Tonopah bonanza. [volume] (Butler City [i.e. Butler], Nev.) 1901-1909, 1907-06-08
RFCISION in The
HENNESSY CASE
continued From Page %

~ IA that it a beer given already,
LADS as follows: 80 drty 90 ovar,
'Tne sees a felony attempted by
one m We TO prevent II II possible, and
vioienS him to use the necessary. means
auomsske his resistance effectual. One
to manIiil in defense of another under
may NJ circumstances that he would
have the right " 80 +" =.
hlmmssiss, instruction was a correct state
~ ofahe law and II was or the high
nj inheritance to the defendant that
est imnrpy he Instructed upon the princi-
the ssiisw which ii embodied, for ii was
2e 10 - very essence of his defense. We
Of lnv ,shie to find that this instruction
~ss clearly given IN any otner lnstrue,
uon' /, was embodied in defendants
ina. .,ction No. IL, which was substan-
il n Inc statutory definition of Justi-
nndmnss homicide. A trained legal mind
hapie he said to be able to evolve the
may oinle of law stated In the refused
Pltrnction from the definition con-
.mn9aed in instruction No. AZ, but we
m1anmht very much If the ordinary jury
nan, unfamiliar with me legal dis
n,%9Socsttlons, would be able TO readily
NM such an analysis. Whether the
muaSSnsai OF this instruction would
laannt [. reversible error In this case
aa need not determine. 1t is sufficient
sav that the instruction was proper
VA should AVE been given.
nefendant's requested instructions
xas N. l6, II. 81, % and 30, refused
~ The court, were doubtless offered for
tRe purpose of applying abstract prin-
clnles of law to facts as testified by
illnesses for the defendant. If the
INV believed the testimony OF the de-
ysndant's witnesses, instructions of the
e~baracter requested would enable the
Jury to more readily, apply, the law TO
ihe facts which such evidence might
h. deemed to have established. These
gennested instructions are endorsed
Refused" by the trial Judge without
giving any reason therefor, n we are
therefore, at a loss to know what theory
ior he state does not question their
eorrectness, but claims 1t was To- error
10 refuse them for the reason that 9TH
II Instructions covered the same point
referring TO certain instructions
which simply embodied abstract prin-
rinies OF law. 1t Is usual In criminal
csses to give instructions both for the
state and for the defendant which APP
py abstract legal principles to both
the states theory Of the case and the
defendant's theory of the case, as such
theories respectively have been sup
ported by evidence, in order that when
the Jury has agreed upon the facts of
The case, the law governing those facts
l. stated to them in concrete form. To
refuse Instructions OF this character lis
error. No question having been raised
as to the entire correctness OF these
Instructions as to matter OF form, we
have. In our consideration OF them,
treated them as correct, but whether
or not all or some of these are subject
to some modification we express no
opinion.
Error is assigned In the giving of
the states requested instruction No. 6,
which reads as follows.
The court instructs you, that IL you
believe from the evidence that at the
time Cole, Fancher and Ganahl went
Dthe Elftman lease. they went there In
purpose Of maintaining q rate OF wages,
and TO induce Antoine Bosse, In an or
Derby and peaceful manner and without
Violence, to work for that wage, their
purpose was a lawful under
the laws Of this state"
Counsel for the state contend that
this Instruction stated the law and was
applicable to this case because of the
provisions OF section ITO of the Crimes
and Punishment Act. Compiled Laws,
Sec 1881. This section defines the
crime OF conspiracy. but the concluding
part OF the section contains the follow
Ing proviso: That no part OF this act
shall be construed In any court of this
state to restrict or prohibit the orderly
and peaceably assembling or co-opera-
lion OF persons employed in any pro-
iession. trade or handicraft for the pur-
pose OF securing an advance in the
Il ~ W Nahlor - AVHADEllhallOHs VI AoH
ne maintenance of such rate"
We are unable to see how the provis-
ions OF the section quoted could author
Ae me giving OF the instruction in
question IN this case. II was competent
show the purpose which ~oceasioned
ganahl Cole and Fancher to go upon
ue Elttman lease, and how they pro-
posed TO accomplish such purpose. for
Wst would be a circumstance to be con
udefed by the jury in a determination
M VI The QiNDufpn nnAaflnn pshaehnr CN1a
La Sanahl FIRST assaulted Elftman or
shether Elftman was the aggressor.
lns Instruction given, however. might
S1a me jury to believe that the laws
lns state gave to Cole. Ganahl and
isncher some special privilege because
ue iact, II the jury believed IL TO
~ Iact mat their purpose In going
rsKWg we Elftman lease vas to accom-
XIV N an orderly and peaceable man
M wy maintenance OF a rate of wages.
ny pi0yiso which forms a part of sec
el ny OF the Crimes and Punishments
y supra, relates solely to the con-
sNMHeuon 70 be placed upon the pre-
.eung portion of the section. nv the
s!ms Of this proviso the section OF the
~ ~ question Is not to be construed
wv courts so as to restrict or pro-
si N 'e orderly and peaceably assem-
pSyssd VI cooperation OF persons em-
gvu n any profession. trade, or
ssnoleraft for the purpose OF securing
suyance In the rate of wages, or
wpehsation, or for the maintenance
W. Sn rate. The purpose OF the pro-
Doosn NV precautionary to prevent the
,etsIlhty or courts constituting lawful
terlo as unlawful. II was never in
y |asS Us a grant OF additional power
W. ~ vneges, and especially the priYi-
eriy ~ Entering In and upon the prop
NJ ma ~ another to carry out a purpose,
ne % ave how lawful or commendable
Ill 'ams might otherwise be. We think
Me tmsttuctlon Will tend to confuse
yolveed upon a legal question not in
te san THIS case, and the giving OF
Tbooane was error.
Other ,vSord contains a number of
ue oSssighments of error relative to
tons Sthusai and allowance OF instruc-
Qe Jut We think we have covered
stoned a,aa questions which have occa-
WbetIbau ihculty In the trial OF the case.
he mst,or not error was committed In
fcalivv "s.er OF assignments not speci-
Court rs,13,ns.ldefed, we believe the trial
tMlr MI nave no serious difficulty in
DnsenptaaSSper disposition when again
hdgmeennts reasons heretofore given. the
are revssu ana order of the trial court
br Nsrsed and the cause Is remanded
TALBOT, G. j.
NORCROSS, ]
SWEENEY, j..