The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-21
SUPREME COURT DEcistO~
Continued from Page 81


Defendants Johnny, an Indian
Whose other name. II any, is to tie
Grand Jury unknowr) and Joe lba-
pah, an Indian, (whose other nam,
if any. is to the Grand Jury unknown
are accused by the Grand jury Of IL
County of Elko, State Of Nevada, +
tals indictment OF the crime OF mu-
Ter. committed as follows, to wit:
That the said defendants, Johnn.
an Indian, and Joe Ibapah, an India
IN or about the z.,h DAY OF Decel-
Der. A. d. 1906 in the County Of Elko
State of Nevada. and before the lind
ing Of this Indictment, without aW
.hority of law, fe!oniously. wllfully,
urlawfully and Of their malice afore-
thought, killed certain human oelns'
herein designated as Fred FOREMAN
gnose true name is TO the Grand Jury
unknown, by striking, cutting ana
s.abbing the said Fred Foreman Win
knives: whereof and by means 81
,he striking, cutting and staoplrtI
aforesaid, the said Fred FOREMAN
then and there died.
Counsel Tor appellants claim that
.na indictment is defective IN tnls:
That it does not in the body thereof
charge the defendants of the CRIME
of murder or state that muroer WAS
committed" Also, that the speci-
fc acts alleged, viz, the cutting, ec''
are NOT alleged TO have been oohe
With intent to kill.
The Indictment follows suos'ah-
TALLY ne form suggested oE ou,
sta41te. Comp. Laws. Sec. 42oo.'
Tna act charged as the otfense IS
re think. clearly and distinctly SCI
forth :, ordinary and concise IA
.,aga and in such a manner as -
a,ah.a 2 person OF common 0nuel
standing to know what was lntenaei
and with such a degree OF cel'dlIi :
As to enable : court TO pIoIoIn I
,,IoneDt upon q conviction aecofoinz
m the right of the case ana II -
therefore, sufhcient. Comp. Laws
Sec. 4-v5D :.
After The sta,e had rested i:
,o.a counsel fcv the defendant 5ohh
nv ann0uncad that his client, a,-o
.asrad and on his heha.. moved 1i'.'
the csse he given 10 the Jury 2, 'h'
t;,,a before anv testimony IS oi!eIe.
:, hehaIf of the defendant lbarah'
rn,,nse1 en- stated to the court Il
rs,son for making this notion c.1'
Nj -Tabar. counsel for lbaDah, IL,
far-,,c me tha- the defendant loapai
,r-:17 ,aI,a ,be stand III his own hehat.
f.a-;a,a rhanah's testimony
Ia ,reiudicial to the defendant JOE
ny ,a,-;,r time :,
eonS,ger the motion, denied IT, d"
mi. ruling is assigned as error.
.oc-:cns $50 TO $50, inclusive. % GU
cripinai Practice Act comp: , "a
Sec .,25-43322O provides as 1ollo" >
..s:,25. Sec. $50. When Two
moro defendants are joint! ih'lc'
f.. any offense, theE shall be 1o-ht
trfed unless for good cause sllo"--
IN prosecution or defense, '1e 'o'''
shall otherwise direct -, :,
asos Sec. 361. When two or III 3? y.
,1r.ons are included IL the SAM ~ ~
a;ot,nont the court may at anE IN
nnforo the defendant has gone ~
nc defense on the application OF u
nistrict atorney. direct any otlsn'
49, to he discharged from the ln't g.
ran+ that he may be "l'lio7S
the people. who, two c
- nersors are included III III
na,,o Indictment and the coui. 10
..;o, that in regard to parlicuif
sa,ao,t there is not sufhcleht e'
80 10 mt h m on his delense,
III order him to be discharged ~
o.. ;ndictment. before the eVluenl
~ deemed closed, that ne nAe
no witness for his codeleluan'. -;t
defendant jointly addicted W.
+,,or who intends to demanu
anu.rate trial must make his nio'iN
,afore the formation of the Jury
commenced (s'a'e
New $500 ..5 tho defenda1
70 have his case suDlhi'.'
o datormined upon the conciusi>
aio Sste,s case would, IN enc
oiven him a separate t'''
No., wou,a not only have peeh
- violation of the STATUTE, y
49,, have been fatal error so iai
,,anah's case was concerileu.
i'rp for defendant JohnA!
AIS " IL toe privilege Of a defenaa
i,lt,., +ried with ano -er, "neii w
lo'- an or no evidence against ~ u,
"a he is willing to be uled Oh =
evidence OF the P1' ,,,,on +
land that the jury pass upon nn
,ase before the other GeleiiD shn,, Va
ia defense: and the jury s'- ''-,,.;,
charged by the COL. 49, ..a
1heir verdict IS
Connection .w.,A the DINER fa. conn.
To To support this contention c occ
.;.as rybee V. State, 26 TEX. 900
We think counsels posiuoh - hor !,
w
ea,y D but SS that i is clearly a1 not
,ov. We quote from the a'''iloi /
rited the following: TOD wi
.+.s slfter the defendants l haa m1
drawn their motion tor a + TGr1' 't tn
and elected 10 be ]oin't t,o safe h
cnnld at any time after the '. ,1.os =
closed its evidence, II there va
no or no evidence against one ~ =,
at,ar Of them. have demahoea 20 =.
t a,s jury should decide I'D upon IN 5 5re c so
Of such one Of them; ana 3nrr ~ ''- Nv I