The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-08
sOURT DECISION
Continued from Page 81

inc lndlctment reads as follows:
defendants 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
tl,s indictment of the crime Of muir
-,r. committed as follows, to wit:
That the said defendants, johnny
an Indian, and Joe Ibapah, an Indian
on or about the 21lh day Of Decer
ber A. y. 1905 in the County Of Elko,
State Of Nevada, and before the find
ing of this indictment, without a,u
thoritv OF law. feloniously. Wilfully,
unlawfully 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 and
stAbbing the said Fred Foreman with
knives; whereof and by means Of
Ne striking, cutting and stabblriS
aforesaid. the said Fred Foreman
tnen and there died"
Counse! Tor appellants claim that
the indictment Is defective in this:
4
charge the defendants of the crime
Of murder or state that murder was
committed" Also, that the speci-
fc acts alleged. viz, the cutting, ect.
are no alleged to have been doae
with intent TO kill.
The Indictment follows substan-
TALLY he form suggested by Our
statute Comp. Laws. Sec. 400
TIL, &C, charged Is the cTense is
we think. clearly and distinctly SET
forth in ordinary and concise lal'
gnage. and in such manner as &c
Ell. b q a person Of common under
sernding 10 know what was jended
aTz ut, such a degree of certainty
a. to cradle court to pronounce
judgment upon q conviction acc0Tc-:i&
TO the right Of tie case, a!-1 u -
tterefl.e. sufficient. Comp laws
Sec. 4-v,.)
2 After the state had rested il:
oase, counsel for the defendant john
~ Announced hat his client also
-as1ed and on his beha.i moved INA
the case be given to Tho jury a. TN:
lin e before any testimony is Offered
m henalf Of the defendant Japan
Connse, On stated to the court a
reason for making this motion, ina
nNr. Taber. counsel Tor lDap"h' i,
forrrs ,,,a thai the defendant lbapai
viii tql-a the stand in his own n'i-' !,
ana , neiieye ,oaDah5 testimony VA
h. ayei..,icial y the Defendant JONI
ny" ,: ,;,,o !.
cene,oer the motion, denied IT, al
this ruling is assigned as error
Sections $50 to 362, inclusive, OF o'
Criminal Practice Act Comp: Law Law,
cace ,25-43a0 provides as follows
..225 Sec. 800. When two
,,ora defendants are jointly lndlc';
fn~ anv otfense, they shall be JON,
rriad unless for good cause SHOWN
+ha ,rosecUtiCn Or defense, the coo
shall otherwise direct.
Asof Sec. 361. When TWO OF III -?
nar.ons are included in the same
5ictn,ent the court may at any ih
hnforo the defendant has gone II,
bis defense on the application ol u
nietr;ct attorney. direct any celen
ont to he discharged from the ihAi y
ment. that he may be
the people. .,,,o
Sec. 90. NNAOA
more persons are lncIuoeo - -
same indictment and the cou'
oninion that in regard to pau 49, ~
attendant there is not s"hioron.
fence to put h m on MS oeien e.
shall order him to be dlschalseo -
he Indictment, before the {, iuel-
sh,u no deemed closed, that ne !. Ia
he q witness for his codefenoant.
defendant jointly .Adlcteo W.
another, who intends 10 oeA'ah,
separate trial must make MS hio''
hefore the formation OF the jury
commenced Estate V. McA''ne'
To nave permitted the defenaa
!ohnnv to have his case SUNNI;
and determined uyon the eoA1l asfa
NJ the > ,ate's case, Would IA 'l Nv;
hove given him separate
-,bicb would not only have oeeh
r1air violation Of the statute,
,,,;abt have beer fatal error 50 lal
Ihanah.s case was concerned
rnnnspl for defendant johnny
has brief says:
s.7t is the privilege Of deienu'
;C,.nt1y tripd with ano, -er, Wheh IN
= Iit+la or no evidence against
and he is willing to be trled Oh
evidence Of the prosecution, ~
wand that the jury pass upon
case before the other Defendant rp'
is defense: and he i"@r '''.
charroa hv Toe ,'olr'. a.. N.'--
thpir verdict as II '-e ~'-.~ 800
cornae-jon Wa he olner.
TO support this conten,ion c aac
cites Bybee Y. Stare, 81 :.; * 900 10
We think counsels position Is
o,1,. not supported by the outho'
cited but that It is clearly n3t
law. We quote from the ao'ho'
cited the following:
after the defendants MAD W
d,au-n their motion for a seNefa'
ana elected 10 he Jointly 'lto, |
cn,,,d at any time after the state
closed its evidence, if thcFe was
t1n or no evidence against one OF
other of them. have demanded
tho n,r, culd decide upon the
af snch one of them; and III az Go