The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-10
SUPREME COURT DECISION
Continued from Page 81

DSiCAudHlS johnny, an indian
whose other name, if any, is to the
Grand Jury unknown) and Joe Iba-
pah, an Indian, (whose other name,
ii any, is to the Grand Jury unknown)
are accused by the Grand Jury of the
County of Elko, State of Nevada, BY
LAS Indictment Of the crime Of muir
,-r. committed as follows, to wit:
That the said defendants, johnny
an Indian, and Joe Ibapah, an Indian
Oh CT about the zuh day Of Decem
Der, A. d. 1905 in the County of EikC
State OF Nevada, and before the find
ing OF this indictment, without az.
tao.itv OF law. feloniously, wilfully,
unlawfully and of their malice afore-
thought. killed certain human being,
herein designated as Fred Foreman,
whose true name is to the Grand Jury
unknown, by striking, cutting and
stabbins the said Fred Foreman with
knives; whereof and by means Of
1le striking, cutting and stabbiT,e,'
aforesaid, the said Fred Foreman
then and there died.
Counsel Tor appellants claim that
the Indictment is defective in this:
That it does not in ,Ae body thereof
charge the defendants Of the crime
of murder Or state that murder was
committees" Also, that the speci-
fic acts alleged, viz. the cutting. ect.
are NOT alleged TO have been done
with intent 10 kill
The Indictment follows substan-
tally the form suggested by our
statute Comp. Laws. Sec. 42o0.)
The &C; charged as the ofIense IS.
we think, clearly AID distinctly sat
forth IN ordinary and concise lal-
guaee. and in such a manner as 10
euabte person OF common UNDER
standing 20 krav what was intended.
and with such Z degree OF c2rjaln,F
as 20 enable court to pronounce
judgment upon conyicjiC2 according
% The Ugh, a tic case. and / Is.
therefore. sufficient. Comp. Laws,
Sec. 4-us.t
.. After the state had rested It's
ca Sc. counsel for .re defendant jnhn-
~. announced -ha hi- client, also
rested and on his D2l.a.I moved mat
the case he given to the jury al This
time before any testimony Is oifeIeo
on behalf Of the defendant i3apah.
Counsel en- stated 10 the court as
= reason for making this motion, tha'
Mr.. Taber. counsel for Ibapah, IN
forms ne that the defendant lb2pal
Will tato the stand in his own behalf,
and ! .aiieye IuGrah's Il StinonE VIII
a.. 1,,pi,,,icial /. the defendant, John
ny. -.
the court. after taking time 10
,,ore,oer the motion, denied il, and
this ruling is assigned as error.
Sections $50 to 3b2. lncluslFe' Oh our
criminal Practice Act Comp. Laws
Secs. .,25-432D provides as follows:
..-,::23. Sec. 300. When Two or
more defendants are Jointly lnelc' :.
for any offense, they shall be Jolhtls
fried unless for good cause SHOWN W
tho prosecution or defen z, the court
shall otherwise direct .-,.o
900 Sec. 361. When Two or III ofe
,erSons arc included III the same III
aic,ment, the court may at an! ti'iie
before the defendant has gone ill'o
b;s defense on the application OF 'he
D;.trict attorney direct any delenu
INV ia he discharged from the lhalct
,,ant that he may be witness lol
the people. ,,.o or
more persons are nc'uoeo .n '' -
same Indictment and the coui
oninion that in regard TO pal'io"io'
defendant there is not sunlcleh' :.
dence to put h m on ms deienoe' -.
shall order him to be dlschalseu ~
he Indictment, before the esieen.o
shau no deemed closed, that ne may
NO q witness for his codefendah'.
, defendant jointly addicted W.
r,,,,er who intends to demand
so,,arate rial must make his lho''on
,ofore the formation Of the jury -
.>,r,a,ced Estate V. Mcl4ane, 10
New. $500 ,soa.,+
no nave permitted the defendah.
,a,n,, +, nave his case submitted
md determined upon the coli'l nesaot
&c -, safes case would, III en- .
nave given him a separate .ii' ~,
vbich would not only have oeen -
main violation OF the '"'1. w..
MIGHT have been fatal error 50 iai "'
,banab.s case was concerned.
Counsel fer defendant Jonhhs i"
-, j. inc pyivilege Of a defendant
Jointly -ried with ano, Ell Nnei w -:
:. title or no evidence AGAINST MN ,
ard he j. willing TO he trleA Oh '''
evidence Of the prosecution. 70 ut-
maud that the jury pass upon lll9
,.,sa before the other defendan' ppe,'S
- anfarea. and lisc NV sH"''" "
[.I,aro.aa NV tt,n euart- IN. Z. Z ~.
thnir verdict as IA -.
connection Wan The olAeF- .,
r. supnort this contention counsel
tt,2 Rrbee V. state, 36 I < :3'.
We think counsels position IS ~.
anIv not supported by the oulhoE -, y
rffea hut that it is clearly hot ~.
tsw. We quote from the authority
e.tod the following: , with.
",fter the defend9nts had WIN
dravn their motion for seTefanc :.
am elected 20 he jointly tired, tlSg
could At any time after the state - -
closed its evidence. if there was ~. ~
tie or no evidence ag}in5t one OF .Ie
ether Of them. have d mahded 'na'
the i;rv should decide upon the caoe
IF sucb one of hem: and m an c".~
the inv should be charged by >he
r,ra