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

rhe pQpneMe COURT or rHe
STAIR u NEVADA. 6
Re State - Nevada, Plaintiff, ".
Fred Roberts, !. p. ssvner and z.
Is. German, Defendants.
ftorne General Sweeney, n. Warran
and w. 4. Pike for Plaintifs.
Husl<ey and Martison, Attorneys
NJ. Packard and VIM. Woodbura
for defendants.
The defendants are three of the
Dur who were convicted Of murder IN
lt.e first degree in Humboldt cosini
nd on former appeal were granted
new trial by this court be
,ause juror who had ex-
ressed an Unqualified opinion re-
arding their guilt or innocence hal
leen allowed to serve. u p. 598, %
few Later the case was transferred
, Washoe county and Frank Will
hms who had been indicted, tried
hid convicted Jointly with these de-
fndants was there given q separate
*iaI. They have again been cor
Icted of murder in the first degree
nd again appeal.
On August 10, 1908, Jack Welsh
Iuit work in a hay field near Wiz
Aemucca, and about eight o'clock. or
salf past. that evening in company
Filth Albert Waldman left that town
IN west bound freight train, No. 219.
about 11:45 that night, after stop
ing at Mill City and. Humboldt
louise, this train slowed to a So /sd
4 from two to four miles per hour
md passed freight train No. 220, east
BOUND at lola, side track abont
our miles east of Oreana, the first
kfter leaving lola, four men appeal
ed upon the tops of the box cars and
tobbed Welsh and Waldman and
forced them on The train about two
miles west Of Zola when At had
iEeached q speed on the down grade
|of from thirty to thirty five miles an
Ihour. As Welsh chung to the ladder
lon the side of the car and begge1 ~.
his life, they stamped on his hands
and shot him until he fell to the
ground. He called to Waldman. who
had fallen first, and who. after a
brief Inconsistencies, came to him
return until after he had been taken
up and put in caboose on a freight
train about 1880 in the morning and
taken to Winnemucca where he ar
rived and was placed in the hospital
"a little after nine O'Clock that fore
moon, and where he died at Tbs that
evening. nineteen and one-half hours
after he had been shot and about
twelve hours after he had been taken
from the track where he had lain for
about seven and one half hours
l. 1t was urged that the District
Court erred in admitting in evidence
fhe following written dying deciara4
ton e. s..c -Scee-s1t..e Ye
MY name Is Jack Welsh l Phi
twenty years old My home is in
palisade. I have no brothers.
know who shot me when I see them
The heaviest and shortest one OF ths
lot SHIT TAR $50 five pen
Who attae.sea me-. Al. Waldman w,'
with me. There we're = mer
attack r g GIVE me a match. :" thes
saws. 81 haze, no match says /
Throw Up your hands sou sor-cs :"
bitch" ard l. Gid. They vent throu-t
my rel -. The one that shot re
had some kind OF shawl around Ms
NECK. 7 saw the fellow when he -
ne the first two times. was acni1
f &. feet from him. This happened
betwpc II and Il last night never
saw them before that know OF. The
tal.es1 IAN SHOT at ne too. l never
had any weapons of any kind. wa:
=,
wound whistled when l moved. Ate
I jumped CT the train the heavy Sc
fellow shot ne. I iSr4.w it was hin
EeEcc fG T2s - -
train and stamped on my hands
believe l am going to die and SO |
make this statement G. Welsh.
Counsel fer defendants objectc,
to this stateme On the grounds tina
it was nearsay. that it's admission
would v-tlatc the constitutional rig;
Of the defendants to be confrcnta
by the witnesses .again5r them. thf
it does not come under the exceptic
to the hearsay rule. known IS dvir
declarations, for to be admissible 5
such it must he made h. one in e,
: tremis and fully conscious of i'm
pending death and who has abanf,s
ed, al tope of recovery, that dyin
declarations by one who was parss-
unconscious at the time he made the
gre inadmissible. and that Welsh d
not sign his complete signature to tt
stater,- ~ because wnen he lad wri
ten to the last letter II his name
another at his request had made t
. 81"
That dying declarations must
made under a sea- OF impendil
death in order tc lie admissible
well illustrated by the cases cit
in defendants brief and by ma
others, but this may be shown n
only by what the injured person
but by his conduct and condition a
h-s the nature and extent of
Wounds, it is sufficient end If the
show that the declarations were ma
Z without expectation of recovery a
under a sense of impending dea
notwithstanding the declarant m
not have said that he was withe
- h. = y = trfS1 - liz.