The silver state. [volume] (Winnemucca, Nev.) 1909-1925, 1915-08-14
SYNOPSIS OF FROM
HOFER DECISION

hN d0Ni0ibh VI ihN AhRAtAhN OCNAf
reversing the verdict of first degrees
murder in the case Of George From
hofer, convicted Of having killed Peter
Laux, was published in the Carsot
News of yesterday morning. The opia-
ion, which was written by Chief JUS
tiee Norcross, takes up an entire page
number of the pertinent paragraphs
written by the Court, and upon which
the reversal is based:
+" From the various circumstances de-
tailed and possibly some others of
minor character, not necessary to refer
10, we are asked to hold that there was
sufficient proof to establish the alleged
conspiracy.
+" Assuming, without deciding, that
the testimony relative to circumstances
following the shooting were admissible,
providing there had been some other
testimony from which conspiracy
might have been inferred, nevertheless,
there is not single circumstance de
tailed that is not consistent with the
il noeenee of the defendant, and all the
circumstances combined are not suffi-
cient to support any probable hypothe-
sis of guilt consistent beyond a reason
iNte uUuUhs WIN tue idtIN OF iHf ease.
That a conspiracy may be established
by circumstantial evidence may be con
ceded (Wharton 3 Criminal Evidence,
10 Ed. Sec ssS), but, where circum-
stances alone are relied upon, if there
be no probable hypothesis of guilt con
sistent, beyond reasonable doubt,
with the facts Of the case. the defend
ant must be acquitted (Wharton, SUI
Pra, See. 10).
"The author cites in support of the
text, Beavers v. State 50 Ind. $50, 537,
IN which the court. considering the par
tieular circumstances Of that case,
says:
:" We can conceive Of no hypothesis
by which in the order of natural causes
aud effects, the facts proved can be ex
planned consistently with the innocence
If the prisoner; and this is the true
test Of cireumstantial evidence It ex-
e'udes all reasonable doubt of the pris-
oner's guilt
!" We deem IL unnecessary to com
ment upon all Of the circumstances of
fered in support Of the alleged con
spiracv. Suffice il TO say that we think
the evidence insufficient and that if
WAS error for the court below not to
sustain NfAFnAaUi = HiNtiuA 10 eAiAkE.
Assuming that the circumstances
that the witness Labigan saw a man
in the cliff Of rocks near the place
where the shooting occurred, is suffi-
cient to establish that the man so
seen fred the fatal shots, proof that
the defendant was that man rests upon
the circumstance that on the day of
the shooting the defendant was wear
ing black hat belonging to Jake
Leick and that the witness, while
jumping a distance Of eight feet, and
glancing for a second or a fraction of
"a second in the direction Of the man
assumed to have done the shooting
1862 feet distant was able to identify
the hat worn by the defendant as the
hat seen upon the man in the cleft Of
the adjacent rocks. The hat in ques-
tion does not appear to have been one
OF an unusual pattern. We think the
ability Of n witness to be able posi-
lively to identify such an article of
apparel. under the circumstances de
tailed in the testimony il manifestlv
improbable. Such Identification alone
should not be considered of sufficient.
weight to warrant a conviction.
'There was some testimony intro
duced without objection which we
think should not be permitted upon 3
now trial We refer TO the testimony Of
the witness Labigan purporting TO de
tail conversation with the deceased
al the time Of hearing two shots fired
shortly before the killing in which he
assumes, in effect, in his remarks to
deceased, that the shots were fred by
persons connected with the Gold Note
Mining company
"If this Court were confident that
no other evidence could be introduced
upon another trial than that held to be
az missable upon the present record, we
should order the defendant discharged
AS it clearly appears, however, that
murder was committed by someone and
other evidence may exist tending clear
~ to establish the identity Of the mur-
derer, the case will be remanded for
new trial.
Judgment reversed and cause re-
nanded for new trial.