State v. Mandich

• Decision Date: 30 September 1898
• Docket Number: 1,541.
• Parties: STATE v. MANDICH.
• Court: Nevada Supreme Court

54 P. 516

24 Nev. 336

STATE v. MANDICH.

No. 1,541.

Supreme Court of Nevada

September 30, 1898

Appeal from district court, Lincoln county; G. F. Talbot, Judge.

Daniel Mandich was convicted of grand larceny, and he appeals. Affirmed.

Sawyer & Sawyer and T. J. Osborne, for appellant.

F. R McNamee, Dist. Atty., and J. R. Judge, Atty. Gen., for the State.

BONNIFIELD J.

It was charged by the indictment that on or about the 25th day of February, 1898, in Lincoln county, state of Nevada, the defendant, Daniel Mandich, did unlawfully and feloniously steal, take, and carry away 31 pounds of gold and silver cyanide product, of the value of $1,200, of the property of the April Fool Gold Mining & Milling Company, a corporation. The defendant was found guilty, and a judgment of imprisonment for the term of two years in the state prison was entered against him. This appeal is taken from the judgment and order of the court denying his motion for new trial. Several grounds of the appeal are presented and urged in argument by defendant's counsel, which are to the effect: First, that the evidence is insufficient to justify the verdict; second, that the verdict is against law; third, that the court erred in refusing to give certain instructions presented by the defendant.

The evidence is to the effect and shows that the April Fool Gold Mining & Milling Company, a corporation, was engaged at Delamar, in Lincoln county, Nev., in the reduction of gold and silver ores from its mine by the cyanide process from July, 1897, to February, 1898, and afterwards; that during the time from July to September, 1897, the company missed from its reduction works, at different times, small quantities of the cyanide product; that in said September it missed 10 pounds of said product, and smaller quantities from time to time thereafter, and that said product missed as aforesaid was stolen; that in the latter part of February 1898, the defendant was found in Salt Lake City, several hundred miles distant from Delamar, with 31 pounds of cyanide product in his possession, of the value of $1, 200, and of the property of said company, which he was trying and offering to sell. The defendant, in his testimony, gave the following account of how he came into the possession of the property, to wit: "On the 9th day of last February, a man came to my store (in Delamar) about nine o'clock in the evening, and asked if I wanted to buy any bullion. He said his name was Green, and that he had a mine leased at El Dorado canyon, and that he brought the bullion from there. I told him I would look at it, and he went away, and soon came back with a flour sack, in which was what he called the bullion. I looked at it, and told him it was not bullion. He said it was rich, and I could get it assayed. I tried to get samples of it assayed in Delamar the following day, but could not, and then I told Green I would send samples to Sait Lake to McVicker. Green said that would be better, as then we could get correct returns. I sent samples to McVicker, at Salt Lake, for assay, and got returns. Green had been in several times before they got back. He was a man of light complexion, and was dressed then in a red sweater and something of a broad hat,--a soft hat,--during the time I saw him. He came in the day I got the returns, and I offered him five hundred dollars for the stuff. I did not know it was cyanide product until I went to Salt Lake, and was having it assayed. Green wanted eight hundred dollars for the material. We finally agreed on six hundred and fifty dollars, and I told him if I got more than $700, when I took it to Salt Lake, I would make it right with him. "When confronted by Frank Wilson, the president of said company, at Salt Lake City, the defendant gave substantially the same account as above of his alleged transaction with Green, except that in his conversation with Wilson he also stated that he had $250 of his own money, and borrowed the balance he paid Green. In the same conversation he stated that he had $350 of his own and then borrowed the balance. It appears from the evidence that wirness James Jacks met the defendant on the 27th or 28th day of February at Salt Lake and he stated to witness that he was going to Klondike; that on the 4th of 5th of March witness met defendant, and he stated to witness that he was going to return to Delamar. This last statement was after the company claimed the property. It likewise appears that the defendant stated to W. J. Dooley, the secretary of said company, that said Green had been in his (defendant's) place of business at Delamar off and on from the 9th to the 25th day of February, and that the could recognize Green if he saw him; that the officers of the company had Green arrested, and took the defendant to the secretary's office, into the presence of Green, and asked him if Green...