Tonopah daily bonanza. [volume] (Tonopah, Nev.) 1906-1929, 1910-08-05
DEMURRER TO INDICTMENT
ISKNOCKED OUT BY JUDGE

IN the district court Yesterday /
morning Judge Averill handed
down decision denying the de-
murrer in the cases Of County Com
missioners Cuddy and Lindsay. The
action came up the middle of last
week, when Messrs. Sanders and
Bowler, attorneys for the county Of
ficials, entered a demurrer to the
recently found indictments, which
charged both Cuddy and Lindsay
with malfeasance in office. At that
hearing oral arguments were made
and were answered by District At
torney Baker Monday morning of
this week briefs We're submitted by
the attorneys on both sides and af-
ter examining these very critically
and considering all the authorities
cited. Judge Averill in the deci-
sion which follows, upheld the va.
lidity of the citation. The Judges
opinion follows:
1t appears that the portion of
the act of March "a, 1909, under
which these proceedings We're in
itiated, is word for word an ex-
act copy of sections 1916 to 1866
inclusive of Cuttings compiled laws
under the heading Criminal Ac-
ton Whether these are actual
ly criminal actions must first be
determined.
Section of the Criminal Prac-
tice Act defines a crime" or pub
lie offense," and states that if re
moval from office may be had
upon conviction. the act or omis-
sion forbidden by law is crime
or public offense. The defendants
therefore, have been charged with
a crime of public offense, and the
actions initiated thereby are Grim
inal actions.
This much having been settled
the next question to be answered il
whether public offense" must b.
prosecuted by indictment; and il
these cases, this means whethe
the accusations made by the gran
jury must have all the incidents 0
an indictment 1t seems not, TO
the reason that section of tn
criminal practice act reads in part
Every public offense. must b
prosecuted by Indictment. eXcep
first, where proceedings are ha
for the removal of a civil officer {
the territory This is an old &C
so the word territory must rea
state" Section s. of article | an
section of article VII of the COZ
stitution of Nevada are to tn
same effect, and the latter sectio
includes all civil officers whose in
parchment is not a duty of tn
legislature in some form.
The accusations. therefore, nee
not have all the incidents of an il
dictment, and it was not necessar
for them to bear the names of tn
witnesses who testified before til
grand jury. though those name
might have been inserted withol
that ordinarily man has tn
right to know who his accusel
are in fact, and since the name
were not given. he may conclud
that the grand jury itself is til
accuser, which is consistent wit
the law defining the duties of ths
body.
The next question raised fc
consideration was that of intent
1t is argued that the accusation
must allege something more tina
wilfullness- they must stat
there was a corrupt or evil il
tent. Several cases are offered z
authority for this view but the
do not seem to be strictly in pOin
for they are all cases involving a,
tual corruption, as well as viii
full misuse of funds. Section 465
compiled laws reads: "In ever
crime or public offense, there mu.
be union or joint operatio
of act and intention, or Grimm;
negligence The accusation
charge public offenses." so inter
should be alleged and proven
is sufficiently alleged in the acc,
sations as follows 1.-THE ALLOW
ance and approval of the said hi
or claim was wllful an
performed with a full knowedg
- "Willful" means q,
set purpose. and purpose is
synonym of intent so "wilful