Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-02-14
oPINI0N-BY EoNE!FIELD, CA.

oPINIoN-RY E~oNE!FGET.D, CA.
This IS an action against the defendants
for causing the arrest and Prosecution
m~allclously 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 McGuffee. on the
Bird day of November, 1895, as a witness
to swear willfuIly, corruptly and falsely
to certain alleged material matter to the
issue in question in a certain suit then
pending in the District Court of the
Fourth Judicial District, i'll and for Lin
coin County, wherein one c.. A. Horn was
plaintiff and said James Nesbitt and
George Nesbit and Joseph McGutfee were
defendants.
Upon 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
he want of probable cause in the prose-
cution of which he complains, but on the
contrary has shown hat there was prob
able cause.
Second: That said plaintiff has failed
to 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 Of"
The court overruled the motion, there
upon defendants introduced their evil
dence and the court proceeded with the
trial. Thu trial resulted in a verdict of
the jury and judgment thereon in favor
of the plaintiff for the sum of five humid
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 Nc
Nance in the complaint laid before the
committing magistrate by the defendants
was, that on the 3rd day of November
1898, at etc, " said George b. Warren and
said F.. r. McNamee unlawfully, cor
ruptly, etc. did solicit, instigate and ell.
! deav0r to persuade one Mrs. Eleanor Nc
Gutlee, 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 and thereby put il
issue, in substance and to the effect fol
lowing, that is to say. that the two spring
of water claimed by said plaintiff c. A
Horn in said action above named, wer
now. and had always been by said vii
ness. Mrs. Eleanor McGutfee, considere'
and regarded as the home and propert
of Mrs. Aggie Horn the wife of said c.
Horn, and said George B. Warren an
said F. r. McNamee promised to sal
witness Mrs. Eleanor McGuffee the SUI
of two thousand dollars to so falsely te
tify. Said George B. Warren and said
I R. McNamee by said means committe
Their and there, the crime of al atteml
to suborn the said Mrs. Eleanor McGu
fee to commit the crime of perjury"
Assuming that what Mrs. McGutf
considered and regnrded' with respect
said springs was "a matter material
B" the issue or point in question" in sa
water suit, we are of opinion that t
court did not err in refusing to grant
non-suit.
The criminal charge against McNam
was based on what defendants claim
occurred between McNamee, Warren al
Mrs. McGuffee at an interview held b
tween the three on the night of Mover
Der 3, 1895, at Mrs. McFadden's lodgil
house in the town of DeLamar. The m
ton for non-suit was based on the e
dence given on the part of the plant
which was then undisputed. This e
. dence tended to show, that in the aft
noon of said day Mrs. McGuffee inform
the defendants and n Mike Owens il
conversation had with them, that Geol
B. Warren had offered her some NOR
to testify that a spring involved in 8;
. water suit belonged to Mrs. Horn and
A. Horn, thereupon the defendants sta
IN that it would help them to win their '
ter suit then pending if they could
McNamee and Warren to make the o
:, before witnesses, if they could get it
fore the court; that George Nesbitt in
store in the afternoon of said day s
pested to Mrs. McGutfee to get McNal
:. to offer her money to so testify about s
springs: that defendants arranged "
&c. Mrs. McGuffee for her to have a meet
,.a with McNamee and Warren that nigh
said lodging house; that George Mes
James McGuffee and Mike Owens "
to said lodging house by the back Y