Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1913-12-05
The Peculiar Case
of Joseph Smith

! again a free man.
Probably no other case in the an
mails of Nevada has attracted the
I wide public interest as has the case
O; the State VS.. R. NJ. Preston and
Joseph Smith, indicted for the muir
der of John Silva, a restaurant
keeper OF Goldfield, which homicide
occurred on the 10th day of March
1907. The killing occurring at a
time when labor troubles were AT
their height at Goldfield and as
an outgrowth of such trouble, the
sentiment both for and against the
defendants was wrought to a high
pitch. Not only was there differ
enCes between the miners and the
mino owners, but a labor wal was
on between the Industrial Workers
OF tine World with which the Miners
Union was then affiliated and the Ia
Dor organizations affiliated with the
American Federation of Labor.
The l.. w. w. had declared Sill
vas ]estaurant to be unfair" as 4
result of Silva's refusal to pay one
days wages to a waitress, a member
Of the. |. w. w, who had left Sill
vas employ without giving him one
days notice according to a rule he
had established. Smith and Pres
ton, who were agents of the |. w.
w. organization, first interviewed
Silva with a view of settlement.
Meeting with no success his place
Of business was declared unfair"
and pickets stationed in front there
of to persuade patrons of the place
not to ~patronize Silva. While Pres
ton was acting as such a picket on
the evening of March 10, 1907, he
shot and killed Silva in the door Of
mis- restaurant.
The grand jury found a joint in
dictment against Preston and Smith
for the murder, Smith being charg-
ed therein as accessory before the
fact. 1t was the theory adopted by
the district attorney representing
the state, that the killing of Silva
was the result of a conspiracy IN
which not only Smith and Preston
were involved, but also Vincent ). |
John R%oudebush and several others |
against wnom indictments for muir
der were also found, bur never pros
The trial of Smith and Preston
was begun on the 10Th day Of April,
1907. On the 9th day of May fol-
the jury returned verdicts
convicting Preston of murder in the
degree, with a recommended
ton 10 the mercy of the court, and
convicting Smith of voluntary man
slaughter. Upon these verdicts the
court imposed a sentence of twenty-
years upon Preston and ten up
Smith. !
At the trial the State was repre-
scented by A. H. Swallow, district
attorney, J. F. Douglas and w.
Booth Malone, the latter a lawyer
Denver. the defense was rep-I
resented by Frank J. Hangs and P.l
Bowler.
An appeal was taken to the Sui
preme court upon many assignments
Of error, but owing to a failure to
comply with the law regulating ap-
peals, the appeal was dismissed and
the law of the case never reviewed
by the court of last resort. Upon a
petition for rehearing the correct-
ness of the order Diminishing the
appeal was admitted, but the court
was asked to consider the case as
writ of error. The court held !
that if such a writ was allowable, a
point never before raised. a regular
proceeding to, obtain such a writ
would nave to be instituted.
The cases of Smith and Preston !
five times been presented 20
tlC todlu VI par oilo Va lin "
lay of November, 1911, Smith was re-
leased on parole.
The case of Smith presented an
unusual question of law. The evil
dence showed he was not present at
the killing. His counsel c~ontendcd
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 man
slaughter in no event could be JUS
titled and was virtually an acquit-
tai. 1t is said that there is but one
case in the books of a similar con-
viction under a similar state of facts.
A Washington case in which the ma
iority OF the court held that such "a