Volume 25 — Nevada Reports

Original proceeding by the State, on the relation of William Schaw and others, for writ of mandate to W. H. Noyes and others, constituting the City Council of the City of Reno, to compel respondents to execute a certain contract for the construction of a system of municipal water works. E. R. Dodge, Intervenor. The facts sufficiently appear in the opinion.

E. Cheney, District Judge. Action by the Reno Water, Land and Light Company against R. S. Osburn, and others, as the City Council of… Held: if any other construction of the statute is possible, that the legislature intended to adopt a method of letting the contract which makes it impossible to ascertain who is the lowest bidder, for it is grounded in good sense, as well as in the law, that there can be no comparison and no knowing who is the lowest bidder unless there is…

Original proceeding in quo warranto by tbe State, on the relation of R. S. Osburn, against H. H. Beck, and others, Respondents. Respondents demur to information. ’ The facts sufficiently appear in the opinion. I. The determination of this case involves the constitutionality of that certain act of the legislature of the State of Nevada, entitled “An act to disincorporate the city of Reno,” approved March __ , 1899.

E. Cheney, Judge. Action by Maria P. Hoppin, Executrix of the last will of John H. Hoppin, deceased, against The First National Bank of Winnemucea, and others, to foreclose a mortgage. From a decree for plaintiff and from an order denying a new trial, the bank appeals. The facts sufficiently appear in the opinion.

<p>Practice on Appeal — Conflicting Testimony — Credibility of Witnesses. This court will not weigh the testimony nor determine the credibility of witnesses, and, where a material conflict is shown, the verdict of the jury and the judgment of the trial court will be sustained.</p> <p>Excessive Damages — Prejudice of Jury. Upon review of the evidence: Held, that the verdict of the jury was not so excessive as to show that it was laboring under the influence of passion and prejudice.</p> <p>Practice on Appeal — Failure to Specify Errors. Under Stats. 1893, p. 89, errors not specified in the statement on motion for new trial will be disregarded.</p>

<p>Internal Revenue Stamps — Powers oe Gonoress — State Courts. That section of the war revenue law (Act of Congress, June 13, 1898) providing that no instruments not duly stamped as required shall be admitted or used as evidence in any court, is intended to apply to those courts only which have been established under the constitution of the United States and by acts of congress and to which congress can properly prescribe rules regulating the course and mode of administering justice, and does not apply to state courts. (Reversing Maynard v. Johnson, 2 Nev. 25, and Wayman v. Torreyson, 4 Nev. 124.)</p>

The facts sufficiently appear in the opinion. I. There is nothing in the statute that prohibited the court from pronouncing judgment on the petitioner, by reason of the petitioner having been jointly indicted and convicted. Nor does the statute require that a second sentence shall commence at any definite future period. Section 447 of the criminal practice act (Gen. Stats. 4327) is the only statute on the subject, and that has no application to this case.

<p>Action by the State, on the relation of the Office Specialty Manufacturing Company, a corporation, for a writ of man-damns against H. H. Beck,T. K. Hymers, and George Frazer, as the Board of County Commissioners of Washoe County.</p> <p>The facts sufficiently appear in the opinion.</p> <p>I. Mandamus is the proper remedy to be invoked by relator. It was and is the specific legal duty of respondents to allow relator’s claim, and they were not clothed with discretionary authority in the premises. (Stats. 1899, p. 60; Mau v. Liddle, 15 Nev. 271; Humboldt Co. v. Churchill Co., 6 Nev. 30; State v. Blossom, 22 Nev. 71.)</p> <p>II. That relator’s cause is attainted by fraud is an unwarranted assumption of respondents. It is based upon undisputed evidentiary matters which brings the claim strictly within the scope of the act of March 9, 1899. “ So far as the courts are concerned, the statute must be taken as expressing the free will and wish of the legislature, whatever may have been the means employed to secure its adoption, and irrespective of any agreements or understanding had between members. Such matters the courts have no power of reaching.” (Humboldt Co. v. Churchill Co., 6 Nev. 30.)</p> <p>III. The former decisions relating to the furnishing of the metallic furniture by relator to Washoe county cannot properly be considered in this case. They were rendered under the law as it then existed and upon facts, principally agreed upon, having applicability to the law at that time. The original contracts were held to be fraudulent simply because they were violative of the provision of law requiring advertisement in all cases where the consideration amounted to «$500. The act of 1899 is not limited in its operation by the amount or the value of property furnished. The evidence before the appraisers shows clearly that relator was never guilty of actual fraud. The act of 1899 provides a procedure to compel counties to do justice and is in harmony with the general doctrine of the courts that municipalities must do justice. (Norwood v. Baker,-172 U. S. 269; McConville v. St. Paul, 77 N. W. 993.)</p> <p>IV. The act of 1899 is definitive of the nature and character of the claims which it affects and affords a remedy for and the claim of relator is squarely embraced within the statutory definition.</p> <p>V. The act of 1899 itself defines the class of claims which it embraces. It must be clearly apparent that if the act was intended to affect valid and existing claims at the time of its passage the act would have been superfluous and wholly unnecessary. It seems hardly probable that the court will ascribe to the legislature an intent to do a useless thing by enacting a superfluous law. The authority of the legislature by general law to provide for the adjustment and the allowance and payment of claims against counties which are not enforceable under existing law is practically unquestioned. These curative laws have many times received the sanction of the courts. (Ritchie v. Franklin Go., 22 Wall, 67; Steines v. Franklin Go., 48 Mo. 175.)</p> <p>VI. Counsel state that the transaction out of which the furniture in question was delivered to Washoe county, has thrice been adjudged fraudulent. But we do not understand that this court or the lower court ever found actual fraud or corruption to have existed in the transaction. The facts, proven and admitted, warranted the court in declaring that the same constituted constructive fraud, further than this we do not understand that the court could, or did find, under the pleadings and the proofs. If actual fraud exists in this case it certainly then is not of the ordinary variety. Here was a very valuable lot of office furniture sold and delivered to Washoe county. The county needed and wanted it for the preservation of its public records. Prior to its sale and delivery to the county the grand jury had called the commissioners’ attention to the need of such furniture, and recommended that such need be supplied. The commissioners carried out the suggestion of the grand jury and caused to be manufactured and delivered by relator the furniture now in the clerk’s office of Washoe county, and no one has yet been found to come forward and say that the furniture was not what was wanted or was not worth every dollar that was ever asked for it.</p> <p>VII. The power of the legislature is fixed by the constitution, and courts cannot enlarge or abridge that power. There is nothing in the constitution of this state which says that the legislature may relieve one class of persons from the effect of certain acts, if occasioned in a certain way, and not in another. There is nothing in the constitution which gives the judicial branch of government the authority to determine what class of laws ought to be passed and what not, or to determine the justness or injustness of laws, or whether this law or that is up to the proper moral standard. This court, in a very able opinion by Chief Justice Lewis, found in 5 Nev. 283-314, discusses the powers and prerogatives of the three coordinate branches of our state government. We quote from that opinion, beginning on page 293: “But, notwithstanding this very evident investment of the legislature with the sovereign and omnipotent political power of the people, it has been assumed by some judges, and so argued in this case, that the courts have the right to annul an act of the legislature upon the sole ground that it is unjust; or, as it is put"in this case, opposed to natural justice; or, by some judges, as against the ‘ great principles of eternal right.’ We believe, however, that such doctrine cannot be reconciled with a correct view of our form of government and the distribution of its powers. Whence this power in the judiciary to pass upon the justice or injustice, the expediency or inexpediency of an act of a coordinate branch of the government? It is not given in the constitution. The legislative power is not limited in that instrument to the enactment of just laws, or such as may, in the opinion of judges, be deemed expedient. Nor did the people think it necessary in any way to guard themselves from laws incompatible with the uncertain thing called natural justice; or to hedge themselves about with what judges are pleased to call the principles of eternal justice. This question is simply one of power; the legislature either possesses it unlimited, or not-at all. It cannot depend upon the extent or character of the injustice embodied in any particular law. The courts are no more authorized to annul a law of the legislature, because opposed to the principles of natural justice, than because it may violate the simplest natural right. * * * If the constitution has not limited the powers of the legislature to the enactment of just laws, or such as do not conflict with the principles of natural justice, the courts have no more right to so restrict it than they have to test the validity of a law by the dogmas of the church, or the precepts of revealed religion. If the legislature may be held to have transcended its power in enacting a law opposed to the first principles of right, it may be held to do so at' the pleasure and caprice of judges. The power is no more given in the one case than the other. Such was not the will of the people as expressed in the constitution, but rather that each of the three great departments should be supreme within its sphere. Surely, the power to make the law must necessarily carry with it the right to judge of its expediency and of its justice.*’ (Gibson v. Mason, 5 Nev. 291-314.)</p> <p>VIII. The legislature has power to relieve a person or a corporation from the effect of a statute under the provisions of which a forfeiture of money or valuable property has occurred. (Qonnor v. Bent, 1 Mo. 235; People v. Orennon, 141 N. Y. 239; Dennis v. Maynard, 15 111. 477.)</p> <p>I. The relator does not come with a cause free from fraud, or which justifies the exercise of the courts discretionary power over this writ. (High, Extr. Leg. Rem., 3d ed., sec. 26; Com. v. Henry, 49 Pa. St. 530, 538.)</p> <p>II. “All the decisions agree that the writ will not lie unless the applicant shows a clear, legal right to the relief demanded.” (State v. LaGrave, 22 Nev. 419.)</p> <p>III. It is not clear and undoubted that the relator has any valid claim against Washoe county to justify the finding of the appraisers or which comes within the purview of the act of March 9, 1899. That act only relates to valid subsisting claims.</p> <p>IV. The act of March 9, 1899, does not purport to give a right of action. It does not manifest any intention on the part of the legislature to legalize any invalid or unlawful claim against any county. Even if it were admitted that it had the power so to do, the exercise of a power of that doubtful nature is not to be inferred, nor raised by contention. The presumption is that the law relates to valid and existing claims. As to those it probably was intended to give a new remedy. The act in question does not attempt to do any more. Whether the relator claims that it does more is yet unknown. It is plain from the record that the relator had no cause of action when this act was passed. The judgment, on demurrer in one action and on appeal in another, established that there was no right of recovery in its behalf. The statute of limitation was a prohibition against its allowance or payment by the county, and a complete extinguishment of the cause of action. (37 Cal. 196.) Having no claim against Washoe county at the time of the passage of this act, and the act failing to give a right of action to any o,ne, simply enumerating the conditions necessary to enable one to avail himself of the new remedy, it should be construed, even if held constitutional, as only intended to give a new remedy for those who have valid claims of a certain character against a county. The title of this act, “to regulate the allowance and payment of certain claims against counties,” manifests its whole scope and purpose. Its express and only purpose , is to regulate the allowance and payment of certain claims. There is not a word indicative of a purpose or intent to relieve any person from any default or penalty, not a phrase which manifests a desire to raise the bar of the statute of limitations, or avoid the force and effect of judgments of unquestioned validity, nor a sentence which authorizes the inference that any unlawful, fraudulent or illegal contract was to be legalized. On the contrary, the title, the limitation of time, the designation of the class of claims, and the persons who may avail themselves of it, the method of procedure therein set forth, and the final consummation of the act — an award —demonstrates that this act is wholly remedial. It is confidently submitted that the record shows that the relator is not entitled to the benefits of the act of March 9, 1899, even if it is a valid legislative act.</p> <p>V. Where a person acting in good faith has innocently sold and delivered to a municipal corporation personal property, which it retains without making fair recompense, and the seller is denied relief in the ordinary course of law-because of a failure to comply Avith some statute provision regulating the sale, many considerations of equity and justice plead in his behalf, and if the case at bar were of that character, no fault could be found with the court if it resolved every doubtful question in behalf of the claimant. But such is not this case. ít has been thrice adjudicated that this relator attempted to enter into an illegal and fraudulent contract with the board of commissioners of Washoe county, for the sale and purchase of the property in question. Under these circumstances it comes before the court with unclean hands, presenting a claim, illegal in its inception and thoroughly tainted with the original frauds. As was said in Santa Cruz Rock Paving Co. v. Broderick, 113 Cal. 635, the performance of a' contract, knowingly made in violation of the law, raises no equitable consideration in behalf of the violator, and the county of Washoe, which these respondents represent, owe the relator no more obligation to indemnify it for loss which it has justly sustained by reason of its fraudulent and illegal assault upon its public treasury. “Ex dolo víalo non oritur actio.” (Broom’s Legal Maxims, p. 728.)</p>

E. Cheney, Judge. Bill in equity by Stanton, Thompson & Co. against E. Crane and others. From a judgment for defendants, plaintiffs appeal. The facts sufficiently appear in the opinion. I. Respondents’ motion to dismiss tbis appeal, upon the ground that the notice of motion for a new trial and the statement on the motion were not filed in time, is not well founded.

Application by Samuel Davis against John Simpson and others, Board of County Commissioners of Lincoln county, for a writ of mandamus. I. Bonds draw interest after maturity of last coupons at same rate as coupons represent.

Original proceeding. Action by the State of Nevada, on the relation of William McMillan, against Reinhold Sadler. Held: or immediately about the voting booths. The definition of the word “ immediately ” in the connection in which it is used in the allegation is not very precise; it may be fairly defined as “ close to.” It is not very clear what the phrase “ polling place ” means; we suppose it would be a fair definition to call the space enclosed by…

L. Fitzgerald, Judge. Action by W. H. Sweeney against M. Karsky and others on an undertaking on appeal to stay execution of a judgment rendered in an election contest. From a judgment for plaintiff and an order denying a motion for new trial, defendants appeal. The facts sufficiently appear in the opinion. I. This is an action on an undertaking on appeal.

F. Curler, Judge. Action by Albert F. Price, as Administrator of the Estate of William E. Price, Deceased, against M. E. Ward. Held: alienated, and inherited, and its tribunal alone has power to adjudicate its devolution. (1 Woerner, American Law of Administration, 157, 158, 168; United States v. Crosby, 7 Cranch, 115, 3 L. ed. 287; McCormick v. Sullivant, 10 Wheat. 202, 6 L. ed. 303; Sneed v. Ewing, 5 J. J. Marsh, 460, 22 Nm. Dec. 47; Cal. Code Civ.

E. Mach, Judge, presiding. Suit by Mrs. C. Thomas against Mrs. J. A. Blaisdell for an injunction. There was a decree for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion.

<p>Estates oe Deceased Peesons — Claims—Limitations—Want oe Notice. A claim against an estate of a decedent may be filed after the expiration of the statutory time for the publication of the notice to creditors barring unpresented claims, where, as provided by Stats. 1899, pp. 110, 111, sec. 108, it appears by affidavit of the claimant that he had no notice, as the publication of such notice is not summons.</p>

F. Curler, Judge. Action by Arnaud Inda against W. H. McInnis, as sheriff. From .an order sustaining a demurrer to the complaint and judgment entered thereon, plaintiff appeals. The facts sufficiently appear in the opinion. I. The court has jurisdiction of the cause independent of the amount in controversy where the legality of a tax is involved.

Original proceeding. Application by William Hyams to prove certain exceptions alleged to have been taken by him in the trial of the case of Harris Lewis against Edward Hyams and petitioner. The facts sufficiently appear in the opinion. I. This is a petition under section 3213 of the General Statutes of Nevada for leave to prove certain exceptions which the trial court refused to allow in the settlement of petitioner’s statement on motion for a new trial.

L. Fitzgerald, Judge. Action by Irene M. Robinson against Henry Kind and Eugene Howell. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal. The facts sufficiently appear in the opinion. I. On the____day of July, 1899, and before the transcript on appeal had been filed, counsel for respondent moved the court to dismiss the appeal upon several grounds, viz.: Because the transcript was not filed in time.

F. Talbot, Judge. Action by Frank Paul against Rocco Cragnaz. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion. I. The legal effect of the contract of plaintiff with Howell and others is to be determined by the instrument itself, and not by any name or description which may have been given to it.

On rehearing. I. This court has no jurisdiction to hear the appeal of the defendants, Grayson and Anderson, from the order denying the motion for a new trial, because the defendants as to whom the action was dismissed are adverse parties on the appeal-This action was commenced on the 8th day of- July, 1889, against thirty defendants, including the appellants and William Dunphy, now deceased.

<p>Criminal Law — Commitment—Recitals—Judgment. The recitals of the commitment at the time of passing sentence to the effect that the court informed the petitioner of the finding of the indictment against him for murder, of his arraignment, plea, trial, and the verdict of the jury, are not sufficient to raise a presumption that he had been convicted of murder in the second degree, such recitals being of mere matters of procedure, and no part of the judgment, and which, if not included in the commitment, would not affect the right of the warden to detain the prisoner.</p> <p>Idem — Idem—When Sufficient Judgment. A judgment or commitment, reciting court and cause, and the sentence defining the punishment, and a statement of the offense for which the punishment is inflicted, is sufficient.</p> <p>Idem — Habeas Corpus — Jurisdiction of Court. The jurisdiction of a court or judge to render a particular judgment or sentence by which a person is imprisoned is a proper subject of inquiry on habeas corpus.</p> <p>Idem — Idem—Idem—Process—Record. In a proceeding on habeas corpus where it is shown by the return that the petitioner is detained by virtue of a process issued upon a judgment of a competent court of criminal jurisdiction, such showing is prima facie only of the fact, and may be attacked or impeached by the record of the action, for the purpose of showing such excess or want of jurisdiction of the court or officer rendering or issuing the same as to make its action absolutely void, and that where the record shows such excess of jurisdiction, or such want of jurisdiction, as to render the judgment or process void, the petitioner, under such showing, is entitled to his discharge.</p> <p>Idem — Indictment—Murder—Rape—Constitutional Law — Jurisdiction. "Upon an indictment and trial for murder, and a verdict adjudging defendant guilty of rape, the court has no jurisdiction to sentence and imprison defendant for such crime of rape, since the' constitution (art. I, sec. 8) requires presentment and indictment for the particular offense before conviction is had, and, further, because the defendant is thereby deprived of his liberty without due process of law.</p> <p>Idem — Murder—Rape—Class of Offense — Punishment. Murder is a distinct class of offense under our law. It is a generic offense. Rape is of another class, and is, also, a generic offense. Hence, the act making all murder which shall be committed in the perpetration of arson, rape, etc., murder in the first degree, did not create a new crime, but merely made a distinction with a view of different degrees of punishment, based on different grades of crime.</p> <p>Idem — Idem — Committed in Perpetration of Other Crime — Malice Aforethought. Under our statute making murder committed in the perpetration of rape, arson, etc., murder in the first degree, proof that the murder was committed in the perpetration of such other offense stands in lieu of the proof of malice aforethought.</p>

E. Mad, Judge. Action by Washoe County against Eureka County. From a judgment in favor of defendant, plaintiff appeals. The facts sufficiently appear in the opinion. I. The evidence establishing that the notice was shown to one of the commissioners, personally, and afterwards filed with the clerk of the board of commissioners, is sufficient proof of receipt of such notice by the commissioners of Eureka county.

<p>Justice of the Peace — Summons—Affidavit foe Publication. Comp. Laws 1900, sec. 3125, authorizes the justice to direct service of summons by publication, where it appears by affidavit or by verified complaint that the defendant resides without the state, and that a cause of action exists against him: Held, that an affidavit stating that a complaint had been filed to recover a sum of money, which cause of action was fully set out therein, and making the complaint a part of the affidavit, was sufficient to authorize the justice to order service of summons by publication, though the complaint consisted merely of a copy of an account for goods sold and delivered.</p> <p>Idem — Attachment—Affidavit. Comp. Laws 1900, sec. 3219, declares that the clerk shall issue an attachment on an affidavit showing the nature of plaintiff’s claim, that the same is just, the amount affiant believes plaintiff is entitled to recover, and the existence of any one of the grounds for attachment; and section 3622 makes such section applicable to justices’ courts: Held, that an affidavit reciting that an action had been brought to recover a sum of money for goods sold and delivered at defendant’s request, and that defendant was indebted to plaintiff in such sum over and above all set-offs or counterclaims, and averring the existence of two grounds for attachment, was sufficient to warrant the issuance of an attachment by a justice of the peace.</p> <p>Idem — Summons—Service—Jurisdiction. Comp. Laws 1900, sec. 3539, declares that when a summons is served by publication, or without the state, the time for appearance shall not be less than six weeks from the issuance of the summons, and that, when publication is ordered, personal service shall be equivalent to publication, etc., and that service by publication shall be complete at the expiration of six -weeks from the first publication: Held, that a justice of the peace had no jurisdiction to enter a judgment in a case where the summons was personally served on defendant without the state in lieu of publication until after the expiration of six weeks from date of service.</p> <p>Idem — Appeal—Jurisdiction. An appeal will not lie from a judgment entered by a justice of the peace before he had acquired jurisdiction of the person of the defendant, but it may be annulled on certiorari.</p> <p>Idem — Summons—Service—Residence op Dependant Unknown. Where an affidavit for publication of summons sets forth that the “defendant is a non-resident of this state, but is a resident of the State of California, county unknown,” it is not necessary to deposit in the postoffice a copy of the complaint and summons. The statute requires such deposit only in case the place of residence of the defendant is known.</p>

<p>Action by Vernon Wilson against Henry N. Morse on contracts. Application by defendant for writ of certiorari.</p> <p>The facts sufficiently appear in the opinion.</p>

F. Curler, District Judge. Action by R. Kirman against Clara A. Powning, as administratrix of the estate of C. C. Powning, deceased. From a judgment sustaining the demurrer to the complaint, plaintiff appeals. The facts sufficiently appear in the opinion. I. The administratrix allowed the claim by statutory limitation. At the time she acted upon the claim the law was that if she failed to act within a certain time, that the claim would be construed as allowed.

F. Curler, Judge. Action by John P. Jones against Clara A. Powning, as administratrix of the estate of C. C. Powning, deceased. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. The facts sufficiently appear in the opinion.

<p>Practice oh Appeal — Notice oe Appeal — Service by Mail — When Complete. Under civil practice act, secs. 497, 498, authorizing service of notices and other papers by mail by deposit in the postoffice and extending the time of such service one day for each twenty-five miles distance, service of a notice of appeal is completed on its deposit in the postoffice, since the extension of time provided does not apply to a notice of appeal for which no such time to enable action to be taken thereon is necessary.</p> <p>Idem — Yerdict Not Supported by Evidence. Where, to recover for ore, it was necessary to prove that it was taken from a certain mine, and the only witness on such point, on being recalled, and shown a diagram of an adjacent mine, testified that it was taken, from such adjacent mine, a verdict for the plaintiff was contrary to the evidence, and a judgment based thereon must be reversed.</p>

F, Talbot, Judge, presiding. Action by B. F. Swinney against W. H. Patterson. From a judgment in favor of defendant, and an order denying a motion for a new trial, plaintiff appeals. The facts sufficiently appear in the opinion. I. There was no fraud perpetrated by Rosser and Sherman upon respondent. Where a party can protect himself by ordinary care and prudence, he must do so, and with full means of knowledge.

Original proceeding. Application by Arnold Maher for writ of habeas corpus to the Warden of the State Prison. The facts sufficiently appear in the opinion. I. Was the judgment pronounced by the court in excess of its jurisdiction? Petitioner most earnestly submits that it was.

<p>Criminal Law — Grand Larceny — Excessive Bail —Habeas Corpus. Petitioner was held upon preliminary examination upon a complaint charging him with the larceny of eighteen head of cattle of the value of $30 each, with bail fixed by the justice at $5,000: Held, that the bail was excessive.</p>

<p>Original proceeding. Application by Leo Buncel for a ■ writ of habeas corpus to W. H. Mclnnis, Sheriff of Washoe County.</p> <p>The facts appear in the opinion.</p>

<p>Estates of Deceased Persons — Claims—Effect of Rejection — Practice. ' The rejection of a claim by the administratrix under our statute, for any reason, is not a final determination of the rights of the claimant. The claimant may institute a suit thereon and reserve all questions affecting his rights for review in the appellate court.</p> <p>Idem — Idem — Defective Affidavit — Amendment — Practice — Appeal. Section 3041, Compiled Laws of 1900, provides that a party affected by a decision concerning an estate of a decedent can appeal, such appeal “to be governed in all respects as an appeal from a final decision ” in actions at law. Section 2894 provides that the district court, in its discretion, can permit an amendment of a defective affidavit to a claim: Held, that in an action by a claimant on a rejected claim, that an appeal would not lie from an order refusing permission to amend a defective affidavit, since the claimant may, in making his proofs in the action upon the rejected claim, reserve any question growing out of the abuse of the court of its discretion in such matter.</p>

F. Curler, Judge. George Simas was convicted of burglary, and he appeals. The facts sufficiently appear in the opinion.

Original proceeding. Application for a writ of mandamus by the State; on the relation of W. E. Winnie, to compel A. B. Stoddard, and others, as the Board of County Commissioners of Storey County, to cause their clerk to issue an election notice. Certain other parties intervened by permission of court.

E. Mach, Judge. Arnold Maher was convicted of grand larceny, and appeals. I. The court erred in not giving instructions Nos. 3, 4 and 16 to the jury as they were written and asked by the defendant’s counsel. Each is modified by the court.