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defendants are jointly indicted they shall be jointly tried, unless for good cause shown the court shall otherwise direct, and the court may at any time before defendant has gone into his defense, on the application of the district attorney, direct any defendant to be discharged from the indictment, etc. Two persons jointly indicted were jointly tried. After the state had rested defendant rested, and moved that the case be given to the jury at that time, before any testimony was offered on behalf of the codefendant. Held, that the motion was properly denied. for, if granted, it would have given the defendant a separate trial, which could only be granted on application made before the commencement of the formation of the jury.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1386.]


A defendant cannot be prejudiced by the admission of his confession which he voluntarily acknowledges under oath is true.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 3138. 3139.] 6. SAME-CONFESSIONS-ADMISSIBILITY.

That one was imbued with fear, occasioned by his arrest for crime, and a knowledge of his guilt thereof, does not alone make his confession inadmissible.

[Ed. Note.-For cases in point, see vol. 14. Cent. Dig. Criminal Law. §§ 1163, 1167–1171.] 7. SAME--ERRONEOUS ADMISSION OF EVIDENCE


Where, on a trial for homicide, defendant admitted the killing, and sought to avoid a conviction by showing that he was drunk at the time, the admission of evidence that defendant when intoxicated was transformed into a dangerous character was not prejudicial to him.

[Ed. Note. For cases in point, see vol. 15. Cent. Dig. Criminal Law, §§ 3088, 3137.] 8. SAME.

The error in admitting improper evidence in a criminal case to establish a fact testified to by other witnesses, including accused when testifying as a witness in his own behalf, is harmless.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3138.]


On a trial for murder in the first degree, instructions that drunkenness can only be considered for the purpose of determining the degree of the crime, and for this purpose must be r ceived with great caution; that presumptivei. every killing is murder: that in cases of premeditated murder the fact of drunkenness is material that the jury must discriminate between the condition of mind merely excited by intoxicating drink, and yet capable of forming a deliberate intent to take life. and such a prostration of the faculties as renders a man incapable of forming the intent that the evidence must convince the jury that the deliberate, premeditated design to murder was intentionally formed; that, in considering whether such a design was formed, the jury must consider the evidence of drunkenness, and, if accused was too much intoxicated to form such a de liberate and premeditated purpose, he cannot be found guilty of murder in the first degree, etc.-correctly state the law on the defense of drunkenness.

[Ed. Note.--For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 45, 605.]


The refusal to charge on the law of manslaughter on a trial for homicide is not

error, in the absence of evidence tending to reduce the killing to manslaughter.


It is not error to refuse instructions embodied in those given.


Where the court charged that the jury must consider all the evidence, an instruction that the evidence of accused, if convincing, could be acted on, otherwise rejected, was not erroneous, as leading the jury to fail to give due consideration to the testimony of accused.


Under Comp. Laws, § 4655, providing that the laws concerning crimes and punishments and the laws concerning proceedings in criminal cases shall extend to the Indians in the state, etc., an Indian on trial for crime is subject to the same laws, as govern in the case of a white man.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Indians, § 22.]

Appeal from District Court, Elko County. Johnny, an Indian, and another were convicted of murder in the first degree, and they appeal. Affirmed.

F. S. Gedney and E. J. L. Taber, for appellants. James G. Sweeney, Atty. Gen., and Otto T. Williams, Dist. Atty., for the State.

NORCROSS, J. The defendants, on the 27th day of December, 1905, killed a human being, designated in the indictment as Fred Foreman, at Montello in the county of Elko, by cutting and stabbing him with knives. They were thereafter jointly indicted by the grand jury of Elko county for the crime of murder, jointly tried upon such indictment, and both convicted of murder in the first degree. Thereafter, on the 23d day of March, 1906. judgment of death was pronounced upon them. They appeal to this court from the judgment, and from an order denying their motion for a new trial.

Both upon the trial and upon this appeal, the defendants have been each represented by special counsel, and each relies upon one or more assignments of error based upon exceptions in which the other did not join. For this reason, the case must be treated as if there were two separate appeals. Most points, however, are common to both, and will require to be noticed but once. The evidence in this case shows that the man killed by the defendants was one of the world's unfortunates, who was traveling, friendless and alone, across the state. He had but one leg, and walked with a crutch. Upon the night of the murder he was sleeping in an inclosure made of railroad ties, in the center of which was a fire. This inclosure was entered by the defendants, according to their own testimony, some time during the night, probably about midnight. At the trial the defendants made no attempt to disclaim responsibility for the killing, but, upon the contrary, admitted it in their own testimony. The defendaut, Ibapah, who is

of the little tie house in which the body lay. The body had been thrown on a coal fire, and was burning at the time. The imprint of a bloody hand, clearly defined, was visible on the ties lying just west of the tie house. Several ties had been thrown into this tie house near the fire, and one or two ties onto the fire. I saw two knives; one lying on the pile of ties where the imprint of the hand was outside, and the other in the tie house between the man's leg and a tie. The man's shoe was near his foot. It had been cut from the top to the sole. There were bloody stains on and in the shoe. The pockets of the coat and trousers had been turned inside out. Part of the clothing was burned, and the pockets had been torn away and thrown into the fire and on the ground in the tie house."

It would seem from the record that there was some manifestation upon the part of each of the defendants to seek to gain some advantage at the expense of the other, although both relied upon drunkenness in mitigation of the offense. According to their testimony, they had consumed during the day several bottles of jamaica ginger, which contained, according to the testimony, about 70 per cent. of alcohol; and a pint flask of whisky. Charles Brown, a witness on behalf of the defendants, testified that he saw them at Montello the afternoon and evening preceding the murder. He saw them first about 2 o'clock, when they seemed to be under the influence of liquor, drunk enough to be boisterous.

a Goshute Indian, detailed with considerable particularity the manner in which the murder was accomplished. According to his testimony, the defendant, Johnny, and himself had been drinking quite frequently of jamaica ginger during the day, and had also secured a pint flask of whisky, which they consumed. Some time during the night they observed the light caused by the fire in the tie house. They went to the inclosure and climbed down in it. finding the man whom they afterwards killed. lying down on some ties. They first sat down upon a tie, and then asked the man to go and get them some whisky. Johnny gave him half a dollar, and the man said. "I can't go up there: I got one leg." What happened next the witness said he did not remember because he was too drunk. He then testified that the man put the money in his pocket, and Johnny asked him to give it back. He did not know whether he gave the money back, but Johnny said to him. Ihapah. "Let's go and kill that man. I hold both hands and you cut throat." Ibapah said. "All right." Johnny then gave Ibapah his knife, and held the man's hands crossways by the wrists. Ibapah then went and got the man by his coat. The man tried to raise up, and Ibapah put his knee on his breast, holding his knife in his right hand. Johnny then said, "Go ahead and cut him." He held the coat with his left hand and with the right hand he put the knife against his throat. and Johnny says, "Cut him hard." Then he killed him. After they had killed him Johnny looked in the man's pockets. Johnny then cut off the man's shoe, saying, "There is money in shoe sometimes." Then they both said, "Let's put him on top of fire." Johnny said. "Let's put on lots of ties and burn him up." They put the body on the fire, and put ties on it also. They then left: Ibapah taking with him the dead man's overcoat, and went to the camp of Johnny's father. Upon arriving there Johnny asked for something to eat, and Ibapah told that they had killed a man. The testimony of Johnny, who is a Shoshone Indian, varies from that of Ihapah, in that he testified he did not know much about what happened: that he was too drunk to remember. He testified that he remembered holding the murdered man's hands, and helping to place him on the fire, but further than that he had no recollection of the occurrence whatever. The condition in which the body of the deceased was found the morning following the murder is described by one of the witnesses for the state as follows: "The throat had been cut from ear to ear. The left eye had been stabbed out. There was a deep wound in the left cheek. The right arm had been broken so that the bone protruded through the clothing. There were bruises on the body. The clothing had been almost torn off the body. Blood stains were visible all around, and a pool of blood was in the south corner | jury lists of said county of Elko, and that

He saw them again between

4 and 5 o'clock, coming in front of a saloon, and they were talking quite loud, and were drunk. He, in company with a man named Richard Cromley, saw them again that night between 11 and 12 o'clock. They were quite drunk then, trying to help each other along. They were talking very loud and boisterous. 1. Upon the case being called for trial, the defendants jointly interposed a challenge to the panel, upon the ground that there was a material departure from the forms prescribed by the statute in respect to the drawing and the return of the jury. The irregularity complained of is alleged to have consisted in this: That at the meeting of the board. of county commissioners, for the purpose of selecting from the qualified electors the number of trial jurors that would be required for attendance upon the district court until the next annual selection, one A. G. Dawley, county clerk of the county of Elko, was present, and did then and there nominate, suggest, and recommend a large number of electors to be selected as such jurors, to wit, more than 20, and that the names so selected and nominated by said Dawley were entered upon the minutes of the board, and their names deposited in the jury box. Also, that a large number of the persons selected by the board at the time were selected from old

many of the names so selected were there suggested, designated, and recommended by the said Dawley. The court heard the testimony of several witnesses relative to the manner of selecting the trial jurors for the county for the year in question, and then made his finding, and delivered his decision on the motion as follows: "From the testimony produced here on the hearing of the challenge, the court finds that all of the persons whose names were put on the jury list were selected by the board of county commissioners; that none of them were selected by Mr. Dawley as alleged in the challenge, and also find that it is not true that selections were made from old jury lists, although if a jury list had been used by the commissioners for the purpose of finding out the names, it would have been perfectly proper. The book used was a book showing jury service, and it was proper for the commissioners to consult that book. I do not find that, although Mr. Dawley in certain cases said that certain men would be good jurymen; I do not find that in any such case the commissioners failed to exercise their own judgment in making up the list. There has been no injury shown to the defendants. For these reasons there has been no material departure from the forms prescribed by the statute. The challenge is


We have carefully reviewed the transcript of the evidence in the record upon the motion, and think the same fully supports the findings and conclusions of the trial court. Mr. Dawley was the clerk of the court, as well as the clerk of the board of county commissioners. He had kept a record of jury service which covered a period of nearly 10 years. Although he could not legally select, nor properly urge the selection of any juror, we see no objection to the board of county commissioners taking advantage of information in the possession of their clerk, so long as they exercise their own judgment in conformity with the statute, and that, we think, the evidence shows they did in this case. If any of the men whom Mr. Dawley said would make good jurors were put on the general list of 255 for the year by the commissioners, before or after he had so stated, it is not shown that any of them were among the 12 who tried the defendants, or were on the panel drawn from the box and in attendance on court at the time of the trial. cannot, we think, be said, nor was it claimed, that defendants did not have the benefit of a fair and impartial jury; nor that they were deprived of any substantial right, or were in any way prejudiced by the manner in which the jury was selected. 12 Ency. Pl. & Pr. 277.


2. It is contended that the indictment is defective, and that the court should have sustained defendants' objection to the same. The body of the indictment reads as follows:

"Defendants Johnny, an Indian (whose other name, if any, is to the grand jury unknown) and Joe Ibapah, an Indian (whose other name, if any, is to the grand jury unknown) are accused by the grand jury of the county of Elko, state of Nevada, by this indictment of the crime of murder, committed as follows, to wit: That the said defendants Johnny, an Indian, and Joe Ibapah, an Indian, on or about the 27th day of December, A. D. 1905, in the county of Elko, state of Nevada, and before the finding of this indictment, without authority of law, feloniously, willfully, unlawfully and of their malice aforethought, killed a certain human being, herein designated as Fred Foreman, whose true name is to the grand jury unknown, by striking, cutting, and stabbing the said Fred Foreman with knives; whereof, and by means of the striking, cutting, and stabbing aforesaid, the said Fred Foreman then and there died." Counsel for appellants claim that the indictment is defective in this: "That it does not in the body thereof charge the defendants of the crime of murder or state that murder was committed." Also, that "the specific acts alleged, viz., the cutting, etc., are not alleged to have been done with intent to kill." The indictment follows substantially the form suggested by our statute. Comp. Laws, § 4200. The act charged as the offense is, we think, clearly and distinctly set forth in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and with such a degree of certainty as to enable a court to pronounce judgment upon a conviction according to the right of the case, and it is therefore sufficient. Comp. Laws, § 4208.

3. After the state had rested its case, counsel for the defendant Johnny, announced that his client, also, rested, and on his behalf moved "that the case be given to the jury at this time before any testimony is offered on behalf of the defendant Ibapah." Counsel then stated to the court as a reason for making the motion that, "Mr. Taber, counsel for Ibapah, informs me that the defendant Ibapah will take the stand in his own behalf, and I believe Ibapah's testimony will be prejudicial to the defendant Johnny." The court, after taking time to consider the motion, denied it, and this ruling is assigned as error.

Sections 360 to 362, inclusive, of our Criminal Practice Act (Comp. Laws, §§ 4325-4327) provide as follows:

"4325. Sec. 360. When two or more defendants are jointly indicted for any offense, they shall be jointly tried, unless for good cause shown by the prosecution or defense, the court shall otherwise direct.

"4326. Sec. 361. When two or more persons are included in the same indictment, the court may at any time before the defendant has gone into his defense, on the application of the district attorney, direct any defendant

to be discharged from the indictment, that position that it could be said there was he may be a witness for the people.

"4327. Sec. 362. When two or more persons are included in the same Indictment and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it shall order him to be discharged from the indictment, before the evidence shall be deemed closed, that he may be a witness for his codefendant."

A defendant, jointly indicted with another, who intends to demand a separate trial, must make his motion before the formation of the jury is commenced. State v. McLane, 15 Nev. 359. To have permitted the defendant Johnny to have his case submitted and determined upon the conclusion of the state's case, would, in effect, have given him a separate trial, which would not only have been in plain violation of the statute, but might have been fatal error so far as Ibapah's case was concerned.

Counsel for defendant Johnny

in his brief, says: "It is the privilege of a defendant jointly tried with another, when there is little or no evidence against him and he is willing to be tried on the evidence of the prosecution, to demand that the jury pass upon his case before the other defendant opens his defense; and the jury should be charged by the court, and consider their verdict as if the case had no connection with

any other." To support this contention, counsel cites Vybee v. State, 36 Tex. 366. We think counsel's position is, not only not supported by the authority cited, but that it is clearly not the law. We quote from the authority cited the following: "After the defendants had withdrawn their motion for a severance, and elected to be jointly tried, they could at any time after the state had closed its evidence, if there was little or no evidence against one or the other of them, have demanded that the jury should decide upon the case of such one of them: and in all such cases the jury should be charged by the court, and they should consider of their verdict, in the same manner as if the case had no connection whatever with any other, and their verdict should be guilty or not guilty, as the case may be." It is clearly shown by the decision that both of the defendants must join in the request for such a submission, and that the purpose of it is so that the other defendant "shall not be deprived of the evidence of codefendants who are not inculpated by the state's evidence." In this state we have a simpler way of accomplishing the same result. See Comp. Laws, § 4327, supra. In any event, both under the Texas procedure and that of this state, there must not he sufficient evidence, in the judgment of the court. to put him on his defense before his codefendant can, in the manner required, avail himself of his testimony if he so desires. Johnny was not in the fortunate

little or no evidence against him, nor was the purpose sought to be accomplished by the submission of his case upon the close of the state's testimony, the use of his testimony in behalf of his codefendant.

4. Confessions of the defendant Ibapah were admitted in evidence, over the objection of his counsel that it did not appear that such confessions were given voluntarily; but, upon the contrary, were obtained by reason of fear, inducements, and threats. One of these confessions was made to the officers upon the evening of the defendant's arrest, and before he was placed in jail. The other confession was made the following morning, in the presence of the sheriff, to representatives of the local newspapers. The latter confession was reduced to writing, read over to the defendant, and signed by him by affixing his mark thereto. The first confession was made while the defendant was in the custody of Guy Harbin, the deputy sheriff, a Mr. Brown, and a Mr. Stanley, during the temporary absence of the sheriff. It would appear from the evidence that the defendant was told by Mr. Stanley that the defendant Johnny had told of the crime, and that he further said to him: "You might as well tell the truth." Beyond this there does not appear to have been anything said to the defendant to induce him to make a confession. Counsel placed the defendant Ibapah upon the stand to recite the circumstances of the confession, but he did not vary in any particular degree in his testimony from that recited by the witness for the state. He did, however, say that it was Mr. Harbin who told him that "Johnny had already told about it." He then testified: "When he told me that it scared me more. Everything that I told then was true. I was scared very much that night." All that can be made of the defendant's testimony is, that he was scared when he made his confession to Iarbin, but he iterates upon the stand that what he told that night was the truth. The only object in excluding testimony given under threats, duress, or upon promise of reward, is, that such testimony might not be the truth. A defendant cannot be prejudiced by the admission of a confession which he voluntarily acknowledges, under oath, is the truth. But the fact that he was imbued with fear occasioned by his arrest and a knowledge of guilt, would not alone make his confession inadmissible. All that has been said about the confession made by the defendant Ibapah to deputy sheriff Harbin and the others, upon the evening of his arrest, will apply to his confession made the following morning to the newspaper men. The sheriff testified as follows with reference to the latter confession: sion: "When Ibapah was brought out, I

told him if he felt like it he could make a statement to these men. I told him that it was not necessary unless he wanted to, and he said he would tell them. Even if there was a question as to the admissibility of these confessions, the error, if any, became cured when the defendant became a witness in his own behalf, and corroborated every statement contained in his various confessions. People v. Ketchum, 73 Cal. 635, 15 Pac. 353; People v. Daniels, 70 Cal. 521, 11 Pac. 655; 12 Cyc. 466.


5. After Ibapah had testified in his own defense, and rested his case, counsel for Johnny called as a witness Antelope Jack, Chief of the Goshouts, to testify to the character of Ibapah. To his testimony counsel for Ibapah interposed the following objection: "I object to placing any witnesses on the stand with reference to Ibapah by the codefendant Johnny, as it cannot possibly touch the question as to who was the instigator of this crime." The objection was overruled, and we quote from the record the following testimony of the witness: "My name is Antelope Jack. I live at Deep Creek. I live there long time. I know Ibapah, since he was small boy-ever since his father give him whisky. Ibapah's father all the time give him whisky. He is a good boy-everybody know he is a good boy. Everybody think when he grow up he was a good boy. summer Indians think about him, maybe he kill white man and maybe he kill Indian. Everybody around Deep Creek is afraid of Ibapah. Ibapah was a little boy when his father first gave him whisky. I think Ibapah was a good boy when he was little. When he was a boy he was always a good boy. When he get big everybody was afraid of him. When he got drunk he was bad: When he was not drunk he good boy." Conceding, without deciding, that it was error to have admitted this testimony, we are unable to see how it could have been prejudicial to the defendant Ibapah. Ibapah had already testified that he had killed the deceased by cutting his throat while Johnny held his hands, and that thereafter they had thrown the body upon the fire. He was not seeking to establish innocence of crime, but his effort was directed to avoiding a conviction of murder in the first degree, by showing that he was in a drunken condition at the time he killed the deceased, and was therefore incapable of that premeditation which is an essential element of murder in the first degree. Evidence which tended to show that intoxicating liquor had the effect of transforming him from a good boy into a dangerous character, we think could not have prejudiced the defense, but would rather tend to strengthen it.

6. Counsel for Johnny assigns error in the refusal of the court to strike out, upon the ground that it was hearsay, the testimony of an Indian witness called "Captain Jim," who testified upon the part of the state, to

the effect that on the night of the killing the two defendants were at his camp, and that Ibapah said in the presence of Johnny, that "Johnny held the man's hands while Ibapah cut his throat." We doubt if the record of this testimony will warrant a conclusion that it was hearsay. But, conceding that it was, the error in admitting it was harmless, for other witnesses testified to the same conversation, and Johnny, as a witness in his own behalf, also testified to the same effect. People v. Marseiler, 70 Cal. 98, 11 Pac. 503.

7. Upon the law of drunkenness as a defense to crime, the court gave instructions Nos. 26 and 27 of its own motion, and defendant's requested instruction No. 5, which

instructions read as follows:

"(26) It is a well-settled rule of law that drunkenness is no excuse for the commission of a crime. Temporary insanity, produced by intoxication does not destroy responsibility, when the party, when sane and responsible made himself voluntarily intoxicated; and drunkenness forms no defense whatever to the fact of guilt, for when a crime is committed by a party while in a fit of intoxication, the law will not allow him to avail himself of his own gross vice and misconduct to shelter himself from the legal consequences of such crime. Evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of the crime, and, for this purpose, it must be received with great caution.

"(27) In this case if you find that the defendants unlawfully and with malice aforethought, as already defined to you, killed the person designated as Fred Foreman, it is murder and if such killing was willful, deliberate, and premeditated, or was done in the perpetration or attempts to perpetrate robbery, it is murder of the first degree, otherwise it is murder of the second degree; and in determining the degree, any evidence tending to show the mental status of the defendants is proper for the consideration of the jury. The fact, if it be a fact, that the defendants were drunk, does not render the act less criminal, and in that sense it is not available as an excuse, but there is nothing in this to exclude it as evidence upon the question as to whether the act was deliberate and premeditated or was committed in the carrying out of an intent to rob. Presumptively, every killing is murder, but so far as the degree is concerned, no presumption arises from the mere fact of killing, considered separately and apart from the circumstances under which the killing occurred. The question is one of fact to be determined by the jury from the evidence in the case, and it is not a mere legal conclusion, and drunkenness, as evidence of a want of premeditation or of an intent to rob, is not within the rule which excludes it as an excuse. Drunkenness neither excuses the offense nor avoids the punishment which the law inflicts, when the

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