The silver state. [volume] (Winnemucca, Nev.) 1909-1925, 1913-12-06
OF REMARK
liable CRIMINAL Case

The term of Imprisonment of Joseph
Smith has expired and he is again a
free man.
Probably no other ease in the an
nails of Nevada has attracted the wide
public interest as has the ease of the
state VS.. r.. NJ. Preston and Joseph
smith, indicted for the murder of
John Silva, a restaurant keeper of
Goldfeld, which homicide occurred on
the 10th day of March, 1907. The
killing occurring at a time wnen labor
troubles were at their height at Gold
Geld and as an outgrowth of such
trouble, the sentiment both for and
against the defendants was wrought
t. a high pitch. Not only was there
differences between the miners and
The mine owners, but a labar war wa
n between the Industrial Workers
o. the World with which the Miners
Mon was then affiliated and the la
Dor organizations affiliated with the
American Federation of Labor.
TIE /. w. W. had declared Silva 5
restaurant to be "unfair'' as a result
If Silva's refusal to pay n day s
ages to a waitress. a member of the
w. W., who had left Silva employ
without giving him one days notice
according to a rule he had established
Smith and Preston, who were agents
iof the |. w. w. organization, first
interviewed Silva with a view of set
Element. Meeting with no success his
place of business was declared Gun
fair and pickets stationed in front
thereof to persuade patrons of the
place not to patronize Silva. While
Preston was acting as such r picket
on the evening of March 10, 1907, he
shot and killed Silva in the door of
his restaurant.
The grand Jury found a Joint in
dictment against Preston and Smith
for the murder, Smith being charged
therein as accessory before the fact.
It was the theory adopted by the dis
trict attorney representing the state,
that the killing of Silva was the ~e-
suit of a conspiracy in which not only
Smith and Preston We're involved.
but also Vincent St. John R~oudebush
anil several others against whom in
dictments for murder We're also found,
hft never prosecuted.
The trial of Smith and Preston r~as
begun on the 10Th dav of Aoril 1907
On the 9th dav Of Mav fallawiro the
iury returned verdicts convietirg
Preston of murder in the second de-
croe. with a recommendation to the
rlarev of the court, and convieting
Smith of voluntary manslaughter, Up
On these verdicts the court imposed ?
sentence of twenty-five wears upon
Preston and ten upon Smith.
The cases of Smith and preston
have five times been presented 10 the
oatd of pardons. On the 1th dav OF
November, 1911, Smith was released
or parole.
The case of Smith presented an
unusual question Of law. The evidence
showed he was not present at the
killing. His counsel contended that
as a matter of law he was either
(, guilty of murder in the first degree
under the theory of conspiracy or not
guilty. That a verdict of manslaugh
ter in no event could be justified and
was virtually an acquitta1. IT is said
that there is but one case in the books
OF a similar conviction under a similar
state of facts. A Washington case in
which the majority of the court held
that such a conviction could not be
sustained.
Joseph Smith is probably the only
person in this country who ever serv-
ed time upon a conviction for a homi-
eide where he was not present at the
killing and where the prosecution. as
to him, depended upon a charge of
conspiracy which necessarily involved
questions of malice and deliberation
and where the verdict of the iury was
voluntary m~anslaughter, which the
statute defines as 'tunlawful killing
upon a sudden heat of passion, with
out malice, and without any mixture
of deliberation."
1t has been a mooted question
among lawers of the state as to
whether Smiths conviction could be
supported in the law.
Under the statute of the state fix
ing the allowance of credits, Smith s
term expired on the 10th day of De-
tober last, and, as to him, the case
has gone into history. Preston's ease
is still pending before the board of
pardons.-Carson Appeal.