State v. Johnny

• Decision Date: 08 October 1906
• Docket Number: 1,695.
• Citation: 87 P. 3,29 Nev. 203
• Parties: STATE v. JOHNNY et al.
• Court: Nevada Supreme Court

87 P. 3

29 Nev. 203

STATE v. JOHNNY et al.

No. 1,695.

Supreme Court of Nevada

October 8, 1906

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 defendant, Ibapah, who is 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, Ibapah, "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 Ibapah, 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 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. 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 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 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 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 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...