BARBARA LOUISE HOWARD, Appellant, v. SHERIFF OF CLARK COUNTY, Respondent
Howard v. Sheriff
Zenoff, L, concurs.
BARBARA LOUISE HOWARD, Appellant, v. SHERIFF OF CLARK COUNTY, Respondent.
BARBARA LOUISE HOWARD, Appellant, v. SHERIFF OF CLARK COUNTY, Respondent.
No. 5245
January 12, 1967
422 P.2d 538
Charles L. Kellar, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Carson City, and Edward G. Marshall, Clark County District Attorney, and Earl Gripentrog, Deputy District Attorney, Las Vegas, for Respondent.
OPINION
By the Court,
Thompson, C. J.:
The state charged Barbara Louise Howard and Thomas Howard, her husband, with the murder of Police Officer William Fortye on October 28, 1966, at Las Vegas. After a preliminary examination, both were held to answer in the district court. They entered pleas of not guilty at the arraignment. A motion for severance was granted. A separate information was then filed against Barbara in the district court. Soon thereafter, she filed a petition for habeas corpus to be released on bail pending trial. Her application was denied and she appealed to this court for relief. We think that the showing made below by the state was insufficient to allow the court to deny bail. Therefore, on the day scheduled for the oral argument of this appeal, we ordered her release from confinement, upon giving bail in the sum of $5,000. This opinion is in explanation of that ruling.
Bail may be denied one accused of murder when, through evident proof or great presumption, it appears that the defendant has committed first degree murder. Nev. Const., Art. 1, § 7; Ex parte Wheeler, 81 Nev. 495, 406 P.2d 713 (1965). The burden rests with the state to supply that proof. Lesser included offenses are bailable as of right, since none of them is a capital offense.
Here, the state presented to the lower court the transcript of the testimony received at the preliminary examination, and nothing more. We have examined that record with care and find it wholly inadequate to show first degree murder, when tested by the constitutional standard of evident proof or great presumption.
The charge is that Barbara Louise Howard killed Officer Fortye by shooting at and into his body with a firearm. Four witnesses gave testimony at the preliminary hearing: a pathologist, a police patrolman, a taxi driver, and a church organist. The pathologist stated that the autopsy disclosed three gunshot wounds; two of them superficial, and the third a fatal chest wound. He opined that death occurred within 5 minutes after infliction of the chest wounds and that none of the wounds was self-inflicted.
The police patrolman testified that, at 2:30 a.m. on October 28, he received a radio message from control and proceeded to Highland Boulevard near the Walker Furniture Store. A police car, with engine running and with all lights on, was stopped on the east side of the road headed north. Officer Fortye was lying dead beside the left front tire of the car. His tie was ripped off, his shirt torn and pulled apart. His hat was underneath the front grill of the car, and his handcuffs lay near the right front tire. The ground was spattered with blood. On the hood of the police car was a driver's license bearing the name of Thomas Cornelius Howard.
The taxi driver stated that, at about 2:23 a.m., while driving along Highland at 5 or 10 miles per hour, he saw a police car stopped, facing north. An officer stood beside.it, talking to a negro man. About 15 feet in front and to the right of the patrol car was a light colored Dodge or Plymouth, in which a negro woman sat behind the steering wheel. He identified Barbara and Thomas Howard as the two negroes he had observed.
Finally, the church organist testified that he also had driven along Highland Boulevard about that time. He noticed the two stopped cars. He saw a Negro woman scuffling with Officer Fortye. She had hold of the officer's sleeves. He then saw a negro man run up and grab either the officer's arm or the woman's arm. The officer shoved the man back toward a parked car. The witness did not identify the Howards as the two he had seen scuffling with the officer during the early morning hours of October 28.
Such was the evidence which persuaded the lower court to deny Barbara Howard's request to be released on bail, pending trial. As already stated, the charge is that Barbara Howard willfully and with malice, shot and killed Officer Fortye. Only evidence tending to show the elements of first degree murder will allow the trial court to deny a bail application. Ex parte Wheeler, supra. That showing was not made at the preliminary hearing. The most that may be gathered from the evidence is that Barbara was seen scuffling with the officer about the time he must have been shot. The connection between that encounter and the shooting is left wholly to conjecture. If the state possessed evidence tending to establish the elements of first degree murder, the prosecutor did not offer it. The murder weapon, fingerprint evidence, ballistic studies, eye witness testimony, admissions, confessions, if any exist, were not produced. Of course, we do not mean to suggest that the state must present all of its evidence at the preliminary hearing. We do hold, however, that some competent evidence tending to establish that the accused shot the decedent is required. It is not permissible, in ruling on a bail application, to arrive at that conclusion by stacking inference upon inference. Our constitutional standard requires more. The void in proof is particularly apparent since the same evidence is relied upon to support the murder charge against Thomas Cornelius Howard. He also was seen scuffling with the police officer. Which one of the "scufflers" shot Fortye, or is the culprit someone else who happened upon the scene? The record does not suggest an answer. The evident proof or great presumption required by the Constitution before bail may be denied one accused of a capital offense, contemplates more than a mere inference of guilt of some crime (either first degree murder or a lesser included offense) which may suffice to hold one for trial in the district court. Cf. Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963). We therefore reverse the order of the lower court, and direct that Barbara Louise Howard be released from custody pending trial, upon giving bail in the amount of $5,000.
Zenoff, L, concurs.