Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-07-31
common understanding to know what

common understanding to know what
is intended.
Not only does the indictment sutfi-
GENTLY charge one act of larceny By
which the property of different persons
!! was taken, but the evidence submitte1
to the jury shows that there was but
one offense committed. The witness,
King, to whom appellant made his con-
fession while still in possession of part
Of the stolen property, testified that ap-
pellant stated to him that he rode
down in the night and sorted out of
band Of cattle the eighteen head, and
drove them away.
?. During the progress Of the trial
one Joe King was called as witness
and testified to confession made to
him by appellant The appellant asked
the court to strike the testimony given
by King from the record for the rea-
son that it appeared that King was
! co-conspirator in the commission of the
crime charged. The refusal of the
| court to strike out is assigned as error.
The record does not show that the wit
| ness was a co-conspirator within the
| meaning OF that term. He did not par
| ticipate in the criminal act and did not
suggest or plan it. 1t does show that
the appellant planned and committed the
| crime. 1t further shows that he sug
| gested the commission of the crime to
the witness who had, in anticipation of
some such sugge stion, been appointed
deputy sheriff by the sheriff of Lyon
county, and was acting as such without
the knowledge of the appellant, when
appellant invited him to join in the
comission of the crime of larceny; that
| the witness consented to join in the Of
tense, but did not, and kept his prin-
| cipal, the sheriff, fully informed as to
what was transpiring between him and
appellant 1t also shows that all that
was done or said by the witness was
without criminal purpose or intent
He was not, under the facts shows, Ell
Their a co-conspirator or accompllce,
and his evidence should not be treat
ed as SUCH Campbell v. The Common
wealth, 81 Pa. ST., 1877; Wright The
State, J Tex. Att. 574; People Y. Far
rell, 80 Cal. 800.
i But if it were even shown, or admit
ted that the witness King, was an &C
complete, that fact does not render him
incompetent to give testimony under
our statute.
Com. Laws, Sec 1907.
: The weight to be given to his teSti-
mony is a question for the jury under
proper instruction. sub ect, however, to
the statutatory restrictions, (Com
Laws. 43,3o) that conviction cannot be
had upon the uncOrrobOrated test
mony OF such accomplish. l., was not
error, therefore, to refuse to strike on,
l the testimony OF King.
t 3. The appellant requested the court
t to instruct the jury thai tie officers o
the law should never Ell ~uurage and as
sist parties to commit CRIME in order I,
arrest and have them punished for &C
doing: it is their duty to prevent crime
instead of lending aid and encourage
r ment in carrying it out, and in this cas-
the officers OF the law instead OF layins
5 a plan to have the defendant commit
e1 the crime as charged. if the jury be
e lieved from the evidence that they die
|. lay such plan, should have taken al
! steps in their power to prevent thu
t commission OF the offense. The refus
e al of the court to give this instruction
e is assigned as error. 1t is settled b
e the decisions OF this court that it is no
error to refuse instructions if there
no evidence before the jury making
II them applicable even though such If
$ StructiOn contains correct statement c
l. the principles OF the law.
e Estate V. Waterman, 1 New. 81:
h State V. Squares, New 22t
t. State V. All 10y, 5 New. oo)
le 1t is sufficient, without passing upo
ID the correctness of the rule of law cor
e tanned in the instruction asked, to sd
id that this instruction was not applicabl
le to the facts Of the case at bar. We BE-
e lieve the evidence shows conclusivel
e that neither the sheriff nor his deput
o suggested the commission of tn
y crime 1t further shows that neither {
l. these officers assisted in the COMM:
s sion OF the crime, and that whateve
ID plan was laid for the commission {
l. the theft was solely and exclusively tn
S. plan of the appellant, and by him alon
st carried into effect.
n 4. Whether or not there is any mer
d in the claim that the court erred in re
r. fusing to give the instruction relatin
e to the testimony Of detectives, is nc
1t before US. 1t appears from the actio
ut OF the court in refusing to give the II
Of struction that it had been given in sui
re stance, and the record fails to affirm
j. atively show that such was not the fac
n Whatever instructions were given b
sc the court are not properly brOugl
% here, and under the rule announced
i the State v. Maher, 62 Pac 236; Z
New, there is nothing for us
:. consider
s. We cannot consider the obje'
'. tons to instruction given by the cour
l. These instructions not having been Ell
IS bodied in the bill OF exception are n
n part of the record. Estate v. Forsh
a. 8 New. 1877; State v. Burns, 8 New. rs
Id State v. Rover, II New. 343; State
ty Maher, IS New. 666; 62 Pac. 1867
ne No error having been shown, Il
o. judgment and order will be afirme
e. We concur:
C. Belknap, ].
e, Fitzgerald, J.
All Filed July 9o, 1oo1.--
en- Eugene Howell,
It. Secretary of State and exotic
Sc Clerk of the Supreme Court.
in Filed with printer for publication Ju
Ct rOov Evro~o uoyou