Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-02-15
Sawyer 4 Sawyer. for appellants.
oP1NION-HY npNNIFIrLD, c.J.

OPINION-BN HpNNIFITIp. r.I.
rms Is an action against the defendant.
for causing the arrest and prosecution
maliclously and without probable cause
as 1t Is alleged, of the plaintiff upon a
criminal charge against the plaintiff
made by the defendants, of an attempt to
Suborn Mrs. Eleanor McGutfee, on the
3rd day of November. 1888. as a witness
to swear willfully, %corruptIy and falsely
to certain alleged material matter to the
Issue in question in a certain suit then
ending IN the District Court of the
fourth judicial District, in and for Lin
coin County, wherein one c. A. Horn was
plaintiff and said James Nesbitt and
George Nesbit and Joseph McGutfee were
defendants.
tpon the plaintiff introducing his evil
dence and resting his case the defendants
moved for a nOn-suit upon the grounds:
First, that said plaintiff has not proved
the want of probable cause in the prose-
cutlon of which he complains, but on the
contrary has shown that there was prob
able cause.
second: That said plaintiff has failed
10 prove malice on the part of the defen-
daNts IN the prosecution of which he
complains.
Third: 1t is shown that defendants
acted on advice Of counsel in the prose-
cutiOn complained off,
The court Oyerruled the motion, there
upon defendants introduced their evil
dence and the c"ur proceeded with the
! trial. The trial resulted in a verdict of
the jury and judgment thereon in favor
of the plaintiff for the sum of five hund-
| red dollars damages and costs of suit.
This appeal is taken from said judgment
and from the order of the court denying
defendants motion for a new trial. The
ruling of the court in denying the mo-
ton for nOn-suit is assigned as error.
1t appears that the issue involved in
said suit of Horn VS.. Nesbitt ct al. was
the right to the possession and use of two
certain springs of water, both parties to
said action claiming the same The of
Tense charged against Warren and Me
Nance in the complaint laid before the
committing magistrate by the defendants
was, tina on the Bird day of November
1873, at etc, " said George b. Warren and
said +. L. McNamee unlawfully, cor
ruptly, etc. did solicit, instigate and en-
deav0r to persuade N Mrs. Eleanor Nc
Guifee, who was a material witness OF
the part of the defendants in said action
to falsely swear and give in evidence be
fore said District Court, certain matter
material and relevant to said issue and t
the matters therein II thereby put l
issue, in substance and to the effect 10
lowing. that is to say. that the two spring
of water claimed by said plaintiff e.
Horn in said action above named, wei
now, and had always been by said WI
ness, Mrs. Eleanor McGutfee, consldere
and regarded as the home and propert
of Mrs. Aggie Horn the wife of said G. !
Horn, and said George B. Warren al
said F. r. McNamee promised to sa
witness Mrs. Eleanor McGutfee the su
of two thousand dollars to so falsely te
- tify. Said George B. Warren and said
RI r. McNamee by said means commit
then and there, the crime Of an attem
to suborn the said Mrs. Eleanor McGu
fee to commit the crime of perjury
Assuming that what Mrs. McGuf
"~eonsidered and regarded" with respect
said springs was "a matter material
III the issue or point in question: in 81
water suit, we are of opinion that
court did not err in refusing to gran
non-suit.
- The criminal charge against McNan
was based on what defendants claim
occurred between McNamee, Warren q
I Mrs, McGuffee at an interview held
tween the three on the night of Move
Der 8, 1895, at Mrs. McFadden's lodgl
house in the town of DeLamar. h I
ton for non-suit was based on the
dence given on the part of the plalr
which was then undisputed. This
dence tended to show, thai in the at
noon of said day Mrs. McGuffee inforr
the defendants and one Mike Owens
conversation had with them, that Gee
B. Warren mad offered her some mo
to testify that a spring involved in
= water suit belonged to Mrs. Horn anc
~ A. Horn, thereupon the defendants st;
IN that it would help them to win their
ter suit Their pending if they could
McNamee and Warren to make the
before witnesses, if they could get 1T
~ fore the court; that George Nesbitt IL
store in the afternoon of said day
gested to Mrs. McGuffee to get McNs
8. to offer her money to so testify about
springs; that defendants arranged
Mrs. McGuffee fo1her to have a me
~ with McNamee and Warren that mig
said lodging house; that George Ne
James McGutfee and Mike Owens
to said lodging house by the back