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error, in the absence of evidence tending to reduce the killing to manslaughter. 11. SAME-REFUSAL TO GIVE INSTRUCTIONS EMBODIED IN THOSE GIVEN.

It is not error to refuse instructions embodied in those given. 12. SAME—CREDIBILITY OF TESTIMONY OF ACCUSED-INSTRUCTIONS.

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. 13. INDIANS-CRIMES BY INDIANS.

Under Comp. Laws, $ 4635, 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.

slefendants 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. Il cld, 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.] 5. SAME--IIARMLESS ERROR-ERRONEOU'S ADMISSION OF CONFESSION.

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. Dis. 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, $81103, 1107-1171.] 7. SAME--ERRONEOUS ADMISSIOX OF EVIDENCE -ILARMLESS ERROR.

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. Xote.-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.] 9. IIOMICIDE INSTRUCTIONS-INTOXICATION.

On a trial for murder in the first degree, instructions that drunkenness can only be considered for the purpose of determining the degreof the crime, and for this purpose must be ri 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 accusea 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, 60.5.] 10. CRIMINAL LAW-INSTRUCTIONS APPLICABILITY TO CASE.

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

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 de

Thereafter, on the 23d day of Mareh, 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 defendant, Ibapah, who is

a Goshute Indian, detailed with considerable of the little tie house in which the body lay. particularity the manner in which the mur The body had been thrown on a coal fire, der was accomplished. According to his tes. and yas burning at the time. The imprint timony. the defendant, Johnny, and himself of a bloody hand, clearly defined, was visible had been drinking quite frequently of jamai on the ties lying just west of the tie house. ca ginger during the day, and had also secur Several ties had been thrown into this tie ed a pint flask of whisky, which they con house near the fire, and one or two ties onto sumed. Some time during the night they the fire. I saw two knives; one lying on observed the light caused by the fire in the the pile of ties where the imprint of the land tie house. They went to the inclosure and was outside, and the other in the tie house climbed down in it, finding the man whom between the man's leg and a tie. The man's they afterwards killed. lying down on some shoe was near his foot. It had been cut ties. The first sat down upon a tie. and from the top to the sole. There were bloody then asked the man to go and get them some stains on and in the shoe. The pockets of whisky. Johnny gave him half a dollar, and the coat and trousers had been turned inside the man said. "I can't go up there: I got one out. Part of the clothing was burned, and leg." What happened next the witness said the pockets had been torn away and thrown he did not remember because he was too into the fire and on the ground in the tie drunk. IIe then testified that the man put house." the money in his pocket, and Johnny asked It would seem from the record that there him to give it back. He did not know wheth was some manifestation upon the part of er he gave the money back, but Johnny each of the defendants to seek to gain some said to him. Ibarah, "Let's go and kill that advantage at the expense of the other, alman. I hold both hands and you cut throat.” though both relied upon drunkenness in Ibarah said. "All right.” Johnny then gave mitigation of the offense. According to their Ibapah his knife, and held the man's hands

testimony, they had consumed during the day crossways by the wrists. Ibapah then went several lottles of jamaica ginger, which conand got the man hy his coat. The man tried tained, according to the testimony, about 70 to raise up and Ihapal put his knee on his per cent. of alcohol; and a pint flask of breast, holding his knife in his right hand.

whisky. Charles Brown, a witness on beJohnny then said, "Go ahead and cut him." half of the defendants, testified that he saw He held the coat with his left hand and with

them at Montello the afternoon and evening the right hand he put the knife against his preceding the murder. He saw them first throat, and Johnny says, "Cut him hard." about 2 o'clock, when they seemed to be under Then he killed him. After they had killed the influence of liquor, drunk enough to be him Johnny looked in the man's pockets. boisterous. He saw them again between Johnny then cut off the man's shoe, saying. 4 and 5 o'clock, coming in front of a saloon, "There is money in shoe sometimes." Then

and they were talking quite loud, and were they both said, "Let's put him on top of fire."

drunk. IIe, in company with a man named Johnny said, "Let's put on lots of ties and

Richard Cromley, saw them again that night burn him up." They put the body on the fire,

between 11 and 12 o'clock. They were quite and put ties on it also. They then left:

drunk then, trying to help each other along. Ibarah taking with him the dead man's

They were talking very loud and boisterous. overcoat, and went to the camp of Johnny's

1. t'pon the case being called for trial, the father. Upon arriving there Johnny asked

defendants jointly interposed a challenge to for something to eat, and Ibapah told that

the panel, upon the ground that there was a they had killed a man. The testimony of material departure from the forms prescribJohnny, who is a Shoshone Indian, raries

ed by the statute in respect to the drawing from that of Ibarah, in that he testified he

and the return of the jury. The irregulardid not know much about what happenel:

ity complained of is alleged to have consistthat he was too drunk to remember. Ile tes ed in this: That at the meeting of the board tified that he remembered holding the mur of county commissioners, for the purpose of dered man's hands, and helping to place hijn selecting from the qualified electors the numon the fire, but further than that he had no I:er of trial jurors that would be required for recollection of the occurrence whatever. attendance upon the district court until the The condition in which the body of the de

next annual selection, one A. G. Dawley, ceased was found the morning following the

county clerk of the county of Elko, was murder is described be one of the witnesses

present, and did then and there nominate, for the state as follows: "The throat had

suggest, and recoininend a large number of been cut from ear to ear. The left eye had elertors to be selected as such jurors, to wit, been stabbed out. There was a deep wound more than 20, and that the names so selected in the left cheek. The right arm had been and nominated by said Dawley were red broken so that the bone protruded through upon the minutes of the board, and their the clothing. There were bruises on the body. names deposited in the jury box. Also, that The clothing had been almost torn off the a large number of the persons selected by the body. Blood stains were visible all around, board at the time were selected from old and a pool of blood was in the south corner | jury lists of said county of Elko, and that

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 (ase 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 disallowed.”

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 confornity 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. It 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 suflicient, 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, S$ 4325–4327) provide as follows:

"4325. Sec. 360. When two or more defend. ants 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.

little or no evidence against him, nor was "4327. Sec. 362. When two or more per the purpose sought to be accomplished by sons are included in the same Indictment and the submission of his case upon the close the court is of opinion that in regard to a of the state's testimony, the use of his testiparticular defendant there is not sufficient mony in behalf of his codefendant. evidence to put him on his defense, it shall

4. Confessions of the defendant Ibapah order him to be discharged from the indict

were admitted in evidence, over the objecment, before the evidence shall be deemed

tion of his counsel that it did not appear closed, that he may be a witness for his co

that such confessions were given voluntardefendant."

ily; but, upon the contrary, were obtained A defendant, jointly indicted with another, by reason of fear, inducements, and threats. who intends to demand a separate trial, must

One of these confessions was made to the make his motion before the formation of the

officers upon the evening of the defendant's jury is commenced. State v. McLane, 15

arrest, and before he was placed in jail. Nev. 359. To have permitted the defendant

The other confession was made the followJohnny to have his case submitted and determined upon the conclusion of the state's case,

ing morning, in the presence of the sheriff, would, in effect, have given him a separate

to representatives of the local newspapers. trial, which would not only have been in

The latter confession was reduced to writplain violation of the statute, but might have

ing, read over to the defendant, and signed been fatal error so far as Ibapah's case was


by him by affixing his mark thereto. concerned. Counsel for defendant Johnny

first confession was made while the defendin his brief, says: “It is the privileye of a

ant was in the custody of Guy Harbin, the defendant jointly tried with another, when

deputy sheriff, a Mr. Brown, and a Mr. there is little or no evidence against him and

Stanley. during the temporary absence of he is willing to be tried on the evidence of

the sheriff. It would appear from the evithe prosecution, to demand that the jury pass

dence that the defendant was told by Mr. upon his case before the other defendant Stanley that the defendant Johnny had told opens his defense; and the jury should be

of the crime, and that he further said to charged by the court, and consider their

him: “You might as well tell the truth." verdict as if the case had no connection with

Peyond this there does not appear to have any other." To support this contention,

been anything said to the defendant to incounsel cites Vybee v. State, 36 Tex. 366.

duce him to make a confession. Counsel We think counsel's position is not only placed the defendant Ibapah upon the stand not supported by the authority rited, but to recite the circumstances of the confesthat it is clearly not the law. We quote

sion, but he did not vary in any particular from the authority cited the following: "Aft- i vlegree in his testimony from that recited er the defendants had withdrawn their mo by the witness for the state. He did, howtion for a severance, and elected to he joint ever, say that it was Mr. Harbin who told ly tried, they could at any time after the him that "Johnny had already told about state had closed its evidence, if there was it.” He then testified: “When he told me little or no evidence against one or the other that it scared me more. Everything that of them, have demanded that the jury should

I told then was true. I was scared very decide upon the case of such one of them: much that night." All that can be made of and in all such cases the jury should be the endant's testimony is, that he was charged by the court, and they should con

scared when he made his confession to Ilarsider of their verdict, in the same manner bin, but he iterates upon the stand that as if the case had no connection whatever What he told that night was the truth. The with any other, and their verdict should be only ohjert in excluding testimony given guilty or not guilty, as the case may be." under threats, duress, or upon promise of It is clearly shown by the decision that reward. is, that such testimony might not both of the defendants must join in the re be the truth. A defendant cannot be prejquest for such a submission, and that the udiced by the admission of a confession purpose of it is so that the other defend which he voluntarily acknowledges, under ant "shall not be deprived of the evidence oath, is the truth. But the fact that he of codefendants who are not inculpated by was imbued with fear occasioned by his the state's evidence." In this state we have arrest and a knowledge of guilt, would not a simpler way of accomplishing the same alone make his confession inadmissible. All result. See Comp. Laws, $ 4327, supra. In that has been said about the confession any event, both under the Texas procedure made by the defendant Ibanah to deputy and that of this state, there must not he / sheriff Harbin and the others, upon the evsufficient evidence, in the judgment of the ening of his arrest, will apply to his concourt, to put him on his defense before his fession made the following morning to the codefendant can, in the manner required, | newspaper men. The sheriff testified as avail himself of his testimony if he so de- | follows with reference to the latter confessires. Johnny was not in the fortunate sion: “When Ibapah was brought out, I

told him if he felt like it he could make the effect that on the night of the killing a statement to these men. I told him that the two defendants were at his camp, and it was not necessary unless he wanted to, that Ibapah said in the presence of Johnny, and he said he would tell them. Even if that "Johnny held the man's hands while there was a question as to the admissibility Ibapah cut his throat.” We doubt if the recof these confessions, the error, if any, be ord of this testimony will warrant a conclucame cured when the defendant became sion that it was hearsay. But, conceding a witness in his own behalf, anil corrobo that it was, the error in admitting it was rated every statement contained in his var harmless, for other witnesses testified to the ious confessions. People v. Ketchum, 73 same conversation, and Johnny, as a witness Cal. 633, 15 Pac. 353; People v. Daniels, in his own behalf, also testified to the same 70 Cal. 521, 11 Pac. 635; 12 Cyc. 466.

effect. People v. Marseiler, 70 Cal. 98, 11 5. After Ibapah had testified in his own de Pac. 303. fense, and rested his case, counsel for John 7. Upon the law of drunkenness as a deny called as a witness Antelope Jack, Chief fense to crime, the court gave instructions of the Goshouts, to testify to the character Nos. 26 and 27 of its own motion, and deof Ibapah. To his testimony counsel for Iba- fendant's requested instruction No. 5, which pah interposed the following oljection: "I | instructions read as follows: object to placing any witnesses on the stand (20) It is a well-settled rule of law that with reference to Ibapah by the codefendant drunkenness is no excuse for the commission Johnny, as it cannot possibly touch the ques of a crime. Temporary insanity, produced tion as to who was the instigator of this by intoxication does not destroy responsibilcrime." The objection was overruled, and ity, when the party, when sane and responwe quote from the record the following tes sible made himself voluntarily intoxicated; timony of the witness: “Wy name is In and drunkenness forms no defense whatever telope Jack. I live at Deep Creek. I live to the fact of guilt, for when a crime is there long time. I know Ibapalı, since he committed by a party while in a fit of inWas small boy-ever since his father give toxication, the law will not allow him to him whisky. Ibapal's father all the time avail himself of his own gross vice and misgive him whisky. He is a good boy-every

good boy-every- | conduct to shelter himself from the legal conbody know he is a good boy. Everyboily think sequences of such crime. Evidence of drunkwhen he grow up he was a good boy. Last enness can only be considered by the jury summer Indians think about him, maybe he for the purpose of determining the degree kill white man and maybe he kill Inilian. of the crime, and, for this purpose, it must Everybody around Deep Creek is afraid of be received with great caution. lhapah. Ibapah was a little boy when his "(27) In this case if you find that the defather first gave him whisky. I think Iba fendants unlawfully and with malice aforepah was a good boy when he was little. thought, as already defined to you, killed the When he was a boy he was always a good person designated as Fred Foreman, it is boy. When he get big everybody was afraid murder and if such killing was willful, deof him. When he got drunk he was had: liberate, and premeditated, or was done in When he was not drunk he good boy." the perpetration or attempts to perpetrate Conceding, without deciding, that it was error robbery, it is murder of the first degree, otherto have admitted this testimony, we are un wise it is murder of the second degree; and able to see how it could have been prejuilis in determining the degree, any evidence tendcial to the defendant Ibapah. Ibapah had ing to show the mental status of the defendalready testified that he had killed the de

ants is proper for the consideration of the ceased by cutting his throat while Johnny jury. The fact, if it be a fact, that the deheld his hands, and that thereafter they had fendants were drunk, does not render the thrown the body upon the fire. He was not

act less criminal, and in that sense it is not seeking to establish innocence of crime, but

available as an excuse, but there is nothing his effort was directed to avoiding a convic in this to exclude it as evidence upon the tion of murder in the first degree, by show

question as to whether the act was deliberate ing that he was in a drunken condition at

and premeditated or was committed in the the time he killed the deceased, and was

carrying out of an intent to rob. Presumptherefore incapable of that premeditation tively, every killing is murder, but so far as which is an essential element of murder in

the degree is concerned, no presumption aristhe first degree. Evidence which tended to es from the mere fact of killing, considered show that intoxicating liquor had the effect

separately and apart from the circumstances of transforming him from a good boy into a under which the killing occurred. The quesdangerous character, we think could not have

tion is one of fact to be determined by the prejudiced the defense, but would rather

jury from the evidence in the case, and it is tend to strengthen it.

not a mere legal conclusion, and drunkenness, 6. Counsel for Johnny assigns error in the as evidence of a want of premeditation or of refusal of the court to strike out, upon the an intent to rob, is not within the rule which ground that it was hearsay, the testimony excludes it as an excuse. Drunkenness of an Indian witness called "Captain Jim," neither excuses the offense nor avoids the who testified upon the part of the state, to punishment which the law inflicts, when the

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