The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-12
lection 70 the same. The body Of
the Indictment reads as follows:

tWnOSe Otnef name, III any, Is 10 tne
Grand Jury unknOwn) and Joe lba-
yah, an Indian, Whose other name.
if any. is to the Grand Jury unknown)
are accused by the Grand Jury of the
County of Elko. State of Nevada. by
tals indictment Of the crime Of muir
.er, committed as follows, to wit:
That the said defendants, Jolnn.
an Indian and Joe Ibapah, an Indian
on Or about the 2.,h day OF DeceH
Der, A. ID. 1905 in the County OF EXC
State Of Nevada, and before the find
ing Of this indictment, without au
.horitv OF law. fe!oniously. w1lfuliy.
unlawfuily and of their malice; afore-
thought, killed a certain human being.
herein designated as Fred Foreman,
whose true name is to the Grand Jury
unknown, by striking, cutting ana
sta6bine the said Fred Foreman with
knives: whereof and by means OF
,he. striking, cutting and stabblris
aforesaid, the said Fred Foreman
then and there died.
Counsel ior appellants claim that
the indictment is defective IN TINS:
Tina, i, does not in the body Thereon
charge the defendants of the crime
Of 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 suos'ah-
tally the form suggested by our
statute. Comp. Laws. sec 4-'"'i
The ACT charged as the ofense Is
we think. clearly and distinctly SET
forth in ordinary and concise ia.1-
o,are and in such a manner as -
anabte person OF common uildel
s.aodin. to know what vas lntenoed
ana vi.h such a degree 81 ceFtaiA's
as 20 enable q cOur; to pIoh'u'.ce
iudener, upon & conviction ACCORDING
10 the right of the case. ana i -
therefore. sufficient. Comp Laws
Sec 4-v5.) =.
After the state had Te-lei rs
case counsel for the defendant Joan
Nv announced .h3- his client. al~o
,o.,od and on his henau moNed IN;
Tho case be given 70 the jury q, ny.
1ime before any testimony : oiAeteu
~. behalf Of the defendant ipaNaN.
Counse, en- stated to the ro"r' d.
.o,.,, Tor making this NOTION tita'
M Tahe~. counsel for Japan. Ii,
forns me tina, the defendant ioala II -.
VII 1a,,n the stand in his own hehan
~ Ia,;oya Ibapah's testimony VII
We ,reiudicial 10 the Defendant Jon"
ny ,,.;nu time {
CONSIDER the motion. dehlen IT, am
This ruling is assigned as error
Sections $50 TO 362, inclusive, u oU
Criminal Practice Act comp: Ia - :
Secs. .,25-432D provides as 1oiIo"s
$40, Sec. $50. When two o
,,,re defendants are Jointly lhnict7
for any offense. they shall be Joih,l
,r;nd unless for good cause SHOWN "
,bo prosecution on defense, me cou'
shall otherwise direct
43oG. Sec 361. When No o' III ;; -.
,nrsons are included III the aalhe ~
tictment. the ccurr may al an! ~, ~.
l,afore the defendant has gone III
nj. defense on the application o. "a
n:st,;ct ,.torney. direct any oelen'
49, to he discharged from the lhoio
nenr that he may be "itheoS ~
The people. ,-, two O
more persons are lnc.udeo IA ~
a.n,e indictment and the court -
o,inion that in regard 10 pa Nv w.
1rfondant there is not suElcleh'
>,arco To nut h m on his delenae'
.L,u order him to be discharged liol
~ indictment. before the eN1ueli'
,.h.u no deemed closed, that ne !. ~"
NO witness for his codefehdah''
defendant jointly .ndlcted W.
onotber who intends to deniahu
snnarate trial must make MS iho''o
,a,o tho formation Of the Jur!
commenced Estate V. NJ.
TO nave permitted the deienaal
Johnny to have his case s"pl,ii1;o
and determined uDon the CUM
of mo S.ate's case would, IN elleo
b,va given him separate i';
which would not only nave oee'i ~
n,ain violation Of the statute. W
,,,;obt have been fatal error 50 l"' &
thanab,s case was concerned
Counsel for defendant johnny
has brief SAYS: aoforda,
1T i the privilege Oh d aeie i,'a,
Jointly tried with ano, En- WIZ ii,
i Ijr+Ie or no evidence aGalh9' ~,
,,a he is willing to be trled on |"
,,-,donce of the prosecution 70 :"
nand that the jury pass upon III
80 hafore the other Defendant OPP,
- 5nfonsp. and the iurr ShoRlH
charged by jae con-. 49,, .
their verdict - 'i'
connection WI the olheE.
TO support this contention cou COW
cf-as Bybee V. State. &c Tex s."o-
Wo think counsels position Is d.
only not supported by the ou'hoi =,
cirod hut that it is clearly NOT u
law We quote from the authofl'
cited the following: -;+
after the defendants hao WI,
Drawn their motion for q seTera .3'.
a,d elected to be Jointly tried, t,i'
rou,a al any time after the STAT ~ u
c,ased i1s evidence, if there was !. !
he or no evidence against one OF -, -
other of them. have demanded IA
tbe iury should decide upon the ca
If such one of them; and IN an e'r
the jury should be CHARGED .; by .
court and they should consioel
cir verdict, in the same manhe.
e 80 cace had no Connectlol W.