The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-20
SUPREME COURT =
Continued from Ias-

|
the indictment reaus
Defendants Jonnny, ~~.t
whose other name, il ali.
Grand Jury unknown) al. =
pah, an Indian, (whose o..-~. ...s
If any. Is to the Grand Jury -A.-A
are accused by the Grand ~.
County Of Elko, State OF Ne.s4a,
sais Indictment of the crime 4, Mi
~ar. committed as follows,
That the said defenaan,s, Do-n
an Indian, and Joe IbapaA, a. iu.
IN or about the l..h day Oh Dece'
her, A. D. 1905 in the County CT Elk.
State of Nevada. and before the find
ing Of this indictment, without aw
thority Of law, feioniously. wilfully,
unlawfully and of their malice afore-
thought, killed certain human beng |
herein designated as Fred FOREMAN
whose true name is to the Grand jury
unknown. BY striking. cutting ana
sta6bing the said Fred Foreman WIN
knives; whereof and by means 81
,he striking, cutting and staobiLt4
aforesaid, the said FIed FOREMAN
then and there died"
Counsel Tor appellants claim tnat
tue indictment is defecove IN this:
That it does not in the body tnereo1
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 zone
with intent to kill"
The Indictment follows suosoan-
TALLY the form suggested by our
static. Comp. Laws. Sec. 42oo.'
The &C; charged as the o1ense Is.
we think. clearly and distinctly SET
forth in ordinary and concise iai-
-uaee and in such manner as 10
enable person OF common hhuS
standing 10 know what was lhtehueu.'
and with such degree OF cefIaih'y
as to enable court to pronounce
Judgment upon a conviction ACCORDING
10 the right of the case, and II Is
therefore. sufficient. Comp. Laws
See 4-vS.) 80
. After the state had rested IT'S
Ease counsel for the dctendan; JoiiH
nv announced that his cileh', |;"'.
rested and on his hehai moved ln!'
rio ca 80 he given to the jury a. tAlS
tir,o before any testimony Is olle!9u
nm behalf of the Defendant lNii'dh'
(,nrnsa1 on stated to the court as
, ,aa,on for making this notion liia'
~ Taber. counsel for lbapah, III
.ar,,e mo that the defendant lhapan
will lake the stand in his own ooii"'
.,t 7 heljaye ihanahs testimony VIII
he preiudicial to the Defendant 'olin'
ny" Elmo n
,,rclcer the motion. denied II, anu
mi. ruling is assigned as error.
sections $50 to 3G2. inclusive Oh oul
rri,,ina1 Practice Act Comp. La"
cacs ,25-4327, provides as follows
...2,5 Sec. $50. When Two VI
moro defendants are Jointly indlci -
fa, any offense, they shall be Jolh,
t,.;od unless for good cause shown pE
tho .,osecution or defense, the cour'
sbou otherwise direct
taoe Sec. 361 When two or III oie
,a.sons are included in the same AZ
allotment the court may at any tiine
I,oeoro the defendant has gone lii't
tie. defense on the application Oh 'ne
Dic,rict ,,torney. direct any oeieiu
~. ia he discharged from the iloio.
1,,nnt that he may be a Witness I've
the people. 90. who, two OF
20 rersons are included III 'nI
nan,o indictment and the court 10 "
oninion that in regard 10 pa owl
.pfondant there is not su1hcieh' CIV
dence to put h III on ms oeie sror
-b.r order him to be dlscnai seo .,o
.al ;ndictment. before the eVluenI,
III no deemed closed, that ne ma
hn . witness for his codefendan'.
defendant jointly 4ndlcteu w.
Who intends to demand
,onarate trial must make HIS =.
-, tho formation Of the JURY =, =
,menced. Estate V. McA1ane' -
New. 3599 ,,o defendan
n have his case saplhi'.o'
a determined upon the cohclu asae.
49, w. ate; case would, IN enc,
,,a,.a given him separate 80 :,
tilh would not only nave peen
Nv violation Of the slal"t1. W.
a;abt have been fatal error 50 l"' {"
nln,ob,s case was concerned. :,
'D %",,,co, for defendant johnny II
has brief say: dofo,6an
mo 81 is the privilege Of aele tHar
Jointly tried with ano' en- W.T. bir
= HttIe or no evidence asdlh9 ~,
"a no is willing to be tried on 'i
,-,,,co of the prosecution, W "s
,,and that the jury pass upon ~
l.s"' before the other defendant open n
ef is defense: ard the Jury should D"i'g,s " ,
charged by the cour., T7@ ,.+ -
thcir verdict q II INC
.onnec+ion VIA the olhct: ,.,.c
To support his contention ae tor. " sSG
cites Bybee V. State SO ! X, i 10 nc
We think Counsels posl,ion ,,thorit
only not supported ny ''G nnt III
cited, but that IT Is cl ~ 'o,,.horit
law We quote from the ""'"''
r;ted the following: ,a Will
''' After the defendants had m'o'
ana elected to be Jointly tried Gtote ' he
coul o, d" i,s ,'" evidence, if there was II
t t,o Wv NO evidence against ono or IN
other Of them d have d Snan the sa