The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-13
SUPREME COURT DECISION
Continued from Page 81
lection to the same. The body Of
the Indictment reads as follows:


the indictment reads as follows:
Defendants Johnny. an Indian
(whose other name if any. is to the
Grand Jury unknown) and Joe Iba-
pah, an Indian, twhose other name.
if any. is to the Grand Jury unknown
are accused by the Grand Jury Of the
County OF Elkc. State of Nevada. by
tns indictment Of the crime Of muir
-er. committed as follows. TO wit:
That the said defendants. Jonnn.
an Indian. and Joe lhapah. an Indian
on or about the ..,h day OF Decen
Der. 4. D. 1908 in The County of Eli1c
State vi Nevada and before the find
ing OF this indictment, without au.
thoritv vi law feloniously, wilfully,
unlawfuiiy 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
stabbine the said Fred Foreman with
knives: whereof and by means Of
Vie striking. cutting and stabbir;j
aforesaid. the said Fred Foreman
then and there died.
Counsel Tor appellants claim that
the indictment is defecuve in this:
That it does not in the body thereof
charge the defendants Of the crime
OF murder Or state that murder was
committed" Also that the speci-
tic 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
statute. Comp. Laws. Sec. 4zoo.)
The act charged as the offense is.
we think, clearly and distinctly set
forth i'll ordinary and concise ian-
guage. and in such a manner as 70
enable a person CT common hndeI-
standing to know what was intended
and with such a degree OF certainty
as to enable Q court to pronounce
Judgment upon q conviction according
10 the right Ct the case. and i Is,
therefore. sufficient. Comp. Laws,
Sec. 4-u5.)
3. After the state had rested its
case. counsel fer the defendant jnhn-
nv. announced hat his client. al5o'
rested and on his baha44 moved that
the case he given to the Jury a. thi5
time before any testimony is offered
on behrlf of the defendant Ihapah.
Counsel en- stated to the court as
= reason for making this motion, that
MT. Taber, counsel Tor loapah' III
forms me that the defendant ipapah
will take the stand in his own peAan'
and believe l0apah's testimony VIII
he oreiudicial to the defendant, John-
ny" -
co,s,aer the motion, denied 1t, ana
this ruling is assigned as error.
Sections $50 to 362, inclusive, CT our
Criminal Practice Act Comp: Laws
Secs. ..255-433227D provides as follows:
..es323. Sec. 500 Wnen two or
more defendants; are jointly lndlct FL
for anv offense, they shall be Jolntlv
tried unless fer good cause SHOWN by
the prosecution or defense, the court
shall otherwise direct.
A236 Sec. 361. When TWO or more
persons are included IN the SAINT ~
dic1ment the court may at any tune
before the defendant has gone 1h'o
his defense. en- the application Oh Tue
District a,tOrney, direct any oeith''
ant TO be discharged from the lhaiot-
ment. that ne may be witness loi
asp7 Sec. 3e2. When two or
r,cra nersons are included IN the
-a,ne indictment and the court IS VI
,ninion that in regard to particular
defendant there is not sufficient EVIL
aorco to MT h m on his defense, II
sh,u order him to be discharged from
10 ;ndictment. before the evidence
eb,, he deemed closed, that he may
no a witness for his codefendant. -.
defendant jointly indicted VIA
.ro+ber who intends to demand
sanarate trial must make MS hioeion
hofore the formation of the jury Is
commenced Estate V. McAahe'
New. 359.) .eoaon+
TO nave permitted the delenaah,
tommy to have his case suoHl'.eu
and determined upon the cohciusloli
Of the states case would III elieo,'
have given him a separate 'iiel'
which would not only have peei "a
.1ain violation Of the statute, pu'
,,,;obt have been fatal error so lar as
Ihanab's case was concerned
Counsel for defendant johnny III
has brief says: aeo,da,t
1T is the privilege OF oeleiaan.
Jointly tried with ano, ef, Nneh 'l,cle
i little or 10 evidence against n,in
and he is willing to be trled Oh '10
evidence Of the prosecution. 70 oe-
mand that the jury pass upon ms
casa before the other defendant opens
liz defense: and tho jury should oe
charged By the 'ct'''. 'r''
correction w.,1 the otner
10 support this contention conhsei
oitae Bybee x. State. SO Tx. 1866.
We think cornsels position Is no.
only not supported by the on'hol wy
cited. hut that it is clearly not tne
law. we quote from the authority
cited the following: .4,,
after the defendants had win
drawn their motion for a sevefa nee:
ana elected to be Jointly tried 'hNz
could at any time after the S'ate ma ~
closed its evidence, if there was NJ
flo or no evidence against one OF 'he
other of them. have demanded tha'
49,. abo,-1d Gecidp mon the Cast