The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-19

GFdnO jury uIhuONH) ana JUG IUa-
pah. an Indian, lwhose other name
if any. is to the Granu jury unknown,
are accused by the Grand Jury OF IN
County OF Elho, State of Nevada, b. !
tnls indictment of the crime of mul |
4er, committed as follows, to wit:
That the said defendants, JOlnn.
An lnuian, and Joe Ibapan, an Indian
On or about the 1..h day OF Decen
ber. A. D. 1905 in the County Of Elk.
State of Nevada, and before the find
ing of this Indictment, without au
thority of law. fe.oniously, Wllfully,
unlawfully and Of their malice atore-
thought. killed certain human being,
herein designated as Fred Foreman,
whose true name is to the Grand Jury
unknown, by striking, cutting and
stabbing the said Fred Foreman with
knives, whereof and by means OF
,ao striking, cutting and stabblrsd
aforesaid the said Fred Foreman
then and there died.
Counsel Tor appellants claim that
the indictment is defective IN TINS:
That it does not in tne body Thereon
charge the defendants OF the crime
1T murder or state that murder was
committed" Also, that the specl-
fc acts alleged. viz. the cutting, ect
are not alleged to have been done
with intent to kill
The indictment follows substan-
TALLY the form suggested by our
siafntc. Comp. Laws. Sec. 42oo.l
Th, ac, charged as the oilenSe IS
we think. clearly and distinctly Set
forth in ordinary and concise IAN
yuage and in such manner as 70
nnab,a q person OF common under
standing TO know what was lntenoed'
and with such a degree OF certainty
As to enable court to pronounce
Indictment upon a conviction acc'rdln
In the right Of the case, and Il Is,
therefore. sufficient. Comp Laws
Sec t-vSD
3 After the state had rested It's
case counsel for the defendant joln-
nv. announced that his c4lenf, atso'
rested and on his heha4l moved jH3'
the ease he given TO the jCTE al i2'1
Tine before any testimony - oiieIeu :.
IN behalf OF the defendant lbapah.
Counsel en- stated 10 the court d"
j, reason for making this mouoh. tiaI
MIR Tabcr. counsel for lhap2h, III
forms me that the defendant lpapan
viii take the stand i'll ais own behaiI,
ami I believe Ibapah's testimony VIII
he nreiudicial to the Defendant JONI
ny" ., -
The court, after taking time 70
.,ns.opr the motion, denied It, ana
mis- ruling is assigned as error
sections 800 to 1862, inclusive, OF ool
Criminal Practice act Comp: Laws
Sos .,25-4327) provides as follows
~tas5 Sec. 800. Wnen two o.
more defendants are Jointly lndlc'3.
for anv offensa. they shall be JolhtlS
tried unless for good cause SHOWN ~
tho prosecution or defense, the coul
shall otherwise direct. >,.,
4aas Sec. SCI. When two Or mol'
narsons are included in the same Ia
l;ctnent the court may at any 'lil'
:af,ro the defendant has gone ln''
bic defense on the Application OF 'ls
restrict .,,torney, direct any delenu
NV. IA ha discharged from the llial''
,,a,+ that he may be witness ~
the people. two n,
ara nersons are included IN the
-amo indictment and the court ID y
,irion that in regard to par'icula.
,afon5ant there is not suWcleht o'
donce TO put N on his delense'
Ill order him to be discharged l1oh
no Indictment, before the eNioeh's
~1au no deemed closed, that Ne NO.
va -, witness for his code1enoall'
defendant jointly indicted W..
nat,er who intends to demahu
.an,rata trial must make his nlo''oA
before the formation OF the Juls =:
commenced. Estate v N'''''
New. $500 ,ofordan
To nave permitted the deieh 3laa,
tommy to have his case s'up nl,,eio,
and determined upon the toNo aefoo+
of the safes case would III ;,l
nave given him separ",e I, 10 :,
which would not only nave ,,,,
main violation OF the s'a w :o y,
might have been fatal error 50 i'>' q
fbanah's case was concerneu. !,
Counsel for defendant johnny II
his brief says: dofardan
1T is the privilege of oele1 1h ,',,,,
Jointly tried with ano, -ef' VIM -; ;,
ic little or no evidence as",ho ~,
and he is willing TO be 'fleo VA 80
o,-,dancn Of the prosecution, 10 "a,
nand that the jury pass upon ~
-asa hnrore the other Defendant open
lis defense; and me mr. S'' '''''.:., s.,
charged By lAe .
rhcir verdict a
~ 1n,,a,-+ion WI the DINER
g. - crnnort this contention c"1,19'
,ftae Pybee V. State. SO TX, 300,
w, We think coanseis position n,,t is Hf
onlv not supported hy the on qat ~, !,
ciraa but hat ii is clearly nov u
law. We quote from the aot"o' u
'',e hft ,s,' the defendants had ~ie.
drawn their motion for +,, a . %%y9ra the
sn1 elected TO be joint, ~ 'r G+ate ' ha
closed it's evidence, if there was ~ !,
nc er no 10 evidence AGAINST one or .S th
atr,aT Of them. have demanded we we
tho iurv should decide upch me ~, oac
Of such one of them: and IN al hv 'S h
t1,o inrv should be charged py III
court and they should console, CONSIDER . :
civ verdict. in the same manner d
= Two case had no connection WI,