), Evans v. Bennett,

440 U.S. at 1301, 99 S.Ct. at: 1481, and
Lenhard v. Wolff, 603 F.2d 91, 93 (9th
Cir.1979), the petitioners’ application for
stay of execution is DENIED.

It is so ORDERED.

COMMERCIAL ENERGIES, INC.,
Lewis R. Dodds, and Kathleen
Dodds, Plaintiffs,

Vv.

Honorable Richard B. CHENEY, Secre-
tary of Defense, Donald B. Price, Secre-
tary of the Air Force, Herman A. Pe-
guese, United States Air Force, Chief,
Contract Support Division, and Timo-
thy Gavle, Contracting Officer, Defen-
dants.

Civ. A. No. 90-F-369.

United States District Court,
D. Colorado.

April 2, 1990.

Small disadvantaged business concern
brought action challenging manner in
which Air Force applied 10% preference in
relation to contract for purchase of natural
gas. On motion to dismiss and/or for
transfer, the District Court, Sherman G.
Finesilver, Chief Judge, held that exclusive
jurisdiction over preaward contract dispute
lay in Claims Court.

Dismissed.

1. Statutes €=217.4 |

_ It is both unnecessary and improper to
resort to legislative history to divine con-
gressional intent when meaning of statute
is clear.

2. Federal Courts ¢-1139
Exclusive jurisdiction over..preaward

government contract dispute lay in the
Claims Court. 28 U.S.C.A. § 1491(a)3).

Gregory
plaintiffs.
_ James \
Denver, C

SHERM
Judge.

THIS M
on defend:
for Transf
United Sta
Sive jurisdi
to 28 U.S.

preference
§ 219.7001
lows:

Each rest
from SDE
the purpo
a factor
applied o1
or to any
award ma
vided by |
48 C.F.R. §

‘ In their cc
the Air For
ence in an
might result
to another b
rary restrair
manent injt
from award
court orders
ply with the

tee,

. . ae ‘
6—San Moteo THE TIMES Monday, Oct. 22, 1979 kkk

(Continued from Page 1).

before. But'he seemed fascinated as
he watched through a side window
on his right as prison officials went
through their routine. ‘

He ‘turned his head to the left

‘looking down at the floor, where the

deadly fumes would rise from. Then
he scanned the witnesses who faced

him. When he saw his friend Mike -

Donahue, a Las Vegas newsman,

. Bishop nodded and wagged his fin-

ger. The meaning of the finger
movement was lost on Donahue.

‘In another room three. guards
pulled identical switches, one of
which sent the pellets into the sul-
furic acid. There was a loud bang

from the machinery and the gas.

started to be rise. .
When he got his first whiff, Bishop

squinted and shrugged a smile,

almost as if to say, ‘This isn’t so

bad."?.As more fumes rose, his body -

shivered, his breathing became
rapid and heavy.

His head arched back towards the

" He had gone through a practice run ‘ ceiling, as if trying to. escape the

pungent odor. He eyes rolled
upward.

The head then slumped towards
the chest and rose again. This time
Bishop's mouth was slightly open
and his eyes slowly closed. Again
the head fell toward the chest.

It appeared Bishop, now uncon-
scious, was fighting to hold his head
high but he never made it. There
were little twitches of the head and
an occasional chest shudder. His
pants were wet in front. His hands
hung loosely off the chair.

- His body remained motionless but

_ it was several minutes before

Bishop was pronounced dead.

During the whole execution, most
of the newsmen furiously wrote

- notes at nig movement of Bish-
e

op's body. The two businessmen
from Reno and Gardnerville, who
were never identified, silently

watched the drama unfold. They ,

HMB festival

(Continued from Page 1)

about..." went the song. The crowd
agreed.

The festival crowd devoured thou-
sands of pumpkin crepes, took home
hundreds of loaves of pumpkin bread
and ate pumpkin pie like New Eng-
landers. Six different booths and
other outlets sold out their pumpkin
pies.

Then they bought pumpkin recipe
books. Kids blossomed out in new
pumpkin T-shirts..And everywhere,
pumpkin tote bags appeared.

_ Overhead, a huge pumpkin bal-
loon, filled poet pingtooy sa
happily. a big smile on its pumpkin
og Vaile aboot it zoomed a heli-
copter, getting the crowd higher
than ever.

Artists had a good day. Every-
thing was selling and the crowd
thronged around pottery, wood:
crafts, photographs, hand-made clo-

thing, glass, metalwork anda
ie

variety of oil and watercolor paint-
ings.

It was fair time. Clowns and jug-
glers moved about, followed by
packs of children. Many carried

- pumpkin balloons.

Children competed in pumpkin-
carving contests and set new
records, or so it seemed, in downing
pumpkin pies in contests. The con-
test spirit was contagious. The art-
ists themselves, competed in a
pumpkin-decorating contest.

Adults outdid the kids in the
pumpkin pie-eating contest. While
usually nobudy finishes a whole pie
in the contest, on Sunday there were
two who made It.

Frank Nellis of Santa Clara
gulped down an entire pie in two
minutes and 10 seconds. Right
behind him, missing victory by only
15 seconds but a. a clean
plate, was Richard Stahl, no
address.

” the witness room were open, letting

Jesse Bishop goes to gas chamber

When the execution was com-
pleted, most of us quickly signed the
death affadivit and then scrambled
for the phones to call in our stories
to catch the late deadlines.

never tafked to fellow witnesses
once. ° -
The guards, stationed in. the wit- .
ness room, seldom looked at Bishop,
instead focusing on the newsmen
and others who were about 6 feet
from the gas chamber. .
Before the execution, Dr. Richard
Grundy, the examining physician,
advised the execution could be dan-
gerous for the witnesses also. He
said the equipment noises should be

disregarded. But if the poison gas Veterans Day

should escape, “‘hold your breath ... Burlingame City Hall was closed
stop breathing ... do not take a deep y ny observance of Veterans
breath."’ He said the guards vend Day, which will be observed by most

Burlingame -

lead the group out of the lock Americans Nov. 11

chamber if an emergency occurred... oe :

“I'll club the first person who pan- San Mateo County offices, and

ics,” quipped Grundy. - _.+_ those of other city halls, were open
At the last execution’in 1961, was today.

also a witness. I thought I smelled Pitan i ee Sais ay
as then but apparently it was onl observe the holiday today, a date to

g tg ie y which the Veteran's Day holiday had

my imagination. :
This time however the windows in once been switched by government
order, because it is more convenient

in the cool night air and an exhaust than the Novermber date.

- fam whirled away in the corner — |

two things that were absent 18 years
ago.

Nevada $15;000 to $20 most of it

The execution is going to cost Real estate brokers

for overtime for the guards who SAN FRANCISCO (AP) Costa coun
were out in full force. The witnesses — The Internal Revenue expanded t
athered two hours before at the Service is investigating meda, San
Northern Nevada Correction Center real estate agents and bro- Sacramento
some 5 miles from the century-old kers in five Northern Cali- said.
maximum-security prison where the fornia counties for the
execution took place. possibility that they pock- :

There was a ban on cameras, tape eted large commissions Singet

recorders and weapons, we were
told. We were all run through metal
detectors to make sure we did not

without reporting them as
income.

Fred Sleet, chief of the

not gu

have any contraband. But the detec-
tor malfunctioned and everyone was San Francisco IRS criminal = MANHA:
passed without a thorough search. _Investigation division, said (UPI) — I
We were also told we were not real estate professionals in Thomas, lea
required to identify ourselves to the Northern California are not rock group
other news media who waited out- complying with IRS regula- and Tears,
side the prison, But afterwards, tions governing tax filing. — innocent to «
several newspersons, went out for An investigation that 21-year-old
began in Marin and Contra face.

interviews.

has

GENERAL APPLIANCE
AOth ANNIVERSARY
SALE |

KITCHEN AID JOINS US IN

en oe ee ae ee a ~~ oe me

What does

mean


Rr

<A Anat Aleman ate.

:

rettdehinemesamen te ee

by GARY SHEPHERD -

LAS VEGAS, NEVADA, DEC. 22, 1977
@The plush casinos and hotels that line the
Las Vegas Strip were built by losing
gamblers. Every night a fortune is won or
lost in the bright casinos. Normally it is
won by the house and lost by the
customer. Even the winning customer
will eventually be a loser. He'll return
another night and lose back his winnings.

That's the way it is in Las Vegas.

But to get the folks to come inside and
gamble away their money, the casinos
have to offer something appealing. Some

36

places have 50 cent bar drinks. Some have

coupons entitling the bearer to a free _

drink.
All offer free drinks to persons who are

gambling, even if they are only playing a

‘nickel slot machine.

Some casinos, such as the Royal Inn,
offer gourmet meals in gourmet at-
mosphere for coffee shop prices. A prime
rib dinner, with all the trimmings, is just
$4.95 at the Royal Inn.

Even the plushest of Strip casinos offer
99 cent breakfasts in their coffee shops.

It’s all done to bring in customers in the
hope the smell of the tables will bring on
gambling fever. After all, what’s wrong
with giving away a drink to someone who

Oo
Bride-and groom visited this
motel because if offered free
champagne... Minutes tater,
groom was murdered.

© divorce capital of the world, is the
capital. There is no blood test
and there is no waiting period.
e licenses can be purchased 24
a day, seven days a week.

might drop a few hundred dollars #
nearest blackjack table? What's #?**
with serving a — for pee 6
cents if the man who consum
goes into the casino afterwards ony
his bankroll at a craps table?

Then there was the E] Morocc® enough to bring the woman he lov-
in the heart of the Strip, across cee * Las Vegas for an,inexpensive, yet
from the Stardust Hotel and just * ej wedding. To make what money
the Sahara Hotel. The El last a little longer, he cut corners
offered free champagne oe be could.
entered. ; os : § Customary to toast the bride with

David Ballard, 22, of Baltimore wih gne. Ballard found the best possi-
Las Vegas on December 20 for # we te bin, to do it, on his budget, was in
special reason. He — fe 3 Morocco where champagne is free.
sweetheart, Katherine, to Las be = “sino was comfottable and plea-
marry her. Las V egas, in addition ‘ © was happiness inside in the

d didn’t have much money, but :

David Ballard had taken his bride to glamorous

Las Vegas to celebrate their marriage. As they toasted each
. other with champagne, tragedy struck. The holdup man

3 ’ who fired so ruthlessly then went ona kidnapping spree that
} . terrorized the desert resort, and detectives knew they

' had to catch the desperado before panic paralyzed the city

pre-holiday spirit. The sounds of slot
machine handles being pulled and coins
clattering into the trays of the one-armed
bandits that were being played by
winners blended with the chants of the
craps dealers.

The shuffling of cards at the blackjack
tables and the cries of delight by those be-
ing dealt winning hands became a buzz
and a blur‘to David and Katherine
Ballard, who were drinking champagne
to celebrate their first hour of wedded
bliss.

Yes, it was a happy couple in a happy
casino.

But the sounds of happiness were
broken-sharply by the screams of one of

Wig (left) was worn by would-be
robber. It came off during struggle
and was taken by police as evidence.

in his desperate bid to get away.

Money lies on floor of casino cage.
It had been missed by robber-killer

—e4

eo)
5.
Co
rat)
the casino cashiers, Casey Crawley. The*$
woman screamed for help because aman
wearing a bushy wig was pointing a gun
through the cashier’s cage, demanding®
money.

“What's the matter, Casey?” Pit Boss
Larry Thompson yelled from his sports
behind a row of blackjack tables.

“We're being robbed,” the woman
shouted back, her voice laced withg
hysteria. :

Thompson's eyes jumped to the man
with the wig. The pit boss did not see the
gun so he made a dash for the would-be
robber.

“He's got a gun! Look out, Larry!”
screamed change girl Suzie Martin; who,

37


+ Son Mateo (CA) Times.

“Jaiesday /0-27-79

Death Row confession — Bishop admitte

LAS VEGAS, Nev. (UPI) — A
Nevada judge and a Las Vegas pol-
ice detective granted Jesse Bishop's
request not to divulge he admitted
killing as many as 18 other people.

Bishop died in the gas chamber
shortly after midnight Monday.

‘ In d Death Row confession,
Bishop first told District Judge Paul
Goldman and later homicide detec-
tive Chuck Lee he had killed 17 or 18
others in addition to the crime that
sent him to his death, the murder of
David Ballard of Baltimore, Md.,

during a casino robbery two years”

ago.
Using a combination of sawed-off
‘shotguns and .45 caliber and 9mm
automatic pistols, Bishop worked as
a paid killer for drug runners from
1954 until his last arrest. Twelve of

the slayings occurred in Southern -

California, five or six took place
elsewhere, either in Midwest or
Northeast states. %

“The only one he felt bad about
was the last one,” Lee told report-
ers Monday.

Lee said Bishop coolly and calmly
discussed the killings, offering few
details but convincing the detective

Carolands case

Legal action in the dispute over
ownership of the Carolands Chateau
in Hillsborough fas been continued
until Nov. 7.

San Mateo County Superior Court
Judge Alan Haverty ordered the
continuance this morning after an
attorney for Roz Franks, current
tenant of the property, announced
that he would file a petition for vol-
untary conservatorship of the man-
sion on behalf of Mrs. Franks’ son,
Zachary.

that hée was telling the truth.

In a rare instance. of giving some
detail, Lee said Bishop described
how he lay in wait in the back seat
of an automobile for one of his vic-
tims, then ‘‘blew his head’’ off when
the man got in the car.

In return for the killings, Bishop
received money, drugs and other
favors. He once collected $10,000 for
one murder. ;

Part of his payment was in drugs,
which he used to feed a habit
acquired during treatment for war
wounds.: Bishop was a decorated
paratrooper veteran of the Korean
war.

‘Lee released the transcript of his
conversations
Excerpts:

‘You know, they say, uh, Billy the
Kid put notches on his gun. I never
did that, you know.

““T, uh, this killing in Las Vegas is
the first person I've killed that I
considered an innocent victim. The
punks, you know, they deserved it....

“‘There’s some people that know’d
me that said I got my own private
graveyard.

“I've never counted them all. I’ve

continued

The legal battles over the historic
chateau began shortly after Mrs.
Franks signed a deed of trust trans-
ferring title in the house to San
Francisco real estate developer
George Benny last May.

Mrs. Franks has since denied any
intent to sell the property, and
claimed she didn't realize what she
was signing.

Further motions in the case wi!l
be heard on Nov. 7.

Public meeting, Wednesday,

Justice, Redwood City.
AGENDA

SAN MATEO COUNTY
TRANSIT DISTRICT

ct. 24, 1979,
7:30 p.m., Supervisors Chambers, Hall of

Agenda includes proposed salo of 13 used buses; lease
of additional space at district's South Maintenance Baso.
Agenda material available at the Transit District
Office, 400 8. El Camino, San Mateo

i aenm nw oka

aa!

with Bishop.

ces ee enemas ne mene ee pees ome

never really kept track. They (kill-
ings) were drug-related, criminal-
related or informants or rats. I don’t
particularly have any guilty feelings
about them because I thought I was

alight in what I was doing.”

Bishop admitted his toll of victims

was high. ~

“There's some people that know'd
me that said I got my own private

graveyard.

ordered killed, Bishop said in one
instance, ‘‘I killed a man that got

into a drug deal for a whole lot of’

money and out front. He was getting
drugs out front and got into him for
quite a bit of money and whatever
he did with the money I_have no
idea. But he didn’t pay the man."’
Bishop said he was proud of the
code of silence he maintained about
his fellow criminals. He divulged

“They were all criminals, let’ hing that could be traced to oth-
put it that way. They were ely ers, Lee said. Bishop said in the

I. would say who did somebdgy

wrong in a drug deal.”

Bishop said some were buried in
the desert, many had never been

found. :

police interview:

. “You notice in my record, every

time I been arrested I went to prison
and I never took nobody with me.
And when I go to that gas chamber,

As for reasons persons were everything I know is going in that

Czechs ignore protests o

PRAGUE, Czechoslovakia (UPI)
— Authorities ignored protests from
the United States and Western
Europe today and pushed ahead with
one of the biggest political show
trials in the Communist bloc since
the Stalinist era.

The trial of six prominent signers
of the Charter 77 human rights
manifesto entered its second day
tuday with the four men and two
women charged with ‘subversion of
the state abetted by a foreign
agent’’ — identified as the CIA.

The six, arrested in simultaneous
police raids May 29, face sentences
of between two and 10 years in

rison. The verdicts are expected

hursday.

When the trial began Monday, a
tight chain of security guards barred
diplomats from the United States,
Britain, Canada, West Germany,
Holland and Italy, journalists and a
representative of Amnesty Interna-

tional from the courtroom.

The opening of the trial sparked
protests from the governments of
many Western European nations,
the head of the European Parlia-
ment and the Communist parties of
France and Italy.

A trial of such a large group of
political dissidents has not been seen
in the Communist world since the
purges of the Stalinist years.

In Washington, a State Depart-
ment spokesman said Monday, “We
deplore the arrest of this group and
their trial for exercising their legiti-
mate human rights. "’

The spokesman said the United
States has expressed its concern
about the trial directly to the gov-
ernment of Czechoslovakia, most
recently last week in diplomatic
contact.

“We understand four or five other
persons will also be brought to
trial” in Czechoslovakia on similar

| on I Rasim” ~ ) ir

pt track. They (kill-
ig-related, criminal-
nants or rats. I don’t
‘e any guilty feelings
ause I thought I was
was doing.”

ed his toll of victims

e people that know'd
got my own private

all criminals, let's
They were criminals
rho did somebody
deal.”

ome were buried in

ny had never been

ns persons’ were

is ignore protests of rights leaders’ trial

‘choslovakia (UPI)
‘ored: protests from
tes and Western
pushed ahead with
est political show
imunist bloc since

prominent signers
77 human rights
d its second day
our men and two
‘ith ‘‘subversion of
ed by a foreign
‘das the CIA.

‘d in simultaneous
29, face sentences
and 10 years in
icts are expected

begun Monday, a
rity guards barred
he United States
West Germany,
Journalists and a
Amnesty Interna-

ordered killed, Bishop said in one
instance, ‘‘I killed a man that got
into a drug deal fot a whole lot of
money and out front. He was getting
drugs out front and got into him for
quite a bit of money and whatever
he did with the money I have no
idea. But he didn’t pay the man."
Bishop said he was proud of the
code of. silence he maintained about
his fellow criminals. He divulged
nothing that could be traced to oth-

‘ers, Lee said. Bishop said in the

police interview:

“You notice in my record, every
time I been arrested I went to prison
and I never tqok nobody with me.
‘And when I go to that gas chamber,
everything I know is going in that

tional from the courtroom.

The opening of the trial sparked
protests from the governments of
many Western European nations,
the head of the European Parlia-
ment and the Communist parties of
France and Italy.

A trial of such a large group of
political dissidents has not been seen
in the Communist, world since the
purges of the Stalinist years.

In Washington, a State Depart-
ment spokesman said Monday, '‘We
deplore the arrest of this group and
their trial for exercising their legiti-
mate human rights."

The spokesman said the United
States has expressed its concern
about the trial directly to the gov-
ernment of Czechoslovakia, most
recently last week in diplomatic
contact.

“We understand four or five other
persons will also be brought to
trial’’ in Czechoslovakia on similar

Jan Nafec (CA) TIM,e S$

Tuesday, Oct 23

1979

NEO Nah OPO ROE: Nd I Lo cib Ot

4

‘|

« @@

THE TIMES San Moteo —3°

gas chamber with me, too.

“I've, uh, I've had some offers —
I've had some offers to write some
books that would have been some
goodies and you can make some
money off it. But the money doesn't
mean as much to me as my word
and my reputation."

Bishop said he ‘‘believed”’ in citi-
zens who testified at criminal trials.
“But if he’s a criminal and got
busted and has a pial on against him
and makes a deal for leniency or the
charges to be dropped if he'l testify
against the other man and send the
other man to prison, now we're talk-
ing about something else.

‘And my honest belief (is) the
man should be killed. See, because

charges, the spokesman said.

More than 100 fellow dissidents
gathered outside the courthouse,
under the scrutiny of plainclothes-
men, to show their solidarity with
the accused.

The defendants include Czechoslo-
vakia's most noted playwright
Vaclav Havel, 43, Jiri Deinstbier,
before 1968 the nation’s most popu-
lar radio broadcaster, Peter Uhl, 39,
an economist and Vaclav Benda, 33

The women are Dana Nemcova,
46, a psychologist and Otta Bedna-
rova, 52, a former television journal-
ist who until her arrest was working
as a cleaning woman.

Only close relatives of the defend-
ants were allowed to attend the pro-
ceedings but were threatened with
prosecution if they revealed details
of the "secret" trial to those stand-
ing vigil outside.

Anna Uhl, wife of defendant Uhl
and the daughter of jailed Charter 77

= Bishop admitted 18 killings. :

he knew what he was doing was.

illegal and he knew the chances of .
getting caught and he knew what the -
penalty was when he got caught, and -

he should have kept his mouth shut
and went to prison and did his
time.” :

When such an inthvidual was tar- °

geted for killing by Bishop, ‘'l
totally honestly felt that I was doing
the right thing — that I was killing a

man that 100 percent to be ‘
killed.
“I have no sorroMs, uh, at the’

end, about it. I wish I could kill.
There's hundreds of rats in this

country that sent men to prison and.

I only wish I could have killed all of.

them.”

activist Jaroslov Sabata, was
dragged from the courtroom shortly

. after the trial began when she ins-

isted on taking notes of the proceed-

ings. Dissident sources said she and '

the unidentified wife of another
defendant have been placed under
arrest.

Under the indictment, the six,
who pleaded not guilty, were
charged with membership in an ille-
gal organization -
subgroup ‘Committee for the
Defense of the ranatty Prose-
cuted.” They were a

maintaining illegal contacts

the Charter 77.

so accused of ;

with

various international organizations’

and with accepting funds from for-
CIE agents.

Defense sources said the indict-
ment referred to articles the defend-
ants smuggled to exile publications

Newspapers and magazines the
government charges are financed by
the CIA,



Athenee Brown, in opening his

- | here he went
| bough
hack

all appeared Blackwel}

four times in the legs,
made his get-away by runnii
down an alley. He then ‘stole

reformatory
te x3
as §

‘argument said that malice afore- | 5°
thought and murder already had| 2nd

been| confessed by Blackwell in

ng his plea of guilty, but he

ist-| COntended it was murder in the
degree. He argued that the

t did not know Geach and

any wilful
medi


,

July 29, 1984 personal visit

A 32-year-old patrolman assigned as an undercover
detective with the Reno, Nevada, Police Department was —__.
stabbed to death during-a narcotics operation. The officer,
Supplied with marked money, made arrangements to buy drugs.

' As surveillance units monitored their activity, the unarmed
officer picked up subject shortly after midnight and the two
drove to another location where the substance was supposedly
hidden. However, due to equipment difficulty, surveillance
officers were unable to monitor any conversation from this
point. Reportedly the exchange was taking place when the
20-year-old male subject, along with one 16-year-old and two
18-year-old males who had been hiding at the scene, allegedly
attacked the officer. In the ensuing struggle with his
assailants, the victim, who had 7 years of law enforcement
experience, was stabbed in the chest, abdomen, and back.

Two of the subjects allegedly took the money from the officer
2 whose body was transported to another site and buried. All >
four were sopesccont ty arrested and charged with murder, py
kidnapping, and robbery. Two other 20-year-old males were

,4 also arrested as accessories since they allegedly helped
some of the subjects escape. Three knives, the apparent
murder weapons, were recovered in connection with this case.

June Detective James Hoff, age 32, 7 years on dept

- 43-

Nov 8, 1907, Off. Charles L. Brown, b

‘ a ,» born Nov 26, 18/72, on dept si

oi tica cat handgun, subjects involved im prior crime ena bo ark one sunt +
; others arrested. Ages 22-24-20-17. Prior criminal record cow :

November 8, 1947 Captain Joseph L. Geach age 56, 12 yrs on dept and Sgt Allen A

Glass, age 36, 4 yrs on dept
pt, armed robbery, handgun (.38
were escapees from prison, wanted on numerous Minees oe ose, Secs

January 19, 1969, Auxiliary Officer Michael J. Mills, age 24, traffic assist
’

struck by car, driver charged with DUI i

; : reckless driving and f i

oer oe age 21, final disposition unknonw. Note: Notincluded in tine fimtber
records for 1969-I include as homicide incident 6 Ae

4 hours, plus $3.40 copies

Sya-g cy TO AY OX fro


ee

BLACKWELL,

OUNG DAVE BLACKWELL moved slowly, even
lazily, among the neck-high corn stalks, picking a
golden ear here and another there and tossing them
| into a basket. Outwardly, his actions indicated utter

boredom. But inwardly Blackwell throbbed. The chance
for which he had been waiting for months—escape—was
at hand.

As he neared the end of the cornfield, his heart
thumped faster. Thirty feet to go. Twenty. Fifteen.
Now! Bent over, Blackwell scampered through the
fence and into the adjoining woods like an agile football
quarterback pulling a fast sneak play. Behind him a
taut strand of barbed-wire vibrated. On it hung threads
snapped from his blue denim Washington State Re-
formatory garb.

Back in the cornfield, other trusty prisoners with
whom Blackwell had been working kept on picking corn.
The guard of the work party was looking the other way
when Blackwell made his dash, and for 15 minutes his
disappearance wen‘ unnoticed. Then the guard detected

David L., wh, gassed NV@ (Washoe) April 22, 1649

David L. Blackwell lies in a coma
after his last duel with the ceps. He

reeevered, faced murder charge. ey

his absence and blew two blasts on his alarm whistle. |

But by now crafty David L. (Blackie) Blackwell, who
came from a “good” Tacoma, Washington, family, was
beyond catching and off on one of the most daring and
ruthless sprees of crime ever recorded in the West.

The fall sun began to settle behind the coastal moun-
tains of northwestern Washington as the 22-year-old
youth picked his way through the thick woods that
afternoon of October 13, 1947. In the distance he could
hear the baying of several bloodhounds that led a group
of nearly 50 guards and sheriff’s officers in pursuit.

-At the bay of the hounds, Blackwell headed for the
Snohomish River, which courses through the rich farm
and wood lands surrounding the town of Monroe, Wash-
ington, where the state reformatory is situated. Cross-
ing a road, he spotted a hunter’s parked car and ap-
proached it, but was unable to get the motor running.
A loaded rifle lay in the seat. Hastily, he picked up the
weapon and kept on for the river.

Reaching the Snohomish, Blackie crept along its west-

REAL DETECTIVE, December, 1948


something like that. I don’t remember
the third fellow,”

“I think his name was Arnie,” An-
drews said.

“No last names?” :

“No.”

Hanlon said: “I don’t know whether
Buffalo could get us anything with just
first names.”

“We'll try later if we can’t get any-
thing better,” Powell decided. “Okay,
what happened next?”

“We just drove along. The driver
had a bottle and he Passed it around.
He was real nice. Then, when we got
to Victorville, these other two fellows
were standing beside the Toad. He
slowed down and the guys in the back
seat told him not to pick up anybody
else because we already had enough
in the car.

“But the driver said he didn’t like
to pass up anybody trying to get a ride.

-He said he’d done plenty of hitch-hik-
ing when he was a kid and he felt sorry
for anybody trying to get a ride. So
he : pped and the new ones got in the
back.”

“How about names for them?”

The boys hadn’t heard any names
for these two, however.

TREY drove on until they reached

Barstow. There the driver stopped
and bought them the hamburgers, cof-
fee and cigarets,

“When he got back in the car, the
driver said he was tired and asked me
if I could drive,” Andrews went on. “
told him I could, so he climbed in the
back seat and two of them in back
came up front with us. I guess he went
to sleep because pretty soon this older
fellow in the back pulled out a gun and
Started talking about robbing him.”

Cockrell took up the story. “We
were all just whispering. We tried to
argue with him. We said the fellow had
been nice and it would be a lousy trick
to rob him after he gave us a ride and
bought us hamburgers and smokes.”

“What kind of a gun was it?”

“I don’t know. A revolver, I guess,”
Cockrell answered. FS

Andrews said: “We argued for
awhile and then the man with the gun
said he was going to kill him. He said
we could take the car and drive right
on through to New York. That’s when
Jim and I got real scared.”

A the driver slept through all of
this?”

“Yeah, I guess maybe he'd had a lot
to drink. The others—the three who
were in the car first—they didn’t go
for killing the driver either. They kept
arguing and then the one with the gun

d me to stop the car. He said he
was going to do it right there. I didn’t
stop and he said if I didn’t he’d put a
slug in my head.”

“What did you do?” ,

“I was scared stiff,” Andrews said.
“But I figured as long as I was driving

-he wouldn’t shoot me, so. I stepped on

the gas and went faster. He cussed me
out and then the driver woke up. No-
body said anything for awhile.”

Cockrell added: “After we hit the
city limits Daryl had to slow down and
I was afraid that one with the gun
would start something, so I whispered
to Daryl to stop the car and we’d get
out.”

“Where was this?”

“About ten or twelve blocks from
where we found the cops.”

“What happened when you left the
car?”

“I don’t know. We beat it. The car
started up again, but neither of us
could see who was driving. Anyhow,
Daryl and me ran up the street as fast
as we could, looking for someplace to
telephone the cops, and then Daryl] saw
the prowler car in the drive-in,”

“Are you sure the fellow with the
gun intended to rob the driver?” Bell
asked.

“Mister, he wasn’t only going to rob
him. He was going to kill him,” An-
drews said. “Kill him and take the car
to New York,” :

“Maybe after they hit town, he didn’t
get a chance,” Bell said hopefully.

But how could the officers find out?

How be sure?

“The only way is to find out who the

16

—_—

driver is,” Hanlon said. “And look up
hia brother-in-law,"

Powell walked over to the radio room
and spoke to the operator, Louis Fos-
tarini. “Have you heard anything on
that Buick yet?” «

Fostarini shook his head. “The High-
way Patrol is watching. If it Sticks to
by main highways, they should pick
t up.”

Two through highways intersect at
Las Vegas as well as a number of sec-
ondary roads. All of them were covered
now; however, more than a half hour
had gone by. The Buick might have
slipped through. .

Back in the office, Powell shook a cig-
aret from a Package and dragged
at it impatiently. He felt that some-
thing definite should be done. But
what? \
He faced the youths.*“Did the driver
buy gas anywhere en route?”
“Yeah. While we were eating in Bar-
Iw.”

"If You Got No Witness," the

only question in whether the man with
the gun went through with it.

“If he did, and tossed the body out
on the desert, they could be a thousand
miles away before we can even find out
who was killed.”

“I know,” Powell replied, “And if they
abandon the car in.some big city we
may never catch up with them. That’s
why we’ve got to find out who owned
the car and what the license number
is.”

The clock on the radio-room wall
showed five minutes to one. Hanlon
looked at it. “He’s either safely where
he was going, or dead by this time.”

At THAT moment Patrolmen M. C.
Boyce and Ray Humphreys were

in a drug store at the'corner of Fif-
teenth Avenue and Fremont Street in
Las Vegas. The Proprietor had locked
up the safe and was about to turn out
the lights. The front door was flung
open and a hatless youth rushed inside.
“Where’s the telephone?” he shouted.

Ex-Con Said, "They Can't Pin
Nothing on You. From Here on
We're Going to Stick Up a Lot
Of People, All the Way to New

York, and We're

Going to Kill

Every One of Them, See? And

We're Going to

Start It Right

Now, on This Fellow"

“Did he pay cash for it or use a
credit card?”

They didn’t know.

“Did you notice what kind of a sta-
tion it was?”

“Just some pumps in front of the res-
taurant, on this side of the town.”

“If he used a credit card,” Powell told
the other Officers, “we might get the
name and license number. Then we
could call Los Angeles and find out who
he was coming to see here. That way,
we'd know whether he arrived.”

He went to the radio room again and
asked Fostarini to raise Barstow. After-
some time, the town marshal answered,
and Powell explained the situation,

“The place they. stopped at sounds
like the Top Spot,” the marshal said.
“Ernie Phelps runs it. But he closes at
midnight; he’s gone home by now.”

“Get ahold of him,” Powell urged.
“Find out if a fellow in a new Buick
used a credit card when he. gassed up.
He'll probably remember the car be-
cause seven young fellows and the
driver were in it. The driver bought
hamburgers for all of them.”

“Tl call you back.”

Hanlon entered the radio room. “
you think we could get anything by
calling Los Angeles?” : .

-“Not until we can give them some-
thing to go on.”

After a pause, Hanlon went on,
“Maybe those kids just cooked up that
story.”

“No. I think it’s on the level. The

Pointing, the Proprietor asked,
“What’s your hurry?”

“I got to call the cops.”

And then he noticed Boyce and Hum-
Phreys. “You cops?”

“Yes. What’s your trouble?”

“We just saw a man get killed!
Shot!”

Both officers leaped to their feet.
“Where?”

“Out on the highway.”

“What highway?” Boyce asked.

“I don’t know. Out on the road .

someplace. Hurry up or the killer will
get away!”

“Where is he now?”

“We left him and another fellow in
& motel. You'd better hurry or they'll
be gone.”

“Where is the motel?”

“It’s in the next town down the road.
Come on and I'll show you.”

But on something like this, Boyce
and Humphreys had to notify Head-
quarters first. Boyce called in.

Powell and Hanlon were still in the
radio room,

Powell took the call. “Ask them if
the man who was killed was driving a
Buick,” Powell said.

There was a pause. “Yes, he had a
Buick, all right. I don’t know what this
is all about, but these kids insist some-
one was shot.”

“We know what it’s all about,” Powell
replied, “Wait there and we'll be right

Three young men and the two patrol-

men were wailing when Powell an
Hanlon arrived from Headquarter:
—— with them Andrews and Cock
rell.

These three were the youths Andrew
and Cockrell had mentioned as bein
from Buffalo. They gave their name
as Joseph Juszczak, Arnold Cole an
Boleslaus Malski.

“He shot him right through th:
head,” Juszczak said. “It was awful
Right through the head.”

“Where is the killer now?”

“We left him and his Pal in a motel
We sneaked off in the dead guy’;
Buick,”

“Take us to that motel,” Bell said.

Juszezak drove off in a black Buick

“They're in that cabin with the light
on,” Juszezak said, “He’s got a gun;

SLOWLy, Powell, Hanlon and Bell
edged up to the cabin.

The only door was in front.

“Watch the windows,” Bell whispered.

Then he yelled, “ ome on out!
We've got you covered!”

But no one answered.

“Come out or we'll shoot!”

Still no answer,

Bell kicked the door open, his gun
ready,

No one was inside.

The officers went back to the three
youths in the Buick,

“All right,” Hanlon said, “tell us the
whole story and be quick about it.”

Cole answered. “Well, the fellow who
owns this car gave us a ride.”

“We know ‘about that. What hap-
pened after these two kids got out-of
the car in Las Vegas?”

“The owner took the wheel and
drove into town and told us that was
as far as he was going and we should
get out. Then this Screwball in back
Pulled out his gun. He ordered the
man to keep driving,”

“What did you fellows do?” ;

“What could we do? He said he'd kill

he was really going to kill anybody; I
figured he was just going to rob him.”

“Then what?”

“The man said it was a dirty trick to
pull after he had given us a ride but
the guy with the gun made him drive
out of town.”

“Which way?”

“I don’t know. It wasn’t on this
road.”

Malski spoke up: “It was on a road
with some high-power electric wires
running beside it,”

“That could be out toward Hender-
son. How far from town was it?”

“Maybe six or eight miles,”

“Could you find the Place?”

“I don’t know. It was dark and
sandy. Everyplace sort of looks alike
around here.” ‘

“Then what happened?”

Malski went on: “He forced the fel-
low to stop and get out and he took the
fellow’s money, only thirty-one dollars.
Then he told him to walk out in the
desert because he was going to kill him.”

“And you fellows didn’t do any-
thing?” Hanlon asked.

** THEY were here in the motel when
we left.”

Hanlon radioed Fostarini at Head-
quarters. “Put out another alarm,” he
said. “We've located the Buick and the
fellow who owned it has been killed.
The killer is in a leather jacket and
he's with a youth in a white sweat shirt.
They may be hitch-hiking again, or
they may have stolen another car. We
have to find those two!”

While Hanlon was talking on the
radio, Detective Powell got the rest
of the storv from the frightened boys.

(Continued on Page 54)


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wets

It’s got to be. It’s the only possible one
I can think of. Find the persons in-
volved in the triangle and you have the
basis for the crime.”

“Okay,” and Stanioch sighed. “I’m
beginning to fee] like a private investi-
gator working up a divorce case. But
let’s go. Wha do we talk to first?”

“T’ve got a theory on that, too. Gor-
lick was a pretty. good friend of both
Mister and Mrs. Plumlee. If anyone
knows what was going on, he’d know.”

“Yeah, and we talked to him before.
He won’t say anything, even if he knows
it: I think he’s got some crazy idea
that he is protecting his friends.”

Greenwood said: “I think I know
how we can get around that. We'll pre-
tend that we suspect him. In self-de-
fense, he ought to come out with what-
ever he knows.”

“Could be,” Stanioch replied. “I’m
ready for anything. This thing is driv-
ing me crazy.”

Gorlick was in his garage when
Greenwood and Stanioch called on
him. He pulled himself out from un-
der a car and wiped his hands on some
waste.

“We've come to talk to you about
Plumlee again,” Greenwood told him.

“J don’t know any more than I’ve al-
ready told you. Plumlee was a swell
guy. I don’t know who could have
killed him. And I think you aré all
wet thinking he had another woman
on the string.”

“Maybe,” Greenwood said unhur-
riedly. ‘“‘But we’ve dug up a few things.

Remember; I asked you about the time
you went to the dance with them?
Well, somebody at the dance saw two
people in Plumlee’s car?”

“Yes?”

“We've got a pretty good idea who

' they were.”

“You think—”

“We think plenty,” Stanioch said
tightly. “You were in the Club when
Hugh Plumlee came in and you were
there when he died.”

“Look!”’ Gorlick cried. “I didn’t kill
him. Maybe Ruth did—I’ll admit I
was nuts to ever get mixed up in it but
I’m telling you straight, I didn’t kill
Hugh. I liked the guy. I*even told
Ruth I liked him and that’s what made
it tough.”

“Ruth who?” Stanioch asked.

“Ruth Plumlee. Hugh’s wife.”

“You may as well start at the begin-
ning,” Greenwood said.

“When I first came to town to open
the garage, I was alone. Hugh Plumlee
brought his car in to get it fixed and
we got talking. I liked him, and I guess
he liked me, so he invited me over to
the house. You see, my wife was still
in Toppenish. I went over there about

every night.
“Then—I don’t know how it started,
but Ruth and I... well, it was just

that way. She started coming down
here to the garage. I told her it was
nuts but she wouldn’t listen. She kept
saying we could go away together. I
told her I liked Hugh and I wouldn’t do
anything to hurt him. She said maybe

"Find the Seventh Hitch-Hiker"

The killer had led the driver of the car
out a few feet into the desert.

“He just put the gun up to his head
and pulled the trigger,” Cole said. “It
was awful. Then he made us dig. a
hole in the sand with our hands and
bury him. After that, we all got back
in the car. I drove and he sat in the
back seat with the gun on us. I figured
the smart thing was to play along with
him, so I asked him what we would do
next. ¥

“He said we would rent a motel and
then go into town and-have a big party.
I guess he’d stopped here before and
met some women who work in one of
the gambling casinos.”

“Did he say which one?”

“No.”

Hanlon came over when he finished
talking with Headquarters. ‘All the
highways are covered again,” he an-
nounced. ‘My guess is this killer will
pick up another car and lam out of
here.” : .

“If he takes off that jacket he’s go-
ing to be hard to identify,” Bell pointed
out. “It’s about the only distinguish-
ing thing we’ve got on him.”

“What’ll we do now?” Hanlon asked.

The officers didn’t know. Someplace
out on the desert, covered with sand,
was a man’s body. Police were really
in worse shape than they had been be-
fore. Previously, they’d had the Buick
sedan to look for. Now, their only clue
was a leather jacket. If the killer re-
moved it, he would be difficult to find.

“Maybe they’ll stay right here in
town,” Powell suggested. “They have
money and these fellows say he knows
some girls here. I suggest we split up,
each of us taking one of these kids, and
cruise around town looking for them.”

“How about the body?” Hanlon
asked.

“We'll never find it before daybreak.
The big thing now is to locate the
killer.”

So they sent for more cars and set
out, a boy and an officer in each car.

Cole went with Bell. On the way in
to town, he told the deputy how they
had managed to escape from the killer.

“When we reached the motel we all
got out,” he said. “The fellow with the
gun was feeling pretty good. He was
telling us how we could drive the car
to New York and stick up places going
across the country and live in style. It

54

didn’t seem to bother him a bit that
he had killed the man.”

“What were you fellows doing all this
time?” Bell asked.

“We pretended we were stringing
along with him. Then, when we went
into the cabin, I told Bolly and Joe to
follow me outside. I had the key to
the car and we jumped in it and drove
like mad until we found the drug store
open and the two cops inside.”

The officers and hitch-hiker teams
cruised along the streets, looking into
each cafe, bar and gambling casino
that was still open.

They covered the whole town without .

success, then returned to Headquarters.

HERE Fostarini told them: “We
heard from Barstow. The owner of

the car is named Ward Budzien. Los
Angeles police are going to see what
they can find out about him.”

“That won’t help us find the killer,”
Bell said. “If he gets out of this area,
we'll have a tough time ever catching
up with him.” ~*

Bell questioned the hitch-hikers
further. ‘“Can’t any of you fellows re-
member anything those two.said that
might help us identify them?”

“The one with the gun is an ex-con,”
Cole declared.

“How-do you know?”

“I asked him why he wanted to kill
this fellow. I said it was kind of stupid
to hang a serious rap on yourself for
a@ measly robbery. He just laughed at
me and said I was the stupid one be-
cause he was sent up for a holdup once
and did six years for it.

“If you got no witness, they can’t
pin nothing on you,’ he said. ‘From
here on we're going to stick up a lot of
people, all the way to New York, and
we're going to kill every one of them,
see? And we're going to start it right
now, on this fellow ... the cops ain’t
got no description or nothing on you.’
That’s just what he said,” Cole de-

‘clared.

“He must be crazy!” Powell saia.

Bell agreed. “If that’s the case, we
may have some more killings. He'll try
to grab a car for a getaway. If he can’t
steal one, he may kill for it. And the
thirty-one dollars won’t last him long.”

Cole said: “He’s a wrong one. You
should see his eyes. He’d just as soon
kill you as look at you, wouldn’t he, fel-

if Hugh died it would be different. As
soon as I heard Hugh had been poi-
soned—well, I don’t know that she did
it but she always talked about what we
would do if Hugh died.”

Greenwood and Stanioch drove back
to see Mrs. Plumlee.

“We've talked to Eddie Gorlick,”
Greenwood informed her. “He has told
us everything.” sat
_ “Everything?” she questioned.

“Well, he says you chased him and
he has suggested that possibly it was
you who poisoned your husband.”

“I don’t believe you.” ‘

“T’'ll be happy to take you to-him and
let you hear it from his own lips.”

“Where did you put the poison after
you used it?” Stanioch asked her
calmly. “i

Realizing that it was useless for her
to deny the crime, Mrs. Plumlee replied:
“It’s in the pocket of my old coat in the
hall.. I put it there because I didn’t
want any animals to get at it and die.”

“How did you poison him?”

“T put it in a salad. Hugh actually
did come home after work, in spite of
what I told you before. He said he was
hungry. I told him dinner wouldn’t be
ready for an hour or more. There
wasn’t any use cooking him a big din-
ner if he was going to die anyhow, so
I told him to eat the salad and he could
have his dinner later.

“After he ate the salad, he walked
downtown. When they told me he had
died, I was really sorry because Hugh
was good to me. I guess if I hadn't

(Continued from Page 16)

lows? He shot that man with no more
feeling than you'd kill a rabbit.”

The others agreed.

Hanlon paced the length of the room,
dragging at a cigaret. “I feel like we
ought to be doing something,” he said.

How find the killer?

How stop him before he killed again?

The telephone jangled. Fostarini
called from the radio room: “It’s long
distance from Los Angeles.”

Powell answered.

He learned from the Los Angeles
police that Ward Budzien Jived on West
41st Place in Los Angeles. He had a
wife, Ivy, and two sons, Ward, Junior,
23, and Richard, 20. Richard was in the
army at Camp Cooke. Budzien had left
his home earlier in the day for a vaca-
tion trip to visit his brother-in-law,
Frank J. Price, on North Main Street
in Las Vegas.

“We haven’t officially notified his
wife that he is dead yet,” the Los An-
geles police said. “Have you recovered
the body?”

“Not yet.”

“Notify us when you have it identi-

Powell talked to the others. “Do you
beeen we ought to call his brother-in-

aw?”

“I. don't see any reason until after
we've located the body,” Hanlon replied
“He can’t do any good tonight. About
all he’ll be able to do is identify it after
we've brought it in.” -

NCE again Bell questioned the
‘hitch-hikers. ‘“Can’t you fellows
boo of anything else those other two
said that might give us a lead? You
know as well as we do what kind they
Malski said: “Is there’ someplace
around here called Rocks, or something
like that?”

“Rocks?”

“Yeah. When we went into the mo-
tel, I heard this fellow with the gun tell
the other one that maybe they’d go up
there. It seems like he’d been there be-
fore he figured on robbing some joint.
He said it ought to be a cinch.”

“Are you sure it was Rocks?”

“That’s what I thought.”

“Boulder!” Powell cried. “Boulder
City!”

“Yeah. That’s it. Boulder.”

Bell said: “I'll call our car there.” He

loved Eddie so much, I could have
loved Hugh because he was awfully
nice. I felt real bad about it.”

Stanioch went to the closet where, in
a coat pocket, he found a bottle of com-
mercial insect poison, a common brand
on the market at that time. Mrs. Plum-
lee said she had bought it several days
before in a small store outside of town
—a store which the officials hadn’t
reached in the investigation.

At Police Headquarters, she made a
complete confession.

The case of first-degree murder
against Ruth Plumlee was brought be-
fore Judge Walter M. French at Port
Orchard in Kitsap County on April 28,
1922, The defense had declared that
it intended to make a vigorous plea of
not guilty on the grounds that Ruth
Plumlee was temporarily insane at the
time she poisoned her husband.

Prosecutor Greenwood lined up a
strong case for the prosecution. He
summoned over 50 witnesses.

However, at the last moment, when
the charge was read in court, the de-
fense entered a plea of guilty and
begged for leniency.

Judge French sentenced Ruth Plum-
lee to life imprisonment and she was
taken to the State Penitentiary at
Walla Walla, Washington, to pay for
her crimie.

_ The name of Eddie Gorlick is fic-
titious to protect an innocent person.
The name of the Hill Top Club also
has been changed.

Read It First In
OFFICIAL DETECTIVE STORIES

went to the radio room and soon was
talking to Deputies Reeves and Hardy.

“We're looking for two men,” he told
them. “They have—”

“The ones on that broadcast for the
killing.”

“Yeah. We think they may be head-
ing your way.”

“They were,” Reeves said with a
chuckle. “But they aren’t any more.”

“What?”

“We just picked ’em up a couple of
minutes ago. They haven’t got a gun
and they claim we’re nuts, but I’m
pretty sure it’s the same two. Hardy
spotted them on the road and they hid
out when we passed, so we parked up
ahead and hiked back on foot.”

“Take them in to Henderson,” Bell
said. ‘“We’ll meet you there.”

Reeves and Hardy were waiting for
the officers when they arrived. They
had the hitch-hikers with them.

BELL claimed that the five youths
identified Vernon Bourdlais as the
killer of Budzien.

The youth with him was Harry Dyer.

“They’re nuts,” Bourdlais declared.
“I didn’t kill nobody.. They must have
been smoking the weed.”

However, Bell said, Dyer also iden-
tified Bourdlais.

The deputy quoted Dyer as saying,
“He killed him, all right. He* threat-
ened to kill me. I think he’s the one
that’s nuts. I’ve been scared to death
ever since I met him in San Bernar-
dino and all he’s been talking about
was robbing somebody and killing
them.”

The sun was beginning to break over
the rolling sandhills.

“Let’s go find the body,” Bell said.
“If it was near the power lines, then it
should be about two miles out.”

It was, and it had one bullet through
the head.

“So I shot him,” officers claimed
Bourdlais said. “The mistake I made
was having these punks with me. I'd
have done better to shoot them, too.”

District Attorney Roger Foley has
placed charges of first-degree murder
against Bourdlais. He is being held
pending further legal proceedings as
this is written. Dyer, Juszczak, Cale,
Malski, Andrews and Cockrell were
completely exonerated from any com-
plicity in the crime. .

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Vernon Bourdlais,
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So Se ee


DRAGONS ON HIS BACK

The Oriental jacket suggested Chinese-style execution. But who was the executioner?

BY CHARLES MOREHEAD

é

Dep. Findlay, Sheriff LeRoy (r.) had odd clue to a killer

30

realized that young Larry Waters had behaved

rather strangely. He did not seem like himself
when he drove off with the strange youth in the
blue sedan, ostensibly to help him buy some tires.
But Howard, a busy filling station operator, had
other things on his mind and didn’t really think
about it at the time. When he did have reason to

recall it, it was too late.

It was a few minutes after noon on the sultry summer
Wednesday of August 26th, 1959, when the dusty blue sedan
rolled into the D. & H. Service Station on the outskirts of
Livermore, in the rolling foothills of the Diablo Range
southeast of Oakland, California. George Howard, the co-
owner, didn’t actually see the car pull in. He had left the
station just a moment before, to step back to his daughter’s
bungalow at the rear of the lot. His 19-year-old daughter,
Mrs. Julia Dawkins, had called to him, asking him to come
over and watch her baby while she made a telephone call
from the station office.

“T’]] be back in a few minutes, Larry,’ Howard told his
eager young summer attendant, 17-year-old Larry Waters,
as he wiped his hands on a greasy rag and walked back to
the bungalow.

“Take your time, Mr. Howard.” The slim, dark-haired,
good-looking young high school graduate smiled. “Every-
thing’s under control.” ;

At that precise moment a blue sedan turned into the
station, which stands on a busy corner just outside Liver-
more’s northern limits and a short distance from U.S.
Highway 50, the main artery between the San Francisco
Bay cities and the San Joaquin Valley. The young driver
got out and ordered a tankful of gasoline. Larry Waters
hastened to serve him.

When pretty Julia Dawkins came in to make her phone

TL rectizea 0 BACK ON IT, later, George Howard

Jere Vraloenir4+

call, the «
older than }
Larry fille
tention to !
continued t
she talked
Larry fin
dered a qua
completed h
When Gex
the other y
side the dox
boss, “woul
for a while
see about si
Big Geor
tendant. L:
ir’ which h:
way of spes
were dead]
in the bala:
But Larr
been long
was simpls
tion. He h:
young cust
to do a fay
“Yes, we
youth put
won’t take
Howard
sell his frie
supposed t!
second-har
ning at La
Larry,’’ he
think I car
that lube
“No, sir,
“Well, d
the aftern:
you’re out.
“Oh, yes
George |}
attention a
the blue s:
about half
to change
that there
small chan
figuring. 7
missing.
Belated!
beam. The
behavior. |}
it, when h
near the c
he had ho
of times.
Howard
Larry sho
tendant w
anyway, |
have anyt
have take
out an ok
George
Waters ha
implicitly
him, that
was a Ml
Hoping
station op
hour pass:
the Wate


essed kill-
ight They
y INSIDE,
ir others,
a second-
from the
he Crim-
Freedom
> for Ar-
vhom was
to Mat-
»denheim,
t Village
denheim’s
qlude for
troes#r>
nd

ut

‘ic ;
TOYO sad
onths be-
lad. killed
se he be-
them had

Carole Tregoff has written another
chapter to The Carole Tregoff Story:
Where She’s Been, Where She’s Going
(June INSIDE, 1960) at the Women’s In-
stitution at: Corona, Cal. She underwent
major surgery for removal of a tumor,
but shortly thereafter was back at her
prison duties in the kitchen. Dr. Bernard
Finch, an inmate of San Quentin as the
result of his and Carole’s murder of the
doctor’s wife in one of the country’s most
sensational cases, was not informed of
the operation, according to the superin-
tendent at the prison in which Carole is
serving . . . despite the doctor’s state-
ment that he was still in love with Miss
Tregoff and hoped to marry her if they
ever gained freedom from their prison
sentences via parole.

Robert Stroud, “The Birdman Of Al-
catraz,” according to the title of the
motion picture recently made about his
life of 41 Years In Solitary (July Insive,
1958) during which he became a world-
wide authority on birds . . . is still unable
to fly free of prison walls: he recently
was turned down by the parole board for
the twenty-fifth time. Stroud’s case, as
well as his self-taught knowledge of birds,
achieved world-wide attention because. of
the inhumanity of his confinement to
solitary following his conviction for the
murder of a prison guard.

Thayne Archibald, scheduled to die
for the murder of 17-year-old gas station
attendant Larry Waters, had a fellow
inmate bucking for his commutation.
Convict Robert Paola pleaded for the life
of the 24-year-old murderer in the Ne-
vada State Prison publication, Sagebrush.
“A great change” has come over Archi-
bald since his admission that he kidnaped
the Livermore, Cal., boy and shot him’ to
death near Reno, Nev., Paola wrote in
the prison paper (May I Leave To At-
tend My Murder . . . December INSIDE,
1959). Paola was not the only one speak-
ing up for Archibald:
chologist said he believed Archibald had
become “completely rehabilitated” and
could “become a useful member of so-
ciety.” But no one will ever know, for
sure ... Archibald was executed, as sched-
uled.

Richard E. Dirlam, 21, of Fremont,
Ohio, has been found guilty of being an
accessory after the fact in the slaying of
Walter J. Stepniak, a half-owner of a
Jacksonville, Fla., bar. Dirlam, who
could get a maximum of seven years, was
accused of trying to dispose of a .22
caliber revolver used by Ernest J. Thomas
to kill Stepniak (Jf You Dun Me You're
Dead, December INSIDE, 1960). Thomas
has already been sentenced to life im-
prisonment. Dirlam said he had loaned
Thomas the gun, but he wasn’t aware
that Thomas was going to kill someone
with it until Thomas said to him, “I’m
going to get Walt.” “T tried to talk kim
out of it,” Diriam insisted, “and tried to

ime

INSIDE DETECTIVE, -November,

the prison psy-—

7

get him to give the gun back, but he
wouldn’t do it.”” He was afraid to go to
police after the shooting, Dirlam main-
tained, because “T’d be convicted.on my
past record” (he had a delinquency war-
rant against him for taking a 16-year-old
girl with him across state lines).

Minnie ‘Mangum, spinster Sunday
school teacher who embezzled more than
a million dollars from the loan firm
where she worked, has been denied pa-
role. She has already served five years of
the 20-year sentence imposed on her
(Miss Minnie And The Missing Millions,
August INSIDE, 1956).

Mike Gisondi, serving a life term for

the holdup slayings of Hazel Park, Mich.,
bar owner Joseph Vinokurow and_ his
father Vidos Vinokurow, was suddenly

‘ missing from Southern Michigan Prison.

Gisondi, of Elwood, Pa., had previously
escaped from the state prisons at Ionia

and Marquette.. It was while-he was an ~

escapee from Ionia that the Vinokurows
were killed (Too Scared To Run, Decem-
ber «nsmpDe, 1952). During his most re-
cent escape maneuver, Gisondi was pres-
ent for the noon headcount at the prison,

but was discovered missing later in the -

day. Nine days later, he was found ... .
sipping coffee and eating a roll in a stor-
age room above the prison cannery. Yes,
he was still in prison, but officers believe
he was discovered in the nick of- time.
They theorized that he planned to get
outside of the prison’s walls by hiding in
a carton of canned goods scheduled to be
shipped from the cannery to other state
institutions later in the day that he was
found calmly enjoying his breakfast. He
was spotted when a shakedown crew of

~ five officers, making a routine inspection
“of*the prison, spotted an electric cord
' in the storage room and followed it past

packing cases to find Gisondi calmly
enjoying the coffee he’d been brewing on
the hot plate attached to the electric

oe the officers had so accidentally spot-
ted.

Spade Cooley, former radio, TV and
movie bandleader, has been sentenced to
life in prison for the murder of his wife
(Inside Report, July 1nstwwe, 1961). The
man who parlayed an old fiddle into fame
and fortune as the King Of Western
Swing, beat and stomped to death his
wife, Ella Mae, 37, in their ranch home
near Bakersfield, Cal. The sentence on
Cooley followed a meeting between op-
posing attorneys and Superior Court
Judge William L. Bradshaw while: Cooley
was preparing to show he was insane April
3 when he killed his wife. After the
conference in Judge Bradshaw’s chant-
bers, Cooley’s attorney conferred for
more than an hour with his client, who
then waived his right to a sanity trial and

also waived his right to have the jury set

the sentence. Normally persons serving
life sentences in California are eligible for
pare after seven years.

ARCHIBALD, Thayne, white, asphyxiated Nevada (Washoe) on B_23-1961.

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1002

land’s automobile, parked at the Dees Apart-
ments. The substance of the testimony of
the witness, Norman Westmoreland, was
that he heard a woman seream; that there
was fresh blood on the defendant’s hands,
his shirt and coat. One witness, Mrs. I. O.
Friend, testified that she stood across the
street, opposite the apartment and in plain
view; that her attention was attracted by
loud screams of a woman, which impressed
her as death screams, pleading for life, and
that she saw no person run out of the apart-
ment.

Shortly after the defendant had been tak-
en to jail, he was brought back to the place
of the homicide by Joe Keate, the sheriff,
and his deputy, Glenn FE. Bodell. On being
questioned, the defendant protested his in-
nocence, disclaimed having killed the de-
ceased, and stated that a “nigger,” or color-
ed person, killed ber. Officer Keate testified
that, when the defendant had been taken
back to jail, he had several conversations
with him during the day, in which defendant
maintained that he did not. kill Maxine. He
testified that, because of the persistent state-
ments of the defendant, he felt that he
should satisfy himself whether he had _ to
look for another person. He testified that
in the nighttime he contacted his deputy,
Glenn E. Bodell, and requested him to come
with him; that he was going to take the
defendant down to the apartment and learn
more about the crime. The sheriff and his
deputy handcuffed the defendant at the hour
of 2:30 o’clock on the morning of July 24th,
after the homicide, placed him in an automo-
bile, and drove to the apartment; on their ar-
rival there, they went into the kitchen, turn-
ed on the light, and led the defendant into
the bedroom, the sheriff standing on one
side of him and the deputy on the other
side; the sheriff testified that both ques-
tioned the defendant kindly, using no force,
no promises or threats, and in response to
questioning the defendant maintained that
a colored person or nigger killed Maxine.
At this point counsel for the defendant inter-
posed the objection that the witness should
not be permitted to testify to the conversa-
tion had at that time unless it was shown
that any statement made by defendant rela-
tive to the crime was freely and voluntarily
made, and, in order to determine this, a
question of law, he suggested that the fur-
ther examination of the witness Keate he
continued without the presence of the jury.
The request was granted. On the cross-
examination of Keate we note that an at-
tempt was made to lay a foundation for the
contradiction or impeachment of the testi-

29 PACIFIC REPORTER, 2d SERIES

mony of the witness respecting. the conver-
sation had with the defendant at that time.
When the examination was concluded, coun-
sel for defendant requested that he be per-
mitted to interrogate Bodell relative to the
conversation and to the incidents which oc-
curred at the time. The request was de-
nied. Whereupon the court ruled that the
testimony of Officer Keate was -admissible
in evidence. The examination of Keate was
continued in the presence of the jury, and
over defendant’s objections he was permit-
ted to testify relative to other conversations
had with defendant alone and in the pres-
ence of others, involving incriminating ad-
missions of the defendant. ’

A witness for the state, one Mary Young,
was, over the objections of the defendant,
permitted to testify that at about 8 o’clock
on the morning of the 23d the defendant en-
tered her room in the Honoiulu Inn in the
restricted district in the city of Las Vegas
and but a short distance from the Dees
Apartments, She testified that defendant's
presence there awakened her, and that she
was frightened by the defendant standing
over her, looking mad; that he had some-
thing concealed in his shirt; that she
screamed and he told her to hush; that a
difficulty between them ensued, and both
landed out into the street when others, hear-
ing the disturbance, appeared, and the de-
fendant quieted down, Over the defendant’s
objections, the witness was asked questions
relative to the condition of her room. The
Substance of her testimony was that the
drawers of her dresser had been opened and
their contents disheveled and confused. In
that connection the state’s attorney, in re-
sponse to the court’s questions, stated that
the purpose of this questioning was to show
motive and the defendant’s state of mind.
Upon this theory the evidence as to the con-
dition of the room and what occurred there
was permitted to go to the jury.

When the state rested, the defendant was
called as a witness in his own behalf. He
was questioned respecting his history, the
time he had resided in Las Vegas, his oceu-
pation, his friendly relations with the of-
ficer, Bodell, his plysieal and mental condi-
tion, and as to certain conversations he had
had with Officer Bodell relative to the hom-
icide. On direct examination he was asked
to relate what took place between himself
and the witness, Mary Young, at the tinie
she had testified to as a witness for the state.
Ife testified that he stopped in at her place
of business to talk to her, with no intention
of haying trouble; that it seemed to him

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‘ rriiigy! om i ? ’ j te $e ayan apes AAS idee aA Rt “IRR. Peale nk wine we
STATH v. BEHITHR Nev. 1003
29 P.(2d)

that he lost his head and became very much
frightened, and from that time he had no
recollection whatever of what he did or what
occurred up to the time he was being beaten
at the Dees Apartments. The substance of
his testimony relative to his mental condition
was that everything seemed dark, that he
was off, hazy minded, was suffering from
headache, and that he had tried the very best
he could to remember what occurred after
the diticulty with Mary Young, but could not
do so. In the course of his direct examina-
tion he testified that about four of five years
ago he had been hit over the head with a pis-
tol at Poplar Bluff, Mo., and that he went to
a hospital there and took treatment for said
injury, and that he stayed in the hospital for
about a week, and since that time he was
subject to pains in the head and was suffer-
ing from the same character of pains on the
morning of the homicide. In the course of
his direct examination he was questioned
minutely respecting the statements made to
him in the conversation at the hour of 2:3
o'clock on the morning of July 24th by Officer
Bodell and the incidents that occurred dur-
ing the conversation. The conversation as
testified to by him tends to show that his
answers to the questions propounded to him
by Officer Bodell were involuntary,

Otlicer Bodell was called as a witness for
the defendant. In the course of his testi-
mony on direct he qualified as an expert on
fingerprints, but he was not asked on direct
whether he had made any prints at the place
of the homicide and compared them with
prints made of the defendant’s hand. On
cross-examination, over the defendant’s ob-
jections, the witness stated that he, not long
after the homicide, made palm prints from
the blood-smeared railing of the bed in
Apartment No, 6 of the Dees Apartments,
which had forty-two characteristics of the
palm prints made by him of the defendant’s
right hand.

On, the part of the defense several wit-
nesses who had known the defendant for a
few months in the city of Las Vegas testified
that they considered him mentally unsound.
Several witnesses who gave testimony by
deposition testified that they considered him
mentally unsound; each giving his reasons
for considering defendant insane.

The witnesses in rebuttal on the part of
the state testified that in their opinion -de-
fendant was sane and knew right from
wrong.

Upon conclusion of the trial, u volume of
instructions were handed the foreman of the

LOA. beh ip aneina gee otidos Piala acd in’ TG eben deanna bitainn Ot iid :

jury, together with several forms of verdict,
from which the jury selected and returned
the following: ‘We, the jury in the above-
entitled cause, find the defendant, Joseph.
Behiter, guilty of murder in the first degree
as charged in the information, and fix his
punishment at death.”

On the date fixed for the pronouncement
of judgment, the defendant. moved the court
for a new trial on the ground of after-dis-
covered evidence, set forth in the affidavit of
one of counsel for the defendant, then pre-
sented to the court. Upon argument, the
motion was overruled. Whereupon judgment
was pronounced in accordance with the ver-
dict of the jury, and the defendant was sen-
tenced to death by lethal gas in the mode
and manner as prescribed by the law of this
state.

[1] We note from the record that the judg-
ment was pronounced on November 2, 1931.
The appeal from the judgment and order de-
nying a new trial was not submitted to this
court for decision until on September 18, 1933,
since which date this court has given careful
and thorough examination of the record to
determine whether or not there has been a
miscarriage of justice and whether the de-
fendant has been prejudiced in respect to a
substantial right. The court is admonished
by statute (section 11266, N. C. 1.) that no
judgment shall be set aside or new trial
granted in any case on the ground of misdi-
rection of the jury or the improper admission
or rejection of evidence, unless in the opin-
ion of the court, after an examination of the
entire case, it shall appear that the error
complained of has resulted in a miscarriage
of justice or has actually prejudiced the de-
fendant, in respect to a substantial right. In
several cases the court has had occasion to
point out that the statute is designed to in-
hibit courts from setting aside judgments or
granting new trials, where, upon examination
of the entire case, the verdict is manifestly
right or where it appears that no other ver-
dict could have been properly returned by the
jury. .

The various assignments of error are gath-
ered from the record by learned counsel, for-
merly judge of one of our district courts, who
did not represent the defendant upon his
trial. The assignments have been selected
with care and have been presented with as-
siduity and argued with ability. Counse) in-
sist that, in view of the entire record and ac-
cumulations of alleged error, a judgment of
reversal is warranted under the law and facts
in the interests of justice and humanity,

esi diaotehia ts MALE TaLstit nade hada lenianiin ti sidadtdnaninadh Aik eae LH OTT. re nc ncokileiaieidaddal nada


1004 Nev.

I look with disfavor on counsels’ conclu-
sion because the elements which would enti-
tle their most unfortunate client to the chari-
ty of the law are not present to the facts of
this case.

The general assignment that the court
erred in the admission of evidence is sub-
divided in the opening brief into several head-
ings: (1) The court erred in permitting the
improper cross-examination of the defendant
relative to admissions and confession not
shown to be voluntary. (2) The court erred
in permitting certain admissions and con-
fession of the defendant in evidence induced
by hope of reward, promise of immunity from
punishment, and under circumstances suf-
ficient to create terror or fear in the mind of
the defendant. (8) The court erred in per-
mitting a witness for the defendant on cross-
examination to testify relative to the results
made by the witness of comparison of palm
prints lifted or made from the blood-smeared
railing of the bed in the apartment where
the homicide occurred with the palm prints
lifted or taken by the witness from the de-
fendant’s right hand.

[2,3] The chief ground upon which the de-
fendant complains that the trial court, over
his objections, admitted in evidence his ad-
‘missions and confession, not shown to be vol-
untary, has its source or basis in a conversa-
tion by the sheriff and his deputy, had
with the defendant at the hour of 2:30 o’clock
on the morning after the homicide at the
place of the homicide, with no one present
other than the two officers and the defendant,
Sheriff Joe Keate, a witness for the state,
was questioned in direct and cross relative
to what was said to and by the defendant
on that oceasion. The substance of Officer
Keate’s testimony was that the defendant
was questioned kindly, and that no promises
or threats were made, and that, in response
to repeated questioning, the defendant main-
tained that he did not commit the crime, but
that a nigger or colored person did it. The
record discloses that the testimony of the de-
fendant, as a wilness in his own behalf, and
that of Deputy Sheriff Bodell, as a witness
for the defendant, flatly contradicted the
statement of the witness Keate. Bodell testi-
fied that the defendant was shaky and ner-
yous; that he said to the defendant: “Joe,
J have got you dead bank. There’s your
finger prints on the bed. You killed her.”
“Joo, how many times did you hit her?’ De-
fondant said: “I don’t remember. I was diz-
zy and mad’—that he was crazy and try-
ing to get away; that he did not intend to

29 PACIFIC REPORTER, 2d SERIES

hurt her; that he thought it was a ham-
mer that he hit her with. Bodell said: ‘Joe,
you had better come clean. You might beat
the gas.” ‘The witness stated that it was
dark in the room and that he threw a flash-
light on the bed of blood and hair, and that
he thought the defendant was going to faint;
that he reached up in the dark and dropped a
fan on the floor to startle defendant; that
the defendant was startled and suddenly ex-
elaimed: “Don’t. I did it.”

Under the decisions of this court and the
numerous cases cited in the brief of counsel
for the defendant, there can be no controversy
as to the law relative to the introduction in
evidence of a confession when relied upon by
the state to connect the accused with the com-
mission of the crime charged. In the view we
take of the record respecting the conversation
had with the defendant by the two officers at
the unusual hour on the morning after the
homicide, there is nothing in the conversa-
tion, as testified to by Sheriff Keate, to con-
nect the defendant with the murder, but, on
the contrary, no admission or confession was
made by the defendant in the course of the
conyersation. The defendant, in response to
repeated questions, actually denied that he
killed the deceased, and insisted that a negro
or colored person had killed her. Except for
the statements made by Officer Bodell in his
account of the conversation, there was no tes-
timony or a circumstance to show that the
defendant made any admissions and confes-
sion. Sheriff Keate testified that no confes-
sion was made. Bodell, on the other hand,
testified that one was made under circum-
stances tending to show that it was involun-
tarily made. In this situation the defendant
is in no position to predicate error upon the
admission in evidence of his admissions and
confession, as testified to and detailed by his
own witness. An accused is entitled to in-
troduce evidence to rebut the claim of the
state that his confession was voluntary.
State v. Williams, 31 Nev. 860, 102 P. 974.
But here there was no testimony on the part
of the state upon which it could possibly rely
to connect. the defendant with the murder.
Consequently, this, a reviewing court, cannot
say that as a matter of law the defendant war
injured by the introduction in evidence of his
admissions and confession, testified to by his
own witness, and without which there was no
testimony to show that a confession was mado
in the conversation réferred to and that it
was involuntary.

[4-6] Mrror is predicated upon a conversa-
tion testified to by Sheriff Keate had with

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STATE vy. BEHITER

1005

Nev.

29 P.(2d)

the defendant subsequent to that as testified
to by him and Officer Bodell on the morning
of the 24th, in which Keate testified, in an-
swer to a question, as follows:

“A. He, the defendant, was telling me dur-
ing the course of this conversation that the
morning that the crime was committed that he
had had a couple of bottles of beer and that he
wandered down in the district and when he
got down there that there was some blond
girl that he had been to see before, and that
he went to the place, what he thought was
her room, but it seemed as though there was
another woman there that he didn’t recognize
and that something in the way of a row took
place, and that there was a rock lying by
the door, as he remembered it, he didn’t
know whether he threw it at her or just what
happened. He said that he went away. He
was mad and he kept getting madder and
that he went to some car and in the back seat
of that car he found a hammer and he wiuited
to get even. It seemed like that he was
afraid. He said there might be someone after
him, and that when he went in the room, one
time he said the woman screamed, and that
he did not know how many times he hit her.
There was another conversation took place
along the lines, but there was some change
from that.”

“A. This other time in talking about the
affair he said that when he stepped in the
room that the girl screamed and he said
‘shush’ to her to keep quiet, and there was
other things that we talked about in general.”

Ye do not think the statements quoted
amount to a confession. At most, they were
admissions of certain facts which indicated
the guilt of defendant. An admission, as ap-
plied to criminal law, is something less than
a confession, and is but an acknowledgment
of some fact or circumstances which in itself
is insufficient to authorize a conviction, and
which tends only toward the proof of the ul-
timate fact of guilt. People y. Ferdinand, 194
Cal, 555, 229 P. 841. The rule is well settled
that with reference to admissions, as distin-
guished from confessions, it is not necessary
to show preliminarily to their introduction in
evidence that they were made voluntarily by
defendant, without the use of coercion or in-
timidation of any sort, and without promise
of reward or immunity from punishment.
People y. Cronevitch, 86 Cal. App. 646, 261 P.
3809, 811. It must therefore be concluded that

the contention of counsel cannot be sustained.

[7] In the case of People v. Cronevitch, su-
pra, the court said: “But aside from the ad-
missions made by defendant, the other evi-

dence was so strong and so suggestive of the
guilt of defendant that, as a matter of law,
it may not be said that any injury resulted
to defendant by reason of the introduction in
evidence of such admissions.” So, in this
case, in view of the other evidence which
points almost conclusively to the defendant's
guilt, we, as a matter of Inw, cannot say that
the defendant was injured by his admissions
and confession as shown by his own witness,
Deputy Sheriff Bodell. The circumstances
proven were apparently conclusive of defend-
ant’s guilt, regardless of his admissions and
confessions, so that any mistake or error in
their admission probably would not have
changed the verdict. State v. Williams, su-
pra.

[8-10] The point is raised that the trial
court committed error in admitting evidence
cf another offense committed by the defend-
ant. The offense referred to is defendant’s
eniry into the room of Mary Young in the
Tfonolulu Inn, a short distance from the Dees
Apartments, and shortly before his entry into
the apartment of the deceased. The evidence
was admissible for two reasons: (1) That evi-
dence of another offense is admissible if tend-
ing directly to prove defendant’s guilt of the
charge, State v. Hall, 54 Nev. 213, 18 P.(2d)
624. (2) That no injury resulted from the
admission of the evidence in that and for ths
reason that the defendant, as a witness in his
owlt behalf, grounded his defense of insanity
upon the alleged offense in that he testified
that after his entry into Mary Young’s room
he lost his memory and had no recollection
of what occurred afterwards.

[11] The next assignment of error relates
to the claimed improper cross-examination of
the defendant’s witness isodell respecting the
result of the comparison made by him of palm
prints of the defendant’s right hand with the
impression of palm prints lifted from the
blood-smeared railing of the bed upon which
the deceased was lying when found. On di-
rect examination, the witness was qualified
as a finger print expert, but he was not ques-
tioned on direct respecting any impressions
taken for the purpose of identifying the de-
fendant as the perpetrator of the crime charg-
ed, We note that the court, in ruling upon the
objection as not being proper cross-examina-
tion, stated that the door had been opened on
direct for the questioning. We agree with the
trial court. On direct the witness was asked
this question: “On or about the 23rd day of
July, 1931, did you conduct an investigation
into the matter of the killing in the Dees
Apartinents?” He answered; “I did.” We

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edd es tars |b sShdiradmneiaiinacaiindh stot ePne ing TUlLes


Blac Rwell Death
: “Slated for Dawn

{.

~ Convicted Slayer of Reno Policemen —
/ “Ready for Prison Gas Chamber

a

a

4 was ty: ”
. Si SA!
ae Se “e og '

are fae
‘

‘By ROBE RT LAXALT

‘United Press Staff Correspondent

Nitieteanfeapoli David Blackwell,

a typical “tough

‘kid,” faced execution at dawn today in Nevada's lethal ae
chamber for the slaying of two Reno policemen.
A husky and handsome youth who got into a “pad

crowd” during high school days and went from smaller to
‘bigger crimes, Blackwell was ready to dle.

He was no longer the arrogant,

‘boastful youth he was during his|:

many months.in death row. He
told Warden Richard Sheehy and
a friendly minister, the Rev. Lewis
J. George of the Calvary church
‘In nearby Gardnerville, that he

hed made his peace with God and].

‘wasn't afraid to enter the tiny gas
chamber.

Roland Blackwell, his .father,
and the Rev. George visited with
him yesterday morning. In the

afternoon, his: mother, father und|-

a brother, Harold, sald goodbye.
Following execution, his rarents
will ‘accompany his body to Gard-

‘nerville where burial will be in the|:

Garden Cemetery.

Warden Sheehy revealed that
Blackwell was calm and resigned
‘a few short hours before his exe-
cution. “He is taking it better
than anyone can imagine,” the
warden said.

He will enter the Ras chamber
et 5:15 a.m. and will be strapped
Into a white chair. Three bags
containing rekpectively rocks,
marbles and cyanide pellets will
be dropped into a vat of sulphuric
acid by means of three strings
leading outside the chamber.

The Tacoma, Wash., youth was
sentenced to die for the fatal
shooting on Nov. 8, 1947, of vet-

“where

He escaped from the. reforma-
tory elght days before the Reno
shooting and retu

he' mot

rerjously
wounded 17-year-

d David Wold,

_who had given police the tip which

led to Blackwell's arrest for the
grocery store robbery.
Then Blackwell returned to the

‘reform school where he broke in

eran Detective Cant: KeRoy Geach
and. Detective seh, en Glass.
The two officers died when they
enteréd Blackwell's hotel room
shortly after midnight to question |
him about a robbery and ,were|
met with a hall of bullets from a
pistol the young gunman snatched
from beneath his pillow.

His attorney carried a legal
battle to save his life all the way
“to the U. S. Supreme Court, which
‘\pefused to review: the case. Last
* Monday, the state board of par-
’ dons and paroles denied the tear-
“ful: pleas of his parents to com-

mute his death sentencd to life
_ Lmprisonment. .

Blackwell's criminal career be-
gan in high school when he joined
a 'teen-aged gang specializing in

‘ petty thievery. The wounding of a|
Tacoma grocer during an armed)

holdup in 1946 sent him to a re-
. form school. ,

and helped two companions, Ar-
nold Thomasson and James Blake,
escape.

After a series of robberies ‘in

«Colorado, Washington and Oregon,
-the trio came to Reno “to get
, eome easy money.” They held up
Aa bar jin mid-afternoon et gun-

‘point, which netted them $3,800. |

‘Blackwell shot and killed the

-two officers as they sought to

question. him about.this robbery.

‘His two.companions received pri-

‘gon. sentences. for takin ar
the holdup. ye! es
“An: older: brother.’ ‘Harold,. an
‘Army major during the recent
war and now a minister, explained

Blackwell's fate this way:

“He ‘just got'into a crowd of

‘bad axsociates In high school and
couldn't stop, He once told me
thatit was like a snowball—-that

,once'he atarted doing something
“wrong he couldn't stop untill: he
“had done something: worne, mie

d to Tacoma.

_DIES TODAY

DAVID BLACKWELL

‘Big Milkshake’

Is Last Request
By Young Slayer

Youthful

David DBlackvwell’s

| Jast earthly request was for ®

“great big chocolate milkshake.”
Warden Richard Sheehy vis-

{ted Blackwell yesterday after-
noon and told him he could have
anything within” renson. The
dark-haired youth = answered,
“Well, I'll tell you warden. I
wanta great big chocolate milk-
shake.”

The WarG@®@ noftonly Pulfliled
the final request, but also
brought along two extra shakes.
For his Iast meal Blackwell en-
joyed a chicken dinner.

*


——h

BLACKWELL, David, white, 19, gassed NVSP (Washoe), April 22, 1949.

Transcription of 3x5 card:

“November 8, 1947, Captain Joseph L. Geach, age 56, 12 years on the department, and
Sgt. Allen A. Glass, age 36, 4 years on the department, investigating an armed robbery, was shot
with a handgun (.38 carliber); subjects arrested were escapees from prison wanted on numerous
charges, ages 16-21-22. The convicted 16-year-old was sentenced to death as the actual
shooter.”-Information provided by Ronald C. Van Raalte, Box 584, Arlington Heights, IL,
60006. ;

198 Pacific (2nd series) 280.

Real Detective, December, 1948, page 22.

278 Nev. 597 PACIFIC REPORTER, 2d SERIES

interpretation of Faretta and submit that it
is not altogether clear whether Faretta and
its progeny have any applicability in the
context of a penalty hearing in a capital
case! Clearly, the California Supreme
Court has expressly declined to rule on the
issue, -People v. Teron, 23 Cal.38d 131, 151
Cal.Rptr. 653, 588 P.2d 773, 779, fn. 7 (Cal.
1979), and the Pennsylvania case cited by
the majority does not squarely address the
point. Com. v. Davis, 479 Pa. 274, 388 A.2d
324 (1978).?

The United States Supreme Court has
held unequivocally that a defendant must
be allowed to present mitigating circum-

stances before the death penalty may be >

imposed. Lockett v. Ohio, 438 U.S. 586, 98
S.Ct. 2954, 57 L.Ed.2d 973 (1978); H. Rob-
erts v. Louisiana, 4381 U.S. 688, 97 S.Ct.
1998, 52 L.Ed.2d 637 (1977); Woodson v.
North Carolina, 428 U.S. 280, 96 S.Ct. 2978,
49. L.Ed.2d 944 (1976); and see Smith v.
State, 93 Nev. 82, 560 P.2d 158 (1977). The
question in this case is whether a defendant
alone may waive that right, and whether a
three judge panel may honor that waiver
even when standby counsel are present in
court, ready to present such evidence in
mitigation. In my view, the answer is no.

1. In Faretta, the high Court simply held that
under the circumstances there present, where
the defendant was charged with grand theft
and timely asserted his right to proceed with
his own defense, the California courts, by forc-
ing him “to accept against his will a state-ap-
pointed public defender . . . deprived him
of his constitutional right to conduct his own
defense. . . .” Faretta v. California, su-
pra, 422 U.S. at 836, 95 S.Ct. at 2541.

In United States v. Taylor, 569 F.2d 448 (7th
Cir. 1978), cert. denied, 435 U.S. 952,.98 S.Ct.
1581, 55 L.Ed.2d 803, the Court stated:

We recognize that Faretta holds that an
accused has a constitutional right to dispense
with the assistance of counsel and to conduct
his defense personally. It does not inevitably
follow, however, that this right of self-repre-
sentation comprehends any correlative right
to preclude the trial court from appointing
counsel and authorizing him to participate in
the trial over the accused’s objection in order
to protect the public interest in the fairness
and integrity of the proceedings. [Footnote
omitted.] :

Id., at 452. Here, the panel apparently believed
it was acting in accordance with the mandates
of Faretta. In my view, such a narrow reading
of Faretta was unjustified given the circum-

The panel, having ordered the presence of
standby counsel, and having urged Bishop
to consult with them, should have given
counsel reasonable deference, notwithstand-
ing their client’s “death wish.”3 Anything
less constitutes state-sanctioned suicide.
Moreover, the state has an independent in-
terest in penalty determinations. See Com.
v. McKenna, 476 Pa. 428, 8838 A.2d 174
(1978). Our statutes permit sentencing a
defendant to death only after the sentenc-
ing tribunal has carefully balanced the ag-
gravating and mitigating circumstances of
the crime, the defendant, and the victim.
NRS 175.558, 175.554(2), and see NRS 200.-
035. These statutes, as well as our prior
decisions impose an affirmative duty upon
the tribunal. See Smith v. State, supra. A
sentencing hearing in a death penalty case
is more of a fact-finding proceeding than a
traditional adversary hearing. As such, the
panel should have had the benefit of all
relevant evidence, including that offered by
standby counsel. NRS 175.552. Although
the panel concluded the state had disproven
the existence of several of the mitigating
circumstances specified in NRS 200.035,
subsection 7 of that statute allows proof of

stances of this case. Indeed, Faretta contem-
plates that a state court, even over the objec-
tion of an accused, has discretion to appoint
“‘standby counsel’ to aid the accused if and
when the accused requests help, and to be
available to represent the accused in the event
that termination of the defendant’s self-repre-
sentation is necessary.” Faretta v. California,
supra, 422 U.S. at 835, fn. 46, 95 S.Ct. at 2541.
(Emphasis added.) To protect the integrity of
the criminal process, the panel owed a duty to
» temporarily suspend Bishop’s right to proceed
in his own behalf so that the sentencing pro-
ceedings could be made more complete.

2. Although Davis represented himself during
trial (with the assistance of standby counsel),
he was represented by counsel at the time of
the formal post-verdict sentencing proceedings
and in the prosecution of his appeal. Com. v.
Davis, supra, 388 A.2d at 325, fn. 2.

3. The record in this case is replete with indica-
tions by appellant of his desire to be executed
pursuant to law. Moreover, Bishop has com-
municated his wish to me and the other mem-
bers of this court.

BISHOP v. STATE Nev. 279
Cite as 597 P.2d 273

“any other mitigating circumstance.” The
panel should have permitted standby coun-
sel to speak. See United States v. Dough-
erty, 154 U.S.App.D.C. 76, 473 F.2d 1113
(1972). :

In Com. v. McKenna, supra, defendant
appealed his convictions of rape and first
degree murder, but refused to challenge his
death sentence. The court affirmed the
convictions but remanded for resentencing
on the ground that the statute under which
McKenna was sentenced was unconstitu-
tional. Id., 383 A.2d at 179. The Pennsyl-
vania court held that the defendant court
not waive his right to challenge the death
penalty statute, reasoning:

[T]he waiver concept was never intend-
ed as a means of allowing a criminal
defendant to choose his own sentence.
Especially is this so where, as here, to do
so would result in state aided suicide.
The waiver rule cannot be exalted to a
position so lofty as to require this Court
to blind itself to the real issue—the pro-
priety of allowing the state to conduct an
illegal execution of a citizen. [Footnote
omitted.]

In short, where an overwhelming pub-
lic interest is involved but is not ad-
dressed by the parties, this Court has a
duty to transcend procedural rules which
are not, in spirit, applicable, to the end
that the public interest may be vindicat-
ed. Such an overwhelming public inter-
est—insuring that capital punishment in
this Commonwealth comports with the
Constitution of the United States—is
present here. (Emphasis added.)

Id., 883 A.2d at 181.

Under Faretta v. California, supra, an
accused’s Sixth Amendment right to waive
counsel is construed as a right personal to
him. However, the authority to prescribe

punishment and establish sentencing guide-
lines, particularly in capital cases, must be
done within the proscriptions of the Eighth
Amendment and such power is vested in the
State and can not be independently exer-
cised by the accused. See Hayes v. United
States, 238 F.2d 318 (10th Cir. 1956); Com-
monwealth vy. McKenna, supra. Specifical-
ly, the right to pro se representation in a
criminal proceeding is personal to the de-
fendant through the Sixth Amendment, and
is separate from the Eighth Amendment
objective of the State to be apprised of all
relevant circumstances of an offense, the
defendant, and the victim, before imposi-
tion of the death penalty.

The right of pro se representation is not
an open invitation to evade the statutory
intendments and the pronouncements of the
United States Supreme Court which man-
date meaningful and plenary bifurcated
criminal proceedings. The sentencing tri-
bunal, charged with the duty of insuring
that justice be achieved, see Brady v. Mary-
land, 373 U.S. 88, 88 S.Ct. 1194, 10 L.Ed.2d
215 (1963), should have heard the mitigat-
ing circumstances Bishop’s standby counsel
so zealously sought to present. Inevitably,
the expense of its failure to do so, and my
brethren’s affirmance of that error, will be
further protracted proceedings in the feder-
al system.

I dissent. I would reverse and remand
for further sentencing proceedings before
the same panel.

W
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276 «Nev. 597 PACIFIC REPORTER, 2d SERIES

tencing hearing. Appellant claims the tri-
bunal erred because (1) it should have heard
evidence concerning mitigating circum-
stances; (2) some of the evidence used to
prove aggravating circumstances had been
unconstitutionally obtained; and (8) the
death penalty constitutes cruel and unusual
punishment. We disagree.

1. ‘ While a defendant must be given the
opportunity to present evidence of whatev-
er mitigating circumstances may be rele-
vant to either the particular offender or the
particular offense before a death penalty
can be imposed, Lockett v. Ohio, 488 U.S.
586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978);
Roberts v. Louisiana, 431 U.S. 638, 97 S.Ct.
1998, 52 L.Ed.2d 637 (1977); Woodson v.
North Carolina, 428 U.S. 280, 96 S.Ct. 2978,
49 L.Bd.2d 944 (1976); Smith v. State, 93
Nev. 82, 560 P.2d 158 (1977), a defendant
must also be allowed to represent himself if
he so elects. Faretta v. California, supra.
Cf. Ingle v. State, 92 Nev. 104, 546 P.2d 598
(1976).

[1] Even though the offense for which a
defendant is being tried may carry a penal-
ty of death, the defendant must be allowed
pro per representation. People v. Teron, 23
Cal.3d 181, 151 Cal.Rptr. 653, 588 P.2d 773
(1979);7 Thomas v. Superior Court, 54 Cal.
App.3d 1054, 126 Cal.Rptr. 830 (1976); Com-
monwealth v. Davis, 479 Pa. 274, 388 A.2d
324 (1978). In Commonwealth v. Davis,
supra, a case which was tried before a jury,
the district court judge advised the pro per
defendant, outside the presence of the jury,
that he would be entitled to the “age of the
offender” mitigating circumstances; never-
theless, the defendant decided not to
present any argument to the jury. On ap-
peal, the Pennsylvania Supreme Court held,
citing Faretta, that it would have been con-
stitutional error for the judge to have re-
fused Davis his right to represent himself.*
388 A.2d at 328.

7. The California Supreme Court has recog-
nized, without resolving, the issue of a defend-
-ant’s right to self-representation in a death pen-
alty hearing. People v. Teron, 23 Cal.3d 131,
151 Cal.Rptr. 653, 588 P.2d 773, 779, n. 7 (Cal.
1979); Rockwell v. Superior Court, 18 Cal.3d
420, 134 Cal.Rptr. 650, 556 P.2d 1101, 1114, n.
14 (Cal.1976).

[2,3] In the case at hand, Bishop had
ample opportunity to present evidence of
mitigating circumstances; however, he
made it clear that he did not want to
present or have standby counsel present
such evidence. He had a Sixth Amendment
right not to have counsel forced upon him.
Faretta, supra. When a defendant know-
ingly and voluntarily waives his right to
counsel, as here, his refusal to present a
defense does not negate his pro per election.
People v. Teron, supra. “Under Faretta,
the state may not constitutionally prevent a
defendant charged with a commission of a
criminal offense from controlling his own
fate by forcing on him counsel who may
present a case which is not consistent with
the actual wishes of the defendant.” Curry
vy. Superior Court, 75 Cal.App.3d 221, 141
Cal.Rptr. 884, 887 (1977). For this reason,
the sentencing tribunal did not err when it
did not delve into the mitigating evidence
referred to by the standby counsels.

[4] 2. NRS 175.552 provides in part
that during the penalty hearing, “[n]Jo evi-
dence which was secured in violation of the
Constitution of the United States or the
constitution of the State of Nevada may be
introduced”. Appellant claims that such
evidence was used to prove aggravating
circumstances. However, since the appel-
lant failed to object or otherwise protest
the presentation of this evidence, and on its
face it was not clear that the evidence was
unconstitutionally obtained, we need not
consider its admissibility on appeal. Cf.
Guynes v. State, 92 Nev. 693, 558 P.2d 626
(1976); Hampton v. State, 85 Nev. 720, 462
P.2d 760 (1969).

[5] 3. Appellant argues that the death
penalty is cruel and unusual punishment
and is therefore unconstitutional. The Ne-

8. The jury sentenced Davis to death. However,
on appeal the court commuted the sentence to
life imprisonment because the statute under
which Davis had been sentenced had been pre-
viously declared unconstitutional.

BISHOP v. STATE Nev. 277
Cite as 597 P.2d 273

vada statutes authorizing the imposition of
the death penalty are similar to the Florida
statutes which were found to be constitu-
tional in Proffit v. Florida, 428 U.S. 242, 96
S.Ct. 2960, 49 L.Ed.2d 913 (1976). The Ne-
vada statutes provide for a consideration of
any mitigating factor the defendant may
want to present. NRS . 200.035(7). Cf.
Lockett v. Ohio, supra. The imposition of
the death penalty in’this case offends nei-
ther the United States Constitution nor the
Nevada Constitution.

[6] 4. After a careful review of the
record we conclude that appellant’s sen-
tence was. not imposed under the influence
of passion, prejudice or any arbitrary fac-
tor. Furthermore, there is sufficient evi-
dence to support the finding by the sentenc-
ing panel of five aggravating circumstanc-
es. Considering both the crime and the
defendant, we conclude that the death pen-
alty is not excessive or disproportionate to
the penalty imposed in similar cases in this
state. E. g., State v. Sala, 63 Nev. 270, 169
P.2d 524 (1946).

Judgment affirmed. See NRS 176.505.°

MOWBRAY, C. J., and THOMPSON, J.,

concur.
GUNDERSON, Justice, concurring:

I concur fully in the views expressed by
Mr. Justice Batjer; however, I wish to add
one observation.

Unless the U.S. Supreme Court limits pri-
or declarations, I think we must assume
that the right of an accused to act as his
own defense counsel carries the right to
make usual choices concerning tactics and
strategy. Many trials present hard choices
concerning what evidence should be ad-
duced on various issues. Whether particu-
lar evidence will “mitigate” or aggravate
the criminality of a generally known set of
circumstances is, often, a question on which

9. NRS 176.505 provides:

“When a remittitur showing the affirmation
of a judgment of death has been filed with the
clerk of the court from which the appeal there-
from has-been taken, the court in which the
conviction was had must inquire into the facts,
and, if no legal reasons exist against the execu-

reasonable minds differ. Thus, I think the
majority is correct in concluding that appel-
lant’s decision cannot be viewed as “waiv-
ing” evidence of “mitigation.” Such a char-
acterization—which assumes that counsel,
rather than the appellant, necessarily knew
best—is contrary to the concept of Faretta
as thus far articulated.

If the district court had permitted stand-
by counsel to introduce evidence over the
appellant’s objection, and then had sen-
tenced appellant to death, we would now
face the contention that the court had prej-
udicially interferred with the - accused's
right to represent himself.

MANOUKIAN, Justice, dissenting in
part:

Respectfully, I dissent from that part of
the majority opinion which holds, “the sen-
tencing tribunal did not err when it did not
delve into the mitigating evidence referred
to by the standby counsels.” Although I
have no quarrel with the imposition of the
death penalty per se, the fundamental re-
spect for humanity which underlies our sys-
tem of justice demands that I acquiesce in
the imposition of the penalty only upon a
procedurally clean record. My brethren af-
firm the imposition of the death penalty, in
disregard of the critical procedural infirmi-
ty which infects this case, and, in my view,
in violation of our own statutes and the
pronouncements of the highest Court of the
land.

The majority reasons that because Faret-
ta v. California, 422 U.S. 806, 95 S.Ct. 2525,
45 L.Ed.2d 562 (1975), permits self-repre-
sentation and because appellant chose to
proceed without counsel, he cannot now be
heard to complain of any right he waived,
no matter how important the right and
regardless of the drastic consequences of
the waiver. I disagree with the court’s

tion of the judgment, must make and enter an
order that the director of the department of
prisons shall execute the judgment at a speci-
fied time; but the presence of the defendant in
the court at the time the order of execution is
made and entered, or the warrant is issued, as
in this section provided, is not required.”

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Brown said he had found the defend-
ant guilty of murder in the first de-

age and that that act had been “wil-

ul and premeditated.” p
“Every move by the defendant since

his escape from Monroe reformatory
as the commission of a_ felony,”

Ww.
Judge. Brown declared. “This cer-

tainly does not indicate any regard for
society or the lives of others. . . . The

murders of Captain Geach and Ser-

eant Glass were deliberate, cold-
looded and ruthless. They indicate
a complete disregard for life—in fact,
they could be referred to as whole-
sale slaughter.”

As Judge Brown pronounced the
death sentence, Blackwell stood fip-
gering the bottom of his suit coat
nervously. The judge said: “I sen-
tence you to death to be administered
by lethal gas at the state prison some
time during the week of March = 14
to 20.” Blackwell turned pale but
showed no change in outward ex-
pression.

The death sentence was not carried
out as scheduled due to the filing of
an appeal on Blackwell’s behalf. by
his attorney, Ernest Brown (no rela-
tion to Judge Brown). After several
postponements, the case finally was

a ahr i Se aa

Din

heard by the Nevada State Supreme
Court et Carson City on June 22
1948. Defense Attorney Brown asked
the court to commute Blackwell’s
sentence to hfe imprisonment, con-
tending legal error because one judge
heard his or and then disqualified
himself. decision has not been
handed down at this writing, but is
ye soon.

homassen and Blake were not sen-
tenced until January 23, 1948. Tho-
massen sig en was charged with
first degree murder along with Black-
well, but the district attorney’s office
asked that his trial on this charge
be vacated to ah indefinite date. In-
stead, Thomassen pleaded guilty to a
robbery charge and was sentenced to
a term of from five to 50, years in Ne-
vada state prison. Blake also pleaded
guilty to a robbery charge and was
sentenced to a term of from five to 40
years in state prison. Sentences were
pronounced by District Judge A. J.
Maestretti. In vacating’ Thomassen’s
trial on the murder, charge, the dis-
trict attorney’s. office.; made. sure -he
will serve a long term, since the mur-
der charge will hang ‘over , him
indefinitely. ais ge at
THe END

REAL
DETELTIVE

“What happens between you and
your wife is no concern of ours,”

Smillie told him. “We’re not in the -

home-wrecking business. If you can
establish an alibi for the week end
of the murder, you’ll be in the clear.”

“Thank God for that,” Wooster
blurted. “I and my entire family
were in Philadelphia at the’time. We
drove there Friday evening and came
back on Monday.”

. The man was released from custody
when a. telephone call to the homie of
his wife’s sister in Philadelphia veri-
fied his. account of the week end visit.

‘But Lady Luck was smiling with con-

tinued favor on the forces of law and
order.- The. soldier in whose com-
pany Miriam Green had been seen on
the Thursday prececien he death was
found and identified. But the youth
was able to prove that he had been in
camp on the. week end of the murder.

“Blind alleys,” : Scirica said dis-
yee 4 “Every time we turn up

suspect he slips out of our hands
like a greased pig!” - i,

“We must have proof,” Smillie re-
minded him, “By eliminating false
suspects, we're tightening. the noose
about the real killer.”

An unsuccessful effort was made to
locate the key to the vietim’s apart-
ment which Wentzel claimed to have
thrown away. Meanwhile, other offi-
cers continued their tedious search for
the owner of the death snood. But
this, like every other phase of the in-
vestigation, appeared doomed to fail-

ure. ‘

Considerable newspaper publicity
had been given to the scarf, however.
And finally a young woman who iden-
tified herself as’ Joyce Mogel of
Limerick’ Center, claimed ownership
of the silken garrote. '

“I lost it on December 6,” she told
the surprised officers, “while visiting
my fiancé in Pottstown.”

Death Takes a
Strangle Hold .

(Continued from page 31)

“Have you any idea how it got into
Mrs. Green’s apartment?” Smillie
asked.

“She could have found it,” Miss
Mogel suggested. “You see, my fiancé
lives on Chestnut Street, only a few
doors from where Mrs. Green was

: killed.”

After the young woman had posi-
tively identified the scarf as her own,
Smillie called a conference with his
men. “Here’s what we have to go on,”
he told them, “and it isn’t much.”

Briefly, he outlined every phase of .

the baffling case. “Of all suspects,
Wentzel alone failed to place himself
entirely in the clear,” Smillie con-
cluded. “He had an opportunity to
commit the crime—and a motive. We
have witnesses who will testify that
he promised to divorce his wife and
marry Miriam Green. Wentzel him-
self stated that she threatened to
marry Wooster—a man already mar-
ried—if he: didn’t live up to his
promise, ‘
“Although unaware of his rival’s
‘marital status, Wentzel still balked at
divorce. I have-no doubt but that

- Miriam Green threatened to reveal

their affair to his wife, if he didn’t
comply. That provides him with a
motive for murder.”

The evidence was circumstantial.
and admittedly. weak. But Gerald

Wentzel was charged with murder,
nevertheless, and on April 7, 1947, he
went on trial for his life.

Assistant District Attorney Scirica,
assigned to the case,. conducted his
prosecution expertly. Step by step,
he reconstructed the murder as it was
believed to have occurred.

“Wentzel,” Scirica declared, “went
to this woman’s home and used his
key to unlock the door. He didn’t find
her dead, as claimed. Instead, she was
very much alive and they had several

- drinks together—as is proved by the

whisky bottl
found by th
_ It was all
jigsaw puzz)
iece fitted :

reen had «
wanted Wer
marry her.
quarreled. R
and thus jec
the little co
gled his pe
scarf whic}
found and fk

* & FTERW
“this n
tective scree
to give the a
He .then wi
and left it st
his big mist
drove the te!
matically se
overheating
Chief Di
Rosenberry
attack. Ge)
known ‘and
who believe
Relatives of
for the def
belief that s
Friday, De
was in the
There was
from Frida
when the b
Miriam Gre
tomary ph

- What had

night visit
Dr. John
“IT cannot,”
on the mon
But the s
sponse to <
thermostat
ing system
into action
am Green's
admit icy }
the proof
this had tal
midnight S
penalty wa
circumstant
involved..
returning a
second deg)
Defense «
cision. Wer
have been
murder or
appeal for
Judge Geo:
precedentec
amount of
in the histo
found guilt
from prisor
_ Gerald W
nearly one
a new trial
1948, when
handed dov
main conte
part, “was
Mrs. Green
If this con
by the jur:
have died
defendant °
guilty.”
On Apri
was senter
twenty ye
Stunned b:
denounced
carriage of

a to
Chief Justi

SBR a

se eS


time for the crime,
wanted as a parole
time of his arrest on
rge.

: The names Angelo
‘een in the foregoing
are fictitious in order
dentities of innocent
ed by the police. The
ersey and Dick and
also fictitious.

ed to snuff out other
believe he will serve - -

ers”

> was too large for
After this decision,
und town and visited
‘'s for a few drinks.
por mid-afternoon,

‘eared up in Thomas-
g!” he rasped as they
: table away from the
eno’s many drinking
“No use wasting any
we have to. I want

ed Blake.

u_ guys!” Blackwell
been thinkin’, and I
doin’. You saw that
reet called Charlie’s,
Charlie’s Cocktail
ith Virginia street.)
od to me. It’s got a
» gonna take it first.
I'll goin. You go to
the bar and I'll stay
| order drinks, and
on ’em. Blake, you’ll
'? Okay, c’mon, we’ll

ely 3:30 p.m., Blake
*k_ on a side street
s Cocktail Lounge.

‘or running,” Black-
as he and Thomas-

stood at the bar just
loor and ordered a
n sauntered to the
ar and did likewise.
xroprietor and bar-
risch, found himself
ackwell’s pistol. The
atrons in the bar
were covered by

oor keys!” Blackwell
ch. “This is a stick-
y and you'll be all
> get excited. Hand
pronto!”

Tisch did as he was
ell locked the front
tail lounge and tore
‘phone wires.

skly moved behind
the cash register and
s and forced Frisch
h from his pockets.
h drawers, Thomas-
of silver coins. He
in his pockets, then
g of silver. It was
o cradle it with both

t's go!” staccatoed
y, the two sidled to
.ckwell covering the

‘using your rod. Don’t for et—open up

~

bartender and his customers while
aneenmenes proceeded through the
oor.

“Stay where you are and don’t move
for five minutes! And the first one
that sticks his noggin out this door is
gonna get it blasted off!” Blackwell
warned. Then he tossed the front
door keys just inside the rear door-
way, ducked outside and followed
Thomassen around the corner to-where
Blake was sitting at the wheel of the
Buick.

“Scram outa here!” Blackie direct-
ed, darting a backward glance over his
shoulder.

Respondin, smoothly, Blake speed-
ily projected the car into a lane of
traffic. For a short time, they drove
around town. Blackwell theorized
that all roads leading from Reno
would be closely watched after the
holdup, sohe felt it was safer to stay
within the city.

“What’s the take add up to?” Blake
asked when Blackwell and Thomassen
had subdued their excited nerves.

“Plenty!” replied Thomassen. “This
damn bag here is heavy. We' must
have a couple grand, guess, eh,
Blackie?” :

“Yeah, might be, all right.”

“Geez, that was an easy go—like |
shooting fish in a barrel. On y thing
tough about it was acking out that
silver. I never had enough of the
stuff before to know it was that heavy,
by cripes.” ;

“They’re not all that easy,” re-
minded Blackwell, “We were lucky.
Next time it might be ‘different. Re-
member, if we ever get in a jam, start

on ’em and we'll get th’ hell out. But
the thing to do now is to grab some
other clothes. There’s a store there,
Blake. Park the care” \

As soon as Blackwell and Thomas-
sen had left Charlie’s bar, Frisch—the
proprietor—summoned Reno city po-

ice. Detective Captain Joseph Le-
Roy Geach was given the description
of the two robbers and forthwith
spread a wide alarm. Frisch reported
the loot totaled approximately $2000.

As Geach and his assistants studied
all details of the holdup, Blackwell
and his two cohorts were in the cloth-
ing store buying complete changes of
rough clothing. After ay vam, * the
purchases, they returned to the Buick
and Pati them inside. Blackwell
and Thomassen got in the car, while
Blake went to oe up a couple of pint
bottles of Old Crow bourbon. Durin
Blake’s brief absence, Blackwell an
Thomassen plotted a second holdup.
This time it was to be the U. S. High-
way No. 40 tavern at 640 East Fourth.
Street. —

“Luck’s with us, so we might as well
get another one,” Blackwell said as he
filled in for Blake after the latter re-
turned with the liquor. “We’ll use
the same approach as we did at Char-
lie’s, only this time park the car
closer, Blake. We may need it in a
helluva hurry.” :

“Gimme a pull outa one -of those

pints, first,” Thomassen interjected.
' At 6:25 p.m., police investigation of
the Charlie’s bar holdup was intey-
rupted by a telephone call from Wal-
ter Poncino, bartender on duty at the
U. S. Highway No. 40 tavern.

“T’ve just been held up by two tough
eg 2 punks!” Poncino almost yelled
into the telephone instrument. .

“What’s their descriptions?” the
desk sergeant inquired. - ;

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Cea py,


U. S. Highway
1e other seemed
> was the third
i bought cloth-
rt.
tel clerk not to
s, Captain Geach
on for question-

ing the tavern
nd his compan-
\otel, taking with
ot from the two

their newly-
“or two or three
nd drinking Old

xt away with it
qassen. “We got
‘e now to get th’

—ha, ha!” cack-

ul right,’ agreed
1 what, though—
and take a few
sund the bars and
vou can pick up.”
there was no
uch as Blake had
iim and Thomas-
formed the two

of November 7,
g with Detective
ene Cowan and
outside the door
‘uite occupied by

knocked sharply
spoke out: “Open
and want to talk
ad on the door a
the officers could
ig out of bed.
[he cops!” whis-
gripping his .38
istol. Still again
and Thomassen
» of the bed and

ach repeated his
p, or we'll break
9 on it!”
key in the lock
c started to open.
Sergeant Glass
ing the door back
Sergeants Cowan
- on their heels.
Thomassen was
door with his pis-
r officers entered.
wan and Read
behind the door
che weapon. While
astled with Thom-
n, Captain Geach
started into the
this room, Black-
covers over him.
’ there!” Captain
» reached forward
ff Blackwell.
1 came up shoot-
yped from his .38-

_

1 automatic like a—

* gun.
. the body, the 56-
aptain slumped to
rtally wounded.
who was directly
fell. He died al-
n the same bullets
The missiles tore
»y passed through

ll began his blast
it Cowan wrested
massen. Turning,

ant held Thomas-

Siete t

Ty sen’s pistol in his left hand and, rushed

" court

“a ah Sk

across the room to the aid of his fel-
low officers, firing at Blackwell as he

ame. ‘ ‘

One of the four shots smacked
Blackwell in an arm and the chest.
Abruptly, Blackwell threw his gun to
the floor.

“I’m hit! I’m hit!” the youth shouted.
“Don’t shoot .. . I’m through!”

All the fight had been taken out of
him, and he lay moaning on the bed.
In the other room, Thomassen re-
mained subdued in the hands of Ser-
geant Read. :

Doctors were hurriedly summoned,
but Captain Geach was beyond aid,
and he died in an ambulance en route
to ‘a hospital.
year-old assistant,, Allen Glass, was
removed to a funeral home. 4

Blackwell, his’ bravado utterly dis-
solved, was taken to Washoe General
ron Ha and placed under 24-hour

ard. ‘

At the time of the shooting, Blake
was visiting the bars and gambling
places around the city in an effort fo
pick up any information the police
may have let drop in connection with
their investigation of :the robberies.
When he returned to the hotel about
an hour after the affray, he was taken
into custody. Like Blackwell and
Thomassen, he readily admitted par-
ticipating in the robberies but only as
driver of the car.

In Décember, Blackwell went be- [|

fore District Judge Taylor Wines of
Elko, and entered a plea of guilty to
the slaying of Captain Geach. “I
saved my slugs for the coppers,” he
said, “and I’m glad. I’ve no use for
’em. Now I want a quick trial. Let’s
get it over with.” Delay was caused,
however, when Judge Wines disquali-
fied himself on the grounds that his

ersonal feelings against capital pun-
ishment were such that they “amount-
ed almost to pre-judging of the case.”

BRUACKWELt's attorneys, Ernest
Brown of Reno and William
Goodwin of Tacoma, then took the is-
sue to the Nevada State pen, pow
Court, seeking a writ of mandamus
to force Judge Wines to sentence the
defendant. They contended the jur-.
ist had accepted jurisdiction and tech-

_nically could not disqualify himself.

On December 31, the high court
denied the writ of mandamus and
for the first time in Nevada’s judicial
history a murder trial was left with-
out a judge to-hear it—an.unusual sit-
uation. ubsequently, Judge Wines
named District Judge Merwyn H.
Brown of Winnemucca to take his
place. .

Fully recovered from his wounds,
Blackwell went to trial on first de-
gree murder charges on January 5,
1948, before. Judge Brown.

In his final remarks before: the
received the case, Washoe
County District ego 5 Harold Ta-
bef asked the judge to “help the state.
meet its obligations to society” by im-
posing the death sentence on Black-
well. “Tell the people of the West
that we don’t want hoodlums here at
Reno,” Taber requested. Continuing,
the prosecutor added: “The only way
to impress that in the minds of would-

nmen is to find David Blackwell
guilty of first-degree murder and
sentence him to death.”

After two days of testimony, Black-
well was sentenced by the court to be
executed in the gas chamber of Ne-
vada state prison at Carson oy: In
pronouncing his decision, udge

. ‘at pit Biwlt ae ° " %, whe

Pa oR Ee eae ee
hone i a ce oe.

The body of his 36-.

_ IN
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Frequency of Marital Relations.
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Conjugal ‘‘Rights’’ of the Husband.
Col fr pa “Rights” of the Wife.
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Bex Attraction Alone Not Enough,
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Sex Ignorance Can Do Much Harm.
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tome Pitfalls of Marital Love Life.

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When a Baby is Wanted.

Frigidity in Women.

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Intimate Feminine Hygiene.

How Age, Sex Instinct, and Health Affect Sex Life.
Importance of Satisfactory Conjugal Relati

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Old Man, Satan, Monkey, Blackface,Clown, Idiot,

replied. “The one who did the or-
derin’ around was kind of dark, with a
wide bridge in his nose like it’s been
broken a couple of times. The other
one was light and had curly blond
hair and sort of a baby mouth. He was
a bit shorter than the other.fellow and
heavier in build. They jerked the
phone out before they left. I’m using
another.”

“How much’d they: get?”

“Around :$1500. Cleaned out all of
‘our check-cashing reserve.”

“Okay, we'll be there in a minute
or two.”

A radio alarm was broadcast im-
mediately, and information on the
new holdup was quickly relayed to
Captain Geach. From Poncino’s story,
it was evident that the same men had
pulled this job as had held up Charlie’s
Cocktail Lounge three hours earlier.
All tactics were similar.

WYLORD of the robberies got around
* Reno rapidly. To one person
—Mrs. Tom Lambert—an incident that
sy gy that afternoon was particu-
larly significant. Mrs. Lambert was
_ the clerk in the clothing store who had
sold the numerous articles of wearing
apparel to Blackwell, Thomassen, and
Blake after the first robbery.

Mrs. Lambert not only was an alert.
saleslady, but she was the wife of
Deputy Sheriff Tom Lambert, who a
few months earlier had -been critically
wounded while investigating two men
wanted for questioning in a highway
robbery. And when she heard of
the robberies and noted ‘the suspects’
description, she dialed police head-
quarters,

“This is Tom Lambert’s wife,” she
told Captain Geach. “I think I’ve got
a lead for you on those holdups.”

tain said, his eyes squinting thought-
fully behind his rimmed glasses. “‘Let’s
have it.”

“Two of three young men'who came
into the store this afternoon answer
the description of those robbers,” Mrs.
Lambert proceeded. “I’m sure they’re
the ones. Just the way they acted
made me suspicious of them, and I’m
convinced now that they are the ones.”

“What was: the third man like?”

“He was tall and wore _ sports
clothes. His hair was light-—and
combed straight back in a long pom-
padour, and he had a habit of agree-
ing to whatever the others said. They
all bought outdoor clothing and talked
about going on a trip... Yes, I’d be
|.able to identify them again.”

Because the time of the trio’s pur-
chases was between robberies, Cap-
tain .Geach “came to the conclusion
the suspects in all probability were
squatted somewhere within the city,
since all highways leading. from Reno
were under the closest surveillance
and'no one of the youths’ descriptions
had been seen leaving.

“Make a thorough check of all ho-
tels, motels and auto courts, and room-
ing houses, around town .and see if
anyone fitting these descriptions is,
or has been registered,” Captain
Geach directed Detective Sergeant
Allen A. Glass. “I think these fel-
lows are right under our nose some
place.” .

‘ By now virtually the entire Reno
force had turned to on the case. First
development came when the desk
clerk at the Carleton Hotel disclosed
that three youths who might be in-
volved were registered. Descriptions
of two of them appeared to jibe with

those of the pair who held up Charlie’s

“Fine, fine, Mrs. Lambert,” the cap--

Cocktail Lounge and U. S. Highway
No. 40 tavern; and the other seemed
to be the youth who was the third
member of the trio that bought cloth-
ing from Mrs. Lambert.

Cautioning the hotel clerk not to

- reveal their suspicions, Captain Geach

formed a plan of action for question-
ev, the’ youths.
eanwhile—following the tavern
holdup—Blackwell and his compan-
ions returned to the hotel, taking with
them part of the loot from the two
robberies and also their newly-
urchased clothes. For two or three
ours, they sat around drinking Old
Crow and’ Coca Cola.
a “Looks like we got away with it
okay,” chortled Thomassen. “We got
enough do-re-me here now to get th’
hell outa the country.”
“Yeah—slick work-—ha, ha!” cack-

-led Blake.

“So far, so good, all right,’ agreed
Blackwell. “Tell you what, though—
Blake, you go out and take a few
soundings. Stroll-around the bars and
joints ‘and see what you can pick up.”
Blackwell thought there was no
danger in this inasmuch as Blake had ,
not been seen with him and Thomas-
sen when they performed the two
capers.

About midnight of November 7,
Captain Geach—along with Detective
Sergeants Glass, Gene Cowan and
Daryl Read—arrived outside the door
of the second-floor suite occupied by
the trio.

' rapt ne GEACH knocked sharply

on the door and spoke out: “Open
up! We are officers and want to talk
to you.” He pounded on the door a
second time. Inside, the officers could

‘ hear someone getting out of bed.

“Geez, Blackie! The cops!” whis-
pered Thomassen, gripping his .38
caliber automatic pistol. Still again
came the pounding, and Thomassen
slipped off the edge of the bed and
over to the door.

Then Captain Geach repeated his
command. “Open up, or we’ll break
this door down! Step on it!”

In a moment, the key in the lock
turned, and the door started to open.
Captain Geach and Sergeant Glass
strode inside, thrusting the door back
as they went in. Sergeants Cowan
and Read were right on their heels.

Planning a trap, Thomassen was
standing behind the door with his pis-
tol ready as the four officers entered.
But Sergeants Cowan and Read
pinned him-roughly behind the door
before he could use the weapon. While
these two officers wrestled with Thom-
assen to disarm him, Captain Geach
and Sergeant Glass started into the

‘adjoining room. In this room, Black-

well lay in bed with covers over him.

“Come on out of there!” Captain
Geach ordered as he reached forward
to pull the covers off Blackwell.

Instead, Blackwell came up shoot-
ing. Seven shots ripped from his .38-_
caliber super special automatic like a
burst from a “burp” gun. ,

Struck by slugs in the body, the 56-
year-old detective captain slumped to
the hotel carpet, mortally wounded.

Sergeant Glass, who was directly
behind Geach, also fell. He died al-
most instantly—from the same bullets
which killed Geach. The missiles tore
into Glass after they passed through
Geach’s body.

Even as Blackwell began his blast
ef gunfire, Sergeant Cowan wrested
the pistol from Thomassen. Turning,
the detective sergeant held Thomas-

LRAT ada, Wl AER Cha

\

it ae :
WT A arte Sha oe ae eae
ARC 5 NS A RE elt lls

i \ ¥
/- gen's pistol in hi

across the room
low officers, firi
came.

One of the
Blackwell in a
Abruptly, Black
the floor.

“T’m hit! I’m h
“Don’t shoot. .

All the fight }
him, and he lay
In the other r
mained subduec
geant Read.

Doctors were
but Captain Ge
and he died in e
to ‘a hospital.
year-old assiste
removed to a fi

Blackwell, hi:
solved, was tak:
Hospital and rf
guard. ,

At the time c
was visiting th:
places around t:
pick up any ir
may have let dr
their investigat
When he returr
an hour after th
into custody.
Thomassen, he
capeney in the
driver of the ca

In December
fore District Ji
Elko, and enter
the slaying of
saved my slugs
said, “and I’m
‘em. Now I wa
get it over witl
however, when
fied himself on
personal feeling
ishment were st
ed almost to pri

LACKWEL])

Brown of
Goodwin of Tac
sue to the Ne
Court, seeking
to force Judge
defendant. Thi
ist had accepted

_nhically could n

On Decembe
denied the wr
for the first tim
history a murd:
out a judge to-h
uation. ubsec
named Distric'
Brown of Win
place.

Fully recove:
Blackwell wen
gree murder c
1948, before. Juc

In his final
court received
gem J District
ber asked the ji
meet its obligat

* posing the deai

well. “Tell th:
that we don’t v
Reno,” Taber r
the prosecutor
to impress that
be en is ti
ilty of first
sentence him t
After two da:
well was sente!
executed in th
_ vada state pris
pronouncing


768 Nev,

structions to the effect that if the de- .
“ fendant was found, on account of in- |
- toxication or other cause, not to have |
“entertained an intent to kill, he could |

not be convicted of the crime charged. —

This does prove that there must have |
been some evidence of intoxication,

but it does not prove that there was any i

evidence of such a degree of intoxica-

tion as would have rendered the de-
fendant incapable of entertaining or ..
forming an intent to kill.”

See also the. case of State; v. ‘tHiioe 223
Iowa 1241, 275 N.W. 10, at pages 19, 20, re-
ported in 114 A.L.R. 959, at. page 973. In
the above case the court held “that partial
drunkenness does not make impossible the
formation of a criminal intent” and “the
evidence is insufficient to prove the defend-
ant was so intoxicated that he was unable
to form a criminal intent.” In the above
case the same contention was relicd upon
by appellant in that case; that the instruc-
tion was not complete and it did not advise
the jury they might consider intoxication
of defendant as reflecting on ability to
manifest the required intent to kill. The
instruction in that case makes no reference
to the consideration of the mental condition
of appellant, whereas Instruction No. 30 in
the case at bar specifically provides that the
jury can so consider evidence of intoxica-
tion and whether the defendant was sane
or insane at the time the alleged offense was
committed.
case testified “I was not awful drunk, but
as far as myself I would consider I was
pretty drunk”, and as pointed out, no such
testimony was elicited from the defendant
in the case at bar, as such was not the
fact. In. the Heinz case, the court held
that partial drunkenness does not make im-
possible the formation of a criminal intent
and the evidence was insufficient to prove
defendant was so intoxicated that he was
unable to form criminal intent. It was the
court’s ruling that no error could be predi-
cated on the instruction given,

Therefore, under the facts of the case, in
our opinion, the giving of Instruction No.
30 by the trial court did not constitute prej-
udicial error.

The appellant in the Heinz.

he Rs as amie a

265 PACIFIC REPORTER, 21 SERIES

[3] Defendant next contends that the
trial court erred in refusing to give de-
fendant’s proposed Instruction C, ‘Proposed
Instruction C reads as follows: ~

aif you find from a preponderance
that the defendant, at the ‘moment of
the killing, by reason of intoxication of
insanity was incapable of forming in
his mind and had not formed in his
mind any intention to commit either
robbery or murder, then you must find
the defendant not guilty.”

The trial court refused the foregoing in-
struction proposed by defendant on the
ground that it does not correctly state the
law as to intoxication,

Defendant contends that said instruc:
tion properly states the law and cites 23 C.J.
S., Criminal Law, § 1201, page 757, and the
numerous citations thereunder, in support
of his proposition,

From a careful examination of the cases
cited by defendant in support of his propo-
sition, the ¢rimes with which the defendants
were charged did not involve crimes in
which a lesser included offense required no
intent. It will be noted in the case at bar
that Instruction No. 8 given at the request
of defendant and instructions on all lesser
included offenses of the crime of murder
were given to the jury. Included among
these instructions was Instruction No. 24 on
involuntary manslaughter, which specifical-
ly provides that an unintentional killing of
a human being in the commissions of an un-
lawful act or of a lawful act which might
probably produce such a consequence in an
unlawful manner, is involuntary man.
slaughter. Under the instructions proposed
by counsel for the defendant the jury would
have been precluded from returning a ver-
dict of guilty of involuntary manslaughter.

As stated in 23 C.J.S., Criminal Law,
§ 1334, page 993, “It is proper to refuse a
request for an instruction which does not
correctly state the law.” Sce also: State
v. Sheeley, 63 Nev. 88, 97, 162 P.2d 6;
State v. Skaug, 63 Nev. 59, 68, 161 P.2d 708,
163 P.2d 130; State v. Burns, 27 Nev. 289,
294, 74 P. 983.

The court did not err in refusing to give
the above proposed instruction.

a

ose

cc
In


STATEv. BOURDLAIS.. ... Ney. 765
Cite as 265 P.2d 761 She .

leading to the grave connected with the
main highway. Defendant navigated under
his own power up the dirt road and needed
no assistance, and in the, opinion of the
arresting officers was not in any condition
that indicated he was under the influence of
alcohol. At the grave site, the defendant
and Dyer removed the earth from the body
of the deceased and the defendant was
taken into custody.

After being booked, defendant said:
"He’s dead, I killed him, and that is that.
I don’t want to say any more.”

Defendant was examined in the office of

the Clark County District Attorney on May

22, 1952, by Dr. G. W: Shannon, Assistant
Superintendent of Patton State Hospital,
a branch of the State of California De-
partment of Mental Hygiene. Based upon
that. examination, Dr. Shannon concluded
that defendant was sane; that he is a psy-
chopathic personality; that he had normal
mental development, intellectual develop-
ment, and was able-to tell the difference be-
tween right and wrong. ,

The evidence produced on behalf of’ de-
fendant is substantially as follows: ~~

He was born in 1927, in Marinette, Wis-
consin, of a large and impoverished family.
The family resided in a building which had
been used as a city poor house and was in
need of repair and which lacked the mini-
mum conveniences of running water, elec-
tricity, and inside toilet facilities. In 1942
the family of defendant was reported to
have been on the relief rolls since 1925;
the defendant’s father was crippled, unem-
ployed except for odd or part-time jobs as
a cook or bartender, and was an alcoholic.
Defendant’s mother was mentally retarded
and illiterate. An older brother, Francis,
was committed to an institution’ for the
feeble-minded for a period of more than
four years. .

Defendant’s childhood was one of severe

privation. At the age of eleven he stole a

bicycle, was apprehended, pleaded guilty,
and was placed on probation. In June,
1941, at the age of fourteen he was commit-
ted to the State Industrial School after
pleading guilty to a charge of car theft.
From June 1941, until July 26, 1951, except

for brief intervals, defendant was institu-
tionalized in the Industrial School, the Wis-
consin. Reformatory, or Wisconsin State
Prison, for stealing, violation of parole, or
attempted escape.

During this period of time defendant was
on three occasions (November 6, 1941,

August 14, 1946, February 13, 1947) sub-

jected to mental examinations .by Peter
Bell, M.D., examiner for the Psychiatric
Ticld Service of the Wisconsin State De-
partment of Public Welfare, During this
period of time defendant was twice placed

jn the Mendota Hospital in Wisconsin, an

institution ‘which provides treatment and
care for persons with mental illness, for the

‘purpose of medical diagnosis and treatment

and mental observation and treatment. He

was transferred to said hospital’ on Febru-
ary 7, 1942, after a suicide attempt, and re-
mained there until March 18, 1942, when he
was returned to the Industrial School. De-
fendant was later returned to the said hos-

‘pital for further-observation (the record
‘shows that defendant was there on August

14, 1942), and was subsequently returned to

‘the Wisconsin. School for Boys.

As a result of the examinations and ob-

servations aforesaid, (the first of which

took place when defendant was fourteen
years of age and the last. when he was nine-
teen) the examiner, Dr. Bell, reported that

defendant had a low normal mentality, At

age fourteen his mental age was deter-
mined to be thirteen and a half., At age

nineteen on. two separate occasions he

showed a mental age of thirteen years, six

months. He repeated the sixth grade at

the age of fourteen. Dr. Bell further re-
ported that defendant’s reasoning powers

‘were impaired and that his judgment was

defective. Dr, Bell’s report further showed
defendant to be unstable, preoccupied, in-
hibited, sensitive, devoid of good self-confi-
dence, immature obsessed of conflicts of

personal nature, self-conscious, rather mor-

bid and depressed, blocked in his thought
associations, -rather schizophrenically col-
ored in his reaction, and evaluated defend-
ant as having a neurotic character defect.
Dr, .Bell’s prognosis as to defendant’s fu-
ture was that it was poor and that defend-
ant’s future was dark. _


766 __ Nev.

Although defendant, at the time of Dr.
Bell’s examination was found to be unable
to evidence proper self control, he was
found to be able to distinguish _hetween
right and wrong.

We refer to the foregoing only for the
purpose of calling attention to the substance
of the evidence respecting defendant’s
childhood and family background and with
his institutional history which we deem nec-
essary to a full understanding of some of
the questions raised on this appeal.

With reference to his drinking on the
night of the shooting, defendant’s testimony
was somewhat at variance with that of oth-
er witnesses. He testified that after he and
Dyer had been picked up by Budzien, “I
seen him tip the bottle up and take a drink
and he offered it around and asked every-
body if they wanted a drink. Nobody ac-
cepted. I took the bottle and had a pretty
good drink.” When Budzien moved to the
back seat he “took a couple of more drinks,
handed the bottle over to me and I took a
couple of more drinks and I handed it back
to him. He set it on the floor by his feet
and then dozed off. * * * Whenever I
wanted a drink I didn’t want to wake him
up, so I would reach over and take a drink
and put the cap on and put it back.” After
securing the other bottle, “He took a drink
and I took a drink and he put it back on the
floor. No one else in the car was drink-
ing, just myself and Mr. Budzien. I think
we drank most of the liquor which was in
that bottle.’ Other than this defendant
gave no testimony as to the extent of liquor
consumed by him. He did not testify that
he became intoxicated.

Harry Dyer testified in part as follows:

“Q, Now as you moved along down the
highway, is it true that you lost your con-
cern over Vernon becoming intoxicated?
‘Acie 2 * *

“GQ, Was his speech coherent? A. Yes,
sir.

“Q, Did he speak plainly? A. Yes.

“Q. Were his eyes clear? A. I am
not sure of the condition of his eyes.”

Lloyd Bell, deputy sheriff of Clark Coun-
ty, testified in part as follows:

265 PACIFIC REPORTER, 2d SERIES

“Q. Now, officer Bell, while you were
walking with the defendant did you have
an opportunity to observe whether he was
steady on his feet A. Yes, sir.

“QO. How did he walk? A. He walked
straight up the road without help.

“Q. Was he standing erect? A. Yes.

“QO. Did you have an opportunity to ob-
serve whether there was a smell or odor
of alcohol on his breath? A. . There was
not. eps

“Q. Did you have an opportunity to ob-
serve whether or not his eyes were blood-
shot at that time? A. I din’t get too good
an opportunity to notice.

“Q. Did you have an opportunity to ob-
serve whether or not his speech was slurred
or thick? A. It didn’t appear to me to
be so. '

“Q, Did he speak coherently? A. Yes,

ne:

sir
Seven errors are assigned.

Defendant’s first assignment makes the
point that the court erred in giving Instruc-
tion No. 30. Instruction No. 30 reads as
follows:

“It is a well settled rule of law that
drunkenness is no excuse for the com-
mission of a crime. Drunkenness
forms no defense whatever to the fact ,
of guilt, for, when a crime is commit-
ted by a party while in a fit of intoxica-
tion, the law will not allow him to avail
himself of his own gross vice and mis-
conduct to shelter himself from the.
legal consequences of such crime. Evi-
dence of drunkenness can only be con-
sidered by the jury for the purpose of
determining the degree of the crime,
or for the. purpose of determining
whether the defendant was sane or in- ;
sane at the time the alleged offense was |
committed.”

Defendant contends that Instruction No.
30 does not fully and correctly state the
law with reference to drunkenness as a.de-
fense to the crime of murder because it
failed to advise the jury that they might
consider intoxication in determining the
existence of a specific mental condition ¢s-


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STATE v. BOURDLAIS

Nev. 767

Cite as 265 P.2d 761

sential to the commission of a particular
kind or degree of offense. , oa:
. Section 9966, N.C.L. 1929, provides: :

“Intoxication, When it May be Con-
sidered in Mitigation of Offense. § 17.
No act committed by a person while in
a state of voluntary intoxication shall
be deemed less criminal by reason of
his condition, but whenever the ac-
tual existence of any particular pur-
pose, motive or intent is a necessary
element to constitute a particular spe-
cies or degree of crime, the fact of his
_ intoxication may be taken into con-
sideration in determining such purpose,
“motive or intent.”

[1]. Tt will be noted from reading Sec.
9066 that it does not require that drinking
by the defendant must be considered by the
jury in the determination of a particular
intent necessary to constitute a particular
crime. The statute states the fact of in-
toxication of a person may be considered.

[2] In reading the ‘entire record in this
case we find that while there is some evi-
dence of drinking on the part of the de-
fendant, there is not a particle of evidence
contained therein to show that the defend-
ant was intoxicated at the time of the com-
mission of the crime. Upon this point the
only evidence is to the effect that he was not
intoxicated.

In the course of the trial not once did
defendant claim his mental condition was
confused to the extent that he had no in-
tention of killing. The transcript of testi-
mony fails to show any claim of intoxica-
tion or drunkenness on the part. of the
defendant. He testified he drank while he
was in the vehicle of the deceased, but he
did not assign this as a reason for his
haziness about facts until the revolver held
in his hand was discharged and he then
realized what he had done. In this respect
compare his testimony with that of every
other witness, including the testimony of
Harry Dyer, the defendant’s witness. Be-
cause defendant made it appear as if. he
were drinking from the bottle, Dyer testi-

fied that he was concerned about having de-.

fendant upon his hands in Las Vegas if he
became drunk, but as the group proceeded

on towards Las Vegas, Dyer testified he

lost all concern over defendant becoming —

intoxicated. Compare also his testimony
with that of Juszczak and Andrews, who
both testified to the defendants saying that
he was not drinking, but was placing his
tongue in the bottle to prevent consuming
any liquor. Compare this testimony with
that of Deputy Sheriff Lloyd Bell, who
testified that the defendant gave no ap-
pearance of having been under the in-
fluence of intoxicating liquor and no alcohol
was smelled on his person,

Defendant has referred to and cited the
case of State v. Johnny, 29 Nev. 203, 87 P.
3; State v. Jukich, 49 Nev. 217, 242 P. 590.
In the case of State v. Johnny, supra, there
was ample evidence of intoxication offered.
Witnesses testified that both defendants
were drunk and boisterous the whole day
and evening before the offense; that they
were so drunk that they needed the assist-
ance of each other to get along. In the
case of State v. Jukich, supra, the testi-
mony was not as conclusive as in the
Johnny case. However, the court gave in-
structions patterned on those given in the
Johnny case. This does not mean, how-

ever, that it would have been improper not

to so instruct if the evidence of the case
did not warrant such instruction. The in-
structions in each case, of course, must be
determined on the evidence adduced. As
pointed out, Section 9966 does not require
that evidence of drinking be considered in
determining a particular intent. In this re-
gard, attention is called to State of Nevada
vy. O’Connor, 11 Nev. 416, at page 424. The
court had this to say:

“The second and third instructions
refused were to the effect that if the

- defendant, at the time of the assault,
was so drunk as to be incapable of
forming or entertaining an intent to
kill, he could not be convicted as
charged. It is sufficient reason for
sustaining the. refusal of the court to
give these instructions, that there is not
a particle of evidence contained in the
record going to show that the defend-
ant was intoxicated at the time of the
‘assault. It is true that the court, at the
request of the defendant, gave other in-

ne en