Volume 9 — Nevada Reports

The defendant was indicted for the crime of assault with intent to commit murder by shooting Edward Mitchell with a pistol in Elko County on or about December 25, 1872. He was tried and convicted as charged in the indictment, and afterwards sentenced to incarceration in the State prison for the term of one year. He appealed from the judgment and an order of the court below denying his motion for a new trial. The transcript on appeal did not contain any of the testimony.

This was an action of ejectment to recover possession of a tract of about sixty acres of land, known as Davis’s Bancb, in Meadow Valley, Lincoln County. The plaintiff relied upon prior possession. When be bad introduced bis testimony — the substance of which is stated in the opinion— defendant moved for a nonsuit, on the ground that he bad failed to show such an occupation or possession as would entitle him to a recovery. The motion was denied.

Second Judicial District, Washoe County. This was an action against Peter Dalton as principal and John S. Bowker and A. A. Longley as sureties, on an injunction undertaking to recover the sum of fifteen hundred and fifty dollars damages. There was a verdict and judgment for plaintiff in the sum of seven hundred and fifty dollars.

This was an. action to recover fourteen thousand dollars for alleged unlawful conversion of twenty shares of mining stock. The cause was tried .by the court below without a jury, and judgment rendered for defendant. A motion for new trial having been denied, the plaintiff appealed from the judgment.

This was an action against S. T. Swift, sheriff of Ormsby County, and C. M. Taylor, to enjoin proceedings on execution under a judgment recovered before a justice of the peace in favor of Taylor and against Mary J. Connery, then Mary J. McCormas.

TTa-rtbar Corpus before tbe Supreme Court. Tbe writ was issued on tbe petition of A. C. Ellis, and directed to P. C. Hyman, warden of the State prison.

This was a controversy between the parties as to a preferred right to purchase of the State a tract of eighty acres of land in township 15 north, range 19 east, in Ormsby County. In accordance with the statute of March 4, 1871, providing for such cases, the contest was certified from the register to the district court. A trial was had, and the result was a judgment for defendant.

Defendant was indicted, with Yincent Moore and Robert McCausland, of the crime of grand larceny, alleged to have been committed, in Lincoln County, Nevada, on or about May 15, 1872, by stealing a cow and heifers, the property of John Pulcifer, and a heifer, the property of the Hebron Stock Association.

Defendant was indicted in August, 1873, for the murder of a person whose real name was unknown to the grand jury, alleged to have been committed on or about June 17, 1873, by shooting him with a pistol at Belmont. The main circumstances of the killing, as shown by the testimony, are stated in the opinion.

This was an action against Dalton as principal and A. A. Longley and John S. Bowker as sureties on the same injunction undertaking, which was the subject matter of complaint in the case of Libby v. Dalton et ais., ante 23. • There was a verdict and judgment for plaintiff for damages in the sum of $596 25 and costs.

• This action was before the court on a previous appeal at the July term, 1872; and will be found reported in 8 Nev. 91. The cause was upon thit occasion remanded for a new trial, which took place in the court below in March, 1873, and resulted in a verdict for defendant. Plaintiff moved for a new trial mainly upon the ground of insufficiency of the evidence to sustain the verdict and judgment; and such motion was granted. This appeal is from the order.

Habeas Corpus before the Supreme Court. The petitioner set forth that he was unlawfully restrained of his liberty by Sheriff Swift at the county jail in Carson City, Ormsby County; that he had been arrested under the alleged provisions of the act of the Territorial legislature entitled “An act for the better observance of the Lord’s day,” approved November 21, 1861, upon a charge, of dealing the game of faro for gain upon the first day of the week; that he had procured a…

It appears that the aggregate amount of taxes assessed against the Central Pacific Railroad Company in Washoe County for the years 1869, 1870 and 1871 was over $74,000, of which $18,042 75 was for the year 1869. On February 5, 1870, suit was commenced to recover the taxes for that year —being this present action.

A difficulty occurred about two o’clock on the morning of July 6, 1873, in the chop-house of John H. Lynch, in the town of Pioche, Lincoln County. Defendant J ames Harrington, Lynch, Frank Schoonmaker, one O’Neil, and one Sullivan were present. Sullivan seized hold of a dog belonging to Schoonmaker and the result was a quarrel in' which all the parties became more or less involved.

This was au action against John G. Birchim and P. W. Murray to recover the sum of one thousand dollars, the penalty of the recognizance set forth in the opinion. The defendants filed a general demurrer, which was overruled. There was a judgment as prayed for in the complaint. Defendants appealed. I. The recognizance sued on is fatally defective, for the reason that it does not state the nature of the offense upon which Pryor was admitted to bail.

<p>Gist Concert Act Unconstitutional. The act of March 3, 1861, to aid the Nevada Benevolent Association in providing means to erect an insane asylum (Stats. 1871,110,) in so far as it authorized a lottery or allowed the sale of lottery tickets in this State, was unconstitutional.</p> <p>Act Authorizing Lottery — Construction of Statutes Exclusively a Judicial Power. Where a statute provided for gift concerts and distribution of prizes among ticket holders by raffle, and specially provided that “ nothing in this act contained shall be construed as authorizing a lottery in this State or as allowing the sale of lottery tickets contrary to the provisions of the constitution” (Stats. 1871, 110): B.eld, that the construction of such act was for the courts alone and that the attempted exercise of this power by the legislature was an unconstitutional assumption of the functions of the judiciary.</p> <p>Lotteries Public Nuisances. The English statute of 10 and 11 W. III. c. 17, declaring lotteries to be public nuisances, constitutes a part of the common law of the United States, and was so understood by the framers of our constitution when they provided that “ no lottery shall be authorized by this State.”</p> <p>Gift Concert Tickets Lottery Tickets. Where a person was convicted of selling lottery tickets contrary to the act of March 7, 1873, prohibiting lotteries (Stats. 1873,186); and the fact appeared to be that he had sold tickets to a gift concert under the act of March 3,1871, in aid of the Nevada Benevolent Association (Stats. 1871, 110): Held, on habeas corpus, that the act of 1871, being unconstitutional as sanctioning a lottery, afforded no protection.</p>

^ The defendant was indicted on July'21, 1873, of the murder of Robert Ash, alleged to have been committed in Lincoln County on July 13, 1873. He was tried in August following; and, having been convicted of murder in the first degree, and his motion for a new trial having been overruled, was sentenced to be hanged on October 31, 1873. He appealed from the judgment and order.

Defendant was convicted on November 20, 1873, of the crime of murder in the first degree. The jury recommended bim to the mercy of the court. His motion for a new trial having been overruled, be was sentenced to be banged on January 9, 1874. He then took this appeal. The circumstances of the killing are set forth in the opinion of the Court, as are also several of the instructions given and the obj ections taken by counsel at the trial of the' cause in the court below.

The facts are stated in the opinion. The notes sued on were dated in June, 1869 ; suit was commenced in December, 1870 ; and the judgment appealed from entered on June 7, 1872. I. The case should have been transferred to the United States circuit court. 14 U. S. Stats. 306, 558; FisJce v. Union Pacific R. B. Co., 6 Blatchford, 377; Dennistown v. Draper, 5Blatehford, 336; Meadoio Valley Mining Co. v. Dodds, 7Nev. 113; Stewart v. Mordecai, 10 Ga. 1. II.

This was an action against the sheriff of Lyon County for alleged conversion of a quantify of cord-wood and a number of oxen and other animals, of the aggregate value of eighteen Hundred dollars. The property had been seized by the defendant in his capacity of sheriff, on a writ of attachment, issued in a suit of Peter Klein v. Jacob Gugger, then pending in the Third District Court.

Tbis was an action to recover tbe value of two hundred and fifty shares of tbe capital stock of tbe Lady Bryan Mining Company, claimed to have been sold to plaintiff by defendant, but left in defendant’s possession and afterwards converted by'him.

This was an action brought by H. G. Blasdel and A. J. Pope to quiet their title to certain lodes or ledges of gold and silver bearing quartz, known as the Dolores, Potosi, Grant, ¿Etna, and Empire lodes, respectively, in the Wilson Mining District, Esmeralda County.

Tbe defendant, having been convicted of tbe crime of assault with intent to commit bodily injury, was sentenced to confinement at bard labor in tbe State prison for tbe term of two years. He appealed from tbe judgment. I. An indictment under a statute must follow tbe statute strictly, and recite it substantially.

Tbe defendant was charged by tbe indictment with tbe “ crime of arson in tbe second degree, committed as follows, to wit: That tbe said Alexander Cohn, at tbe County of White Pine, State aforesaid, in tbe day time on tbe twenty-seventh day of June, A. D. 1873, that certain building, to wit: a building situate on the east side of Main street in the town of Hamilton, county and State aforesaid, known and called the “Jackson House,” then and there the property of one Andrew…

This was an action in equity brought for the purpose of setting aside a judgment, rendered in the same court in favor of defendants in the case of Dalton v. Libby and Lamburth; also to set aside two judgments in the same court, one in favor of Libby against Dalton, and one ih favor of Lamburth against Dalton; and for an injunction to enjoin the enforcement of the judgments against Dalton.

This was an action for an accounting of the rents and. profits of certain real estate in the town of Reno, Washoe County, held by defendant under a deed absolute upon its face but claimed to be a mortgage, and for a decree that plaintiff might redeem the same.

<p>Dde Bills Signed by Superintendent oe Mixing Company. In a siiit against the superintendent of a mining company on due bills signed by him, but adding after his signature “ Supt. C. S. M. Co.” : Held, that he might show that the consideration for the bills passed to the company, that the credit was given to it, that he had authority to bind it, and acted solely as such agent to the knowledge of the payers of thd bills ; and that the rejection of such preferred evidence was error.</p>

This was an original application to the Supreme Court for a peremptory writ of mandamus to compel the defendant to pay four warrants for the aggregate sum of four hundred dollars and upwards, drawn on the “ general” and “ redemption ” funds of Esmeralda County in 1865, 1866, and 1867.

Defendant was indicted for having on July 1, 1873, in Verdi Township, Washoe County, unlawfully, wilfully and feloniously hilled a steer then and there running at large, with intent to defraud Christian Haller, the owner thereof, contrary to the form of the statute, etc. A demurrer was interposed to the indictment on the grounds that it did not substantially conform to the requirements of sections 234 and 235 of the Criminal Practice Act, and that the facts stated did .not…

This was an action to recover $6,275 50 for hay sold to defendant, boarding furnished defendant’s hired man, and horse feed, with interest and costs. Defendant set up a counter claim, exceeding the amount demanded by plaintiff. There was a verdict and judgment in favor of plaintiff for $5,747 13, with interest and costs.

This was an action against John Kane, sheriff of Lincoln County, and the sureties on Ms official bond, to recover two thousand dollars as the value of fifty tons of hay alleged to have been converted by the sheriff. The case was tried before a jury, which returned a verdict in favor of plaintiff for fifteen hundred dollars, and judgment was rendered accordingly. Defendants’ motion for a new trial having been overruled, they appealed from the judgment and order.

The property in controversy in this case consisted of four hundred and twenty feet of mining ground on the Comstock Ledge, next south of the Chollar claim, in Storey County. The facts are.fully stated in the opinion. There was a judgment for defendant. Plaintiff moved for a new trial, which was refused, and it then appealed from the judgment and order.

This was an action to recover the possession of a certain mining claim, known as the “Hidden Jewel,” in Eureka Mining District, Lander County. There was a verdict and judgment for plaintiff. Defendant moved for a new trial and gave notice of the motion as stated in the opinion. The motion being overruled, defendant appealed from the order and judgment.

Judicial District, Lincoln County. This was an action commenced by Frank Wheeler and George W. Arnold, composing tbe firm of Frank Wbeeler & Co., against tbe defendant, for tbe purpose of foreclosing a mecbanic’s lien for hardware, sold and delivered, amounting to seventeen hundred dollars and upwards. A number of other lien-bolders intervened and set up tlieir claims.

Tbis was an action by W. P. Warren and Olive Warren against Jobn Quill and Timotby Conley, to restrain tbe defendants from diverting tbe waters of a certain stream taking its rise in tbe foot bills and flowing over tbe lands of plaintiffs in Ormsby County. There were findings and decree in favor of plaintiffs. Defendants moved for a new trial, wbicb was denied; and they tben appealed from tbe judgment and order.

The defendant was indicted for the murder of Erank Eeen, committed by shooting with a Derringer pistol at Douglas County on May 6, 1874. He was convicted of murder in the first degree on May 27. On May 30 judgment was entered and defendant sentenced to be hanged on July 31, 1874. He appealed from the judgment. I. The court below exceeded its jurisdiction in fixing a longer period than sixty days for execution of judgment. Oomp.

This was an action to recover damages for tbe destruction of certain cord-wood in the wood-yard of tbe Mexican Mill at Empire City. Tbe amount claimed was $5281, tbe value of wood burned belonging to plaintiff and bis assignors. There was a verdict and judgment in favor of plaintiff for tbe amount claimed. Defendant moved for a new trial, wbicb was denied; and be then appealed from tbe judgment and order.

<p>Irregularity in Appointment op Guardian — "Want of Notice to Friends. The appointment of a stranger as guardian of the person and estate of an infant within three days after petition and without notice to the infant’s relatives or the persons having its custody, is gravely irregular.</p> <p>Refusal to Appoint Guardian — Presumption in Absence of Evidence. Where a transcript on appeal from an order refusing to appoint a person guardian on the ground of his unfitness failed to contain all the evidence : Held, that in the absence of tbe evidence, undisclosed testimony influencing the decision would be presumed.</p>

The defendant was indicted for the murder of Joseph Thomas, alleged to have been committed by shooting with a pistol in Lincoln County, on November 3, 1873. He was convicted of murder in the second degree, and sentenced to confinement at hard labor in the State, prison for the term of fifteen years. He appealed from the judgment and an order overruling a motion for new trial.

This was an action under tbe statute on claim and delivery of personal property., sucb as is usually known as an action of replevin. Tbe plaintiff demanded tbe restitution of certain mining stock described in tbe opinion or its value • and damages in tbe sum of seven hundred and seventy dollars in case a return could not be had. It appeared that the stock had been taken to defendant, who was a stockbroker in Virginia City, by a person giving his name as Bernarge.

This was an action to recover one thousand dollars damages for alleged interference with plaintiff’s right to use the water of a small stream flowing out of “Rose Canon ” in Ormsby County.

The defendant was convicted of grand larceny and sentenced to imprisonment at hard labor in the State prison for the term of seven years. He appealed from the judgment and an order overruling his motion for new trial. The indictment under which the conviction took place was found at the December term, 1873, of the district court, and charged the larceny on April 13th, 1873, in Lincoln County, of seven horses, the property of E. H. Pearson.

. This was an application to tbe Supreme Court for a writ of mandamus to remove tbe respondent from tbe office of superintendent of tbe Opbir Silver Mining Company. Tbe petition of tbe relator set forth fully tbe facts upon wbicb be relied. An alternative writ was issued, requiring tbe respondent to sbow cause wby be should not be removed and surrender up tbe office of superintendent.

<p>Admission by Pleading — Setting Up of Counter Claim. Where, in. an action for goods sold and delivered, the answer admitted the receipt of the goods; did not deny their value and that no part of it had been paid; but denied all indebtedness and set up a counter claim arising out of the same transaction : Held, an admission of the plaintiff’s claim as set forth in the complaint, subject to the counter claim.</p> <p>Admission of Yalue of Goods Sold and Delivered — Drayage Items. Where, in an action for goods sold and delivered, there was no denial of their receipt and value ; and on the trial an open account of them, including charges for drayage, was offered and received in evidence without objection: Held, that defendant could not afterwards object to the items for drayage.</p> <p>Interest on Balance of Account — Balance Ascertained by Pleadino. Where an answer admitted an account for goods sold and delivered: Held, that such answer amounted to an ascertainment of the balance of account and that under the statute (Comp. Laws, Sec. 32) interest was due from that time upon such balance.</p>

The complaint also set forth that defendant had extracted from the mine valuable ores, and threatened to continue the extraction and removal of ores, and prayed for damages, an injuncton and other relief.

Judicial District, Eureka County. This was an action to recover two thousand dollars damages for alleged trespass in cutting down and removing trees from a trant of six hundred and forty acres of land in Eureka County, claimed to be owned by and in the possession of plaintiff and to have been owned and in the possession of its predecessors for three years previously.

Certiorari from the Supreme Court to the District Court of the Second Judicial District, Douglas County.

<p>Mandamos Improper where Ejectment Affords Full Remedy. In a caso where ejectment affords a plain, speedy and adequate remedy, as where county commissioners desire to eject a county officer from a room in the court house, mandamus can not be maintained.</p>

Tbe plaintiff applied to tbe court below for a writ of certiorari, requiring D. H. Hall, E. E. Phillips, and L. W. Cromer, composing tbe board of county commissioners of Eureka County, to certify up tbe record of tbeir proceedings in relation to tbe town of Eureka, iu said county, and praying that such proceedings might be annulled and declared invalid.

Certiorari before the Supreme Court. The defendant was justice of the peace of G-enoa Township in Douglas County. It appeared that two suits were commenced in his court ou June 11, 1874, against J. S. Roy and J. Copies, one by G. W. Gallanan for $156, and the other by C. A. Decatur for $230 75.

This was an action to recover twenty-three hundred and seventy head of sheep, of the value of seventy-one hundred and ten dollars, at the rate of three dollars per head.

This was an original proceeding in the Supreme Court. The petitioner prayed for a writ of certiorari against the Hon. C. N. Harris, judge of the District Court of the Second Judicial District in and for the County of Ormsby.

<p>Eoad Tax of 1873 Unconstitutional. The highway act of 1873. in so far as it provides for a road tax upon individuals, (Oomp. Laws, 3927) is obnoxious to the constitutional provision relating to poll taxes, (Const. Art. II. Sec. 7) and is void.</p> <p>Eoad Service a Tax. The levy of service upon an individual for road purposes is an emanation from the taxing power.</p> <p>Eoad Tax of 1873 a Poll-Tax. The road tax of four dollars annually, or two days’ labor, imposed upon individuals by the highway act of 1873, (Comp. Laws, 3927,) whether regarded as a levy in money or service, is a capitation or poll-tax.</p> <p>Only'.One Constitutional Poll-Tax. As the constitution prescribes specifically what poll-tax may be levied (Art. II., Sec. 7), such indication excludes from legislative power any other.</p>

Defendant was indicted for tbe murder of John K. McCallum by shooting bim witb a pistol on May 12,1874, at Carson City in Ormsby County. He was tried in August and convicted of murder in tbe first degree, and sentenced to be banged. He appealed from tbe judgment.

Defendant was convicted on May 27, 1874, of murder in the first degree for the killing of Frank Bean and sentenced ■ to be hanged. At^the July term of this Court he appealed from the judgment alone, which was affirmed. See State v. Summers, [No. 1], ante, 269. After the disposition of that appeal, he took this appeal from the order overruling his motion for a new trial. The counsel for the State thereupon moved to dismiss this appeal on the ground that it was too late.