Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-09-09

~ 0PVNSAAy - ma NsSJ0NsSAOAA ~ SAAS
The common law rule which pro
hibits any one from testifying who
has been convicted q an infamous
crime was In force in this state prior
Since that year Sec. 81 Of our Civil
Practice Act has provided that no
person shall be disqualified as Wit
ness by reason Of mis- conviction sf
felony, but such conviction may be
shown for the purpose of affecting
his credibility. State y. Ellwood Ii
R. T. 7s6. Sec IL of the Act relating
to crimes and punishments makes
the rules fer determining the COM
potency of witnesses in civil procee l.
ings appncable to criminal actions.
s.. 1t is claimed mat the evidence
does not warrant the conviction Of
the defendant. Roberts. The writer
statement of the dying man made
in the forenoon that the shorter one
shot him was corrObOrated by his
identification in the afternoon when
he singled Roberts out of more than
e dozen strangers, locked him in the
eye and said, Tou shot me-" Al
Though Townsend did not see him a
brakeman saw him and three others
on train No. 22O short time before
it reached lola there is testimony
that he was in Lovelock that evening
On the stand he stated he was in
Lovelcck all that night with the other
defendants When cross examiner
regarding his whereabouts between
II and IL o'clock that night he said
they were around different saloons
in LOEelock during; that hour and not
ON any train. If SO. it is probable
hat he, and the other defendants
could have clearly established an alioi
Waldman testiffes that he as well rs
the others had his fac epartly covered
by a. cloth around his chin. Wali-
! man did not. see him shoot Welsh but
if he shot after Welsh fell to the
ground as declared in the dying state
ment, Waldman had already fallen
from the train a half or a
quarter of a. mile away and
It was not necessary for him to
have taken an active part at the
time of the robbery. The testimony
i that he was in Lovelock in the even
ing and was on train 220 and was
not SESl vi u -Ao '-itil ne dp
! Deared there with the other defend
ants. indicates that he left and re-
turned to LoveIock with them, which
q could have been done in less than one
hour. 1t is apparent that the evil
dence was quite sufficient to Justify
the jury in finding that he was one
of the cOnspirators and participant
in this midnight expedition OF rob
berry and assassination
The cause was carefully tried Dy
Court and counsel .-4es rights, OF sthe
;. accused were we'll guarded and the
| record shows no error prejudicial ,e
them. 81,
The judgment and order are at
firmed and the district court will 4,
Z a time for having its sentence carried
| into effect. anr MAKE the proper ord.e
| for the execution Of its Judgment o!
death.
{ We Concur.
Fitzgerald C. ).
- Norcross, J.
: IN THE SUPREME COURT OF THU
STATE OF NEVADA.
= 3 .as
!, Daniel Powell, Respondent v Nevad
: California Oregon Railway, a CO..
poratTon, Appellant.
: spondent.
$ Dodge. Parker. Cheney Massey, an
FL smith. Appellant
t OPINION ON REtsEARtNG
~ The decision of this Court herei
( vas rendered December "a, 100
ii IS r. 97S. A petition for rehearin
$ was FLED January %, 1875. The orde
: gr,nting the rehearing did not linn
f 1.-THE purpose for which the rehearin
e might be- had although the main il
n aucement for granting one was til
1t statement in the petition that TIN
G Court had omitted to particularly CO.
d slider in its opinion PLAINTIFF instruc
ion no. 10, the giving Of which to til
!, ='-r.. is said by the appellant to
n the basis of one, Of its main assertiO,
X that the district court erred. IL
~ briefs and the arguments on rehes
y ling. presented last April and Ma
rs covered the contentious previously a
= venred ard more. and have gone
i yond the petition itself and furth
ri than the questions involved on ii
Z, anpeal. r is. now urged that und
m the Statute approved. Feb 25. 19t
~ ass -. nuryscrting to amend Sec. l
!. Of the Civil Practice Act. and viii
!. w"s passed after the determinati
70 Iof the appeal and after tire fling a
:, ,ranting CT the petition for reheari
!. bis court ought to remand the ca
,,s because it does not appear that t
~. iud gment is supported by fair p
). ponderance of the evidence ~
ID rosing this contention the validity
is The amendment is assailed by ]
-. spcndent. AS indicated in the opini
=. the evidence is ample to support /
o~- verdict under the statute as it ste
.or before the passage OF this late 4
~ To'lewing the usual precedent t
10 constitutional question advanced
los counsel will not be considered VIII
al their adjudication is not necesss
niv for proper determination of the eau
-, Tho ATTORNEY FIR rpsu0ndont acac