State v. Thompson

• Decision Date: 01 May 1909
• Docket Number: 1,782.
• Citation: 101 P. 557,31 Nev. 209
• Parties: STATE v. THOMPSON et al.
• Court: Nevada Supreme Court

101 P. 557

31 Nev. 209

STATE v. THOMPSON et al.

No. 1,782.

Supreme Court of Nevada

May 1, 1909

Appeal from District Court, Esmeralda County.

James Thompson and another were convicted of an attempt to commit grand larceny, and they appeal. Affirmed.

Norcross C.J., dissenting.

Frank J. Hangs, for appellants.

R. C Stoddard, Atty. Gen., and L. B. Fowler, Deputy Atty. Gen for the State.

SWEENEY J.

Defendants were jointly indicted, tried, and convicted for the crime of attempt to commit grand larceny. From the judgments and orders denying their motion for new trial, each has appealed.

The indictment is in two counts. Conviction was had upon the second count, which charges that the defendants:

"Did willfully, unlawfully, and feloniously attempt to sever from the realty of the Red King mining claim, *** the property of the Florence Goldfield Mining Company, a corporation, the Goldfield Syndicate Mining Company, a corporation, Lewis H. Rogers et al., *** gold-bearing ore, then and there being of the value of $100, and to convert the same into personal property, with the intent to feloniously steal, take, and carry away the same, and, in pursuance of said attempt, they, and each of them, did then and there enter the underground workers on said Red King mining claim, *** but said defendants, and each of them, failed in the perpetration of the said grand larceny."

Counsel for appellant relies mainly upon the contention that the evidence does not support the verdict. There is little, if any, substantial conflict in the testimony. The defense did not attempt to deny or dispute any of the evidence offered by the state, and the state offered no evidence in rebuttal of the testimony offered by the defendants.

Lewis H. Rogers, a witness for the state, testified in reference to the underground workings of the Red King mining claim, the property of the Florence Goldfield Mining Company, and upon which the Goldfield Syndicate Mining Company, the witness Rogers, and others had been operating a lease. He testified that, at the time of the alleged offense, on the 300-foot level of said claim and lease, in a winze about 35 feet in depth, there was a streak of ore about 6 inches wide that would run about $2,000 to the ton; that in a stope about 60 feet long upon the 400-foot level, averaging from 3 to 5 feet wide of ore that would run $110 to the ton, there was a streak of very rich ore about 2 inches wide, and in places 5 or 6 inches wide, that would run about $10 a pound; that the ore in these high-grade streaks was very hard, contained some bismuth, was quite black, some of it as black as coal.

Mr. C. O. Lovell testified that he was a deputy sheriff; that on the night of the alleged offense he was on the 300-foot level of the Rogers Syndicate lease, in a drift beyond the shaft, and that one Thomas Ramsey was with him; that they were behind a bulkhead, at the end of the drift near the shaft, placed there for the purpose of preventing the débris falling into the shaft; that about 9 o'clock in the evening, or shortly before, he saw the defendants coming down the shaft from the Rosebud shaft; that he saw them first when they came to a short crosscut that was probably 30 feet from the shaft; that they held the candle up and peered down this crosscut, then they came to the station, and Mr. Thompson climbed over the bulkhead where the witness was, and Mr. McCabe remained at the station of the shaft; that, when the defendant Thompson climbed over the bulkhead, witness Lovell told him to throw up his hands, which he did, after which, a .38 double-action Colt gun was taken from him; that, immediately upon the witness telling Thompson to throw up his hands, the defendant McCabe went back in the direction from whence he came; that the defendant Thompson was taken to the station of the shaft, where a prospector's pick and two large canvas ore sacks were taken from him; that he was then taken to the surface, and his candlestick and candle taken from him; that he did not at the time nor subsequently make any statement to the witness concerning his presence in the mine; that he was one of a party that took the defendant Thompson to jail about 10 o'clock that night.

E. W. Gardner, a witness for the state, testified that he was a deputy constable; that he saw the defendant Thompson when he was brought up to the Rogers Syndicate shaft by the witness C. O. Lovell; that thereafter he went to the Rosebud shaft, and, about 20 minutes or a half hour later than the defendant Thompson was brought to the surface, he saw the defendant McCabe come out of the shaft of the Rosebud lease on the O. K. fraction claim, this shaft being about 300 feet from the Rogers Syndicate shaft. Asked to described the circumstances of the defendant McCabe coming from the shaft, his arrest, etc., the witness stated: "Well, he approached the top, got within a few feet or a couple of feet of the top-why, he halted there and called for 'Charley' several times. He got no answer, and staid there in the shaft. He raised up the trapdoor and jumped out, and we placed him under arrest; *** told him to throw up his hands. He threw them up, and Officer Colwell searched him, and then he asked him who 'Charley' was, and he said, 'Well, he intended that name, in speaking, he intended that name for him.' He says, 'I intended to call you Charley.' Colwell said, 'How did you know my name?' He said, 'I guessed it.' He didn't make any statement concerning his presence there in this exit from the shaft at that time, nor subsequently, to me." The witness further testified he was present when defendant McCabe was searched, that all he saw taken from him was a candlestick containing half or three-quarters of a candle.

The witness Burns M. Colwell testified, upon the part of the state, that he was a deputy sheriff; that he saw the defendant Thompson when he came out of the Rogers Syndicate shaft with Officer Lovell; that he saw defendant McCabe when he came out of the Rosebud shaft; that he searched him, and found upon him a candlestick containing part of a candle; that neither then, nor at any subsequent time, did the defendant McCabe make any statement to him concerning his presence there; that before he came out of the shaft, he heard him say, "Open the door, Charley," to which no reply was made. "He opened the door and looked out. I could see his head come out; then he shut the door again and went down, went out of sight. It was probably 10 minutes before he opened it again and walked out. I asked him who 'Charley' was, something to that effect, and he said he was speaking to us to open the door. I did not know him prior to that time."

Witness J. F. Lone, upon the part of the state, testified to the effect that permission had not been granted defendants to enter upon the Rogers Syndicate lease.

Thomas G. Lockhart, upon the part of the state, testified that the Red King mining claim was the property of the Florence Goldfield Mining Company; that upon the 400-foot level of the Little Florence lease, on the Red King claim, there was a very small streak of very high grade ore, one place about the width of a finger; that the tunnel connecting the 300-foot level of the Rogers Syndicate lease and the O. K. fraction was upon merger property; that on the underground workings of the Red King mining claim one could not enter any other outside property except the tunnel that leads into the O. K. fraction.

Upon the part of the defendants, the following testimony was offered:

Defendant J. R. Thompson, in his own behalf, testified substantially as follows: That on the evening of December 9, 1907, he went underground through the O. K. fraction, or Rosebud shaft; that he went down for the purpose of looking over the property with a view of leasing; that one F. O. Altinger was connected with him in desiring to obtain a lease; that he was not familiar with the underground workings of the Rogers Syndicate lease; that he did not know that he was ever in the workings of the said lease; that no one authorized him to go down the shaft of the O. K. fraction, nor did he ask any one permission so to do; that he did not then know who owned the ground he was on that night; that he went down the shaft about 6 o'clock in the evening; that, if the ground proved to be good for leasing purposes, he intended to find out afterwards to whom it belonged; that he did not think any one had the lease on the Rosebud shaft; that he knew the shaft by the name being over it; that he made some inquiries around town as to who owned the Rosebud shaft, but did not find any one who knew; that from the time he went down the shaft until he was arrested he was investigating every drift, every crosscut, and every level there was in the shaft; that he only had one candle, which he burned all the time; that the only man he thinks he asked as to who owned the ground, or whether it was idle, was a man named Donnelly, who was well acquainted around there; that the last he heard of Donnelly he was in Rawhide.

W. M McCabe, one of the defendants, testified in effect as follows: That he met defendant Thompson downtown on the evening of December 9th, and that Thompson asked him to go out and look at a piece of property; that he, Thompson, said he wanted to go and look for a lease if he could find one; that at Thompson's request and for that purpose he went down the Rosebud shaft; that he ran when Thompson was arrested because he was scared; that he was a miner by occupation; that he had been in the Goldfield district about a year and a half prior to that time; that he had been employed in the Gold Bar Extension, the Mohawk Florence, and the Jumbo Ledge mines; that the Mohawk Florence was just adjoining or very near the Rosebud shaft; that...