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itate on any account to give him the benefit what purpose? A. Mr. Goodfriend wanted of that testimony? A. No, sir." Upon cross- me to get the team, which I understood they examination the witness testified as follows: were trying to sell, and Mr. Lynch wanted "Q. Didn't you tell me, Mr. Cooper, that you me to come, as Mr. Dwyer was in this trouwanted to be left out of it: that it was hurt. ble, because he thought I was pretty well acing your business? A. No, sir; I just said quainted here, and there was some pretty that the killing had hurt business all around. bad talk being made.

made. *


Q. Where Q. Didn't you say that it hurt your business have you been, out of town, since that time? especially? A. It hurt my business the same A. In Battle Mountain, Bullion, Tonabo, and as anybody else. Q. Didn't you say it would here again, Q. During all of the several hurt your business if you testified in favor times that you have been in this county, and of the defendant? A. Yes, sir. Q. By rea- the several places you have been, have you son of it being supposed that you were for conversed with many citizens of this county the defendant? A. No, sir; I said if I relative to the defendant? A. Yes, sir; I should sympathize with him in any way it have conversed with quite a number. Q. would hurt my business."

Approximately how many would you say? S. E. McIntyre, called on behalf of the A. I don't know. I have talked more or less state, denied certain allegations in defend- every day, and with a great many different ant's affidavit that he (McIntyre) had made people. Q. Have you talked with a hundred any violent expressions concerning defendant, people? A. Yes, sir. Q. In consideration of or that he had at any time solicited or en- your talking with that number of people, couraged the doing of any violence to defend- what would you consider the feeling here is ant, or that any one invited or solicited him toward the defendant?

A. Against to engage in any unlawful act towards the him. Q. In what degree, mildly or strong? defendant, or that he knew of any mobs for A. Strongly against him. Q. Angry and exsuch purpose. Upon cross-examination the cited ? A. Well, they speak very strongly witness testified: "Q. The people thought against him, not in his favor by any means. he ought to be punished for committing the There is no sympathy for him." Cross-examcrime. That feeling was general? A. I ination: “Q. How long have you known the should judge so. Q. It extends to every one .

defendant? A. I think about a year and a you know around here? A. Yes, sir; I think half. Q. You are friendly disposed towards most every one is of that opinion. Q. En- him? 1. Yes; by meeting him and speaking tertains a feeling against the defendant? A. to him." I don't know as it is against him. Q. I be- George Watt testified concerning his inlieve you said you thought he was guilty? forning Deputy Sheriff Oliver of an alleged A. A man is not guilty until he is proven so. attack on the jail as follows: “A. I believe Q. It is a general opinion that he is guilty? it was a week ago yesterday. Henry Dyer A. Yes, sir. Q. All it needs is the stamp of telephoned up to me that he would like to see approval of the court and jury? A. Yes, sir; me, and I came down. I met him in the door to be legally guilty. Q. That is the general of the saloon. He called me back and said feeling, is it not, here? A. As far as I know. he wanted to talk with me. He was pretty Q. Don't you think that general feeling is much under the influence of liquor at the going to influence any juror? A. No, sir: I time. He said:

Ile said: 'I have been thinking this don't know as it would. Q. Do you think matter over, and partly made up my mind to that you could get two people out of Austin get that fellow if I can get some of the boys that would be free from that feeling? A. I to go with me; but I don't want to do anythink you could out of the county. Q. What thing where I would have to hurt Al Oliver.' part of the county? A. From different parts. Ile asked me to ask Oliver how he felt about Q. You do not know where there are enough it. He said: 'I am a cripple for life, and he

a , people resiling to obtain a jury? A. No, killed one of my best friends, and I am pretty sir." .

much enraged over it. I went to Al, and he The state also introduced a number of af- said to tell the boys they had better not fidavits derying portions of the defendant's come.

Mr. Dyer was the only peraffidavits wherein he charged the affiants as son who spoke to me about it, and he menadvocating violent measures against him, but tioned no associates. IIe said he thought he which did not refer to the feeling generally could get some of the boys to go with him. in the county.

I spoke to IIenry the next morning, and he Upon the last renewal of the motion for a said he would say no more about it. Q. change of venue the defendant offered the

From your observation, knowledge, and interfollowing testimony:

course with the people, what would you conScott Hickey testified as follows: "Q. sider the state of public feeling against this What was your Occupation formerly? A. defendant throughout the county? A. t An officer. Q. In Nye county? A. Yes, sir. the time it happened it was pretty strong, Q. IIow did you first happen to come to this but I believe right now I could try Mr. Dwyer. county? With reference to the case now on Q. You think you could try him, and give trial? A. At the request of Mr. Lynch and a him what you believe he is entitled to ? A. man named Goodfriend, wlio loaned a team Yes, sir; and not any more, either. Q. Don't to these boys that came in here. Q. For you think it would take a good deal of evk


dence to make you turn him loose? A. I would surely turn him loose if he was innocent. Q. You say that you believe you are in a condition to try him. You believe you know the state of facts, and from that state of facts he deserves punishment? A. From iny condition at present, it is hard to tell what I would do." Recross-examination by Mr. Maestretti: "Q. Isn't it what you mean to say that, if you were taken as a juror, if the state did not show you something in the way of evidence, you would not convict him? A. No, sir. Q. You believe Q. You believe now that, al

, though you may have been somewhat excited at first, now you would be absolutely fair? A. Yes, sir. Q. Don't you believe that that is the statement of most of the people? A. It ought to be.”

H. W. Dyer testified as follows: "A. What Mr. Watt said was true, except that I said I had made up my mind to get this fellow. I do not want to be understood as saying that I had made up my mind to get this defendant; but what Mr. Watt said was true in all other respects. * * Q. Was there anything further back of your declaration to Mr. Watt? Had you consulted anybody or taken any steps toward forming a mob? A. I just asked Mr. Watt's advice."

H. J. Plummer was called by the defense and testified that he had resided in Austin since the 21st of May preceding; that he had heard E. W. Hunt, one of the jurors selected to try defendant, remark concerning the defendant: "The

-, they ought to hang him.” E. W. Hunt was subsequently examined, and denied that he had ever made such a remark.

The foregoing contains substantially all of the material evidence before the court upon the motion, excepting that shown by the examination of the various jurymen on their voir dire. With the exception of L. A, Weller, the justice of the peace, there is not a witness who expressed an opinion that he thought a jury could be obtained that would not be influenced by the public sentiment against the defendant. The sheriff thought it possible to get such a jury, but he would not say he thought it probable. George Watt was of the opinion that he had cooled down sufficiently so that he could give the defendant a fair trial, and he expressed an opinion to the effect that the sentiments of most of the people ought to be the same as his own; but he did not venture the opinion that he believed they were. One hundred and seventy-five jurymen were examined before the jury was finally obtained, and it appears that the available jurymen of the county were very nearly exhausted when the jury was secured. Of the talesmen examined, 143 were excused by the court for having formed or expressed unqualified opinions touching the guilt or innocence of the defendant, and, all things considered, there can be but little, if any, doubt that the opinion formed or expressed went to the guilt of

the accused. After deducting from the list those that were excused for other causes, it is safe to say that 80 per cent. of the jury lists had formed or expressed an unqualified opinion as to the guilt or innocence of the defendant. Of the jury that was finally secured to try the case, 5, who resided in or near the towns of Austin or Battle Mountain, had expressed qualified opinions touching the guilt or innocence of the defendant that they stated would take evidence to remove, and of

he 5 it has been strenuously contended that 2, at least, were shown to have been disqualified, namely, L. A. Lemaire and E. W. Hunt.

L. A. Lemaire, after testifying, and showing satisfactorily, we think, that the opinion which he then had was a qualified one, testified as follows concerning the expression of an opinion: “Q. Have you expressed an opinion as to the guilt or innocence of the defendant? A. Yes, sir. Q. Was that opinion expressed with a qualification, or just an expressed opinion without a qualification? A. The opinion is from what I have heard and read of the matter. Q. Did you qualify it when you expressed it? A. I don't think I qualified it.

Q. You stated that you have expressed an opinion, and without any qualifications? A. Yes, sir.” Upon examination by the district attorney the juror testified: “Q. Mr. Lemaire, if I understand you correctly, you say that the opinion you expressed was one you had formed from what you had heard and read? A. Yes, sir. Q. You based your opinion on that? A. Yes, sir. Q. You have not heard any of the proceedings in the case? A. No, sir.

A. No, sir. Q. You were not present at the coroner's inquest or the preliminary examination? 4. No, sir. Q. Then you have not heard any opinion, except that which you formed on what you had heard and read? A. No, sir. Q. Is that the opinion you expressed ? A. Yes, sir. Q. Did you, at the time you expressed that opinion, have in your mind the reservation that it was a qualified opinion, based on those things that you had heard and read? A. If I had not heard and read anything, I could not have formed any opinion. Q. Isn't your opinion something like this: If so and so is the case believe so and so, or if matters I have heard are true I believe such and such a thing. Was that the nature of the expressions you made? A. I took what I heard and read to be the facts of the case, and expressed an opinion accordingly. Q. You had no reason to doubt what you had heard? A. No, sir. Q. It was on the strength of that that you expressed an opinion ? A. Yes, sir.” The court then examined the juryman as follows: “The Court: Do you know the difference between a qualified and an unqualified opinion? A. Yes, sir. Q. What opinion did you express? Was it qualified, or unqualified ? A. I think it was a qualified opinion.”

The expressing of an unqualified opinion

touching the guilt or innocence of the de- ther than the opinion that he committed the fendant, when such opinion is not based act? A. Yes, sir. Q. But it was a qualified solely upon newspaper reports, is by statute opinion? A. Yes, sir. Q. You qualified it, made a disqualification of a juryman, re- then? A. Yes, sir. Q. How did you qualify gardless of what opinion the talesman may it? A. By the word 'if,'” actually have at the time of his exmination. While it is urged that, upon the testimony Criminal Practice Act, $ 310 (Comp. Law's, $ quoted, this juryman is disqualified, we will 4305); State y. Roberts, 27 Nev. 449, 77 Pac. only consider his examination, the same as 398. Mr. Lemaire, having been examined that of Mr. Lemaire, as a part of the case both as to the opinion which he then enter- presented to the court upon a motion for a tained and as to an expression of an opinion change of venue. From all the facts and which he had previously made, must have circumstances before the court, can it be confused the two propositions; for his an- said that it was an abuse of discretion to swers given to the court and to counsel are have denied defendant's motion for a change in conflict. It is to be regretted that his at- of venue? It must be apparent that the proptention was not called to this conflict, and er solution of the question here presented is the juryman given an opportunity to express of fat greater importance than the mere queshimself so that there would be no possibility tion of the guilt or innocence of this defendof a misunderstanding. From the examina- ant. The right of trial by a fair and imtion of this juryman by counsel for the state, partial jury is one of the most valuable privas well as the defendant, taken alone, we ileges guarantied by Constitution to the citithink the juryman would be disqualified. zen. The law cannot be a respecter of perThe answers given to the only two questions sons, and say that this man shall be tried by propounded by the court, taken alone, would a jury uninfluenced by public sentiment, and show him to be a qualified juryman. Tak- another man must take his chances with a ing his whole examination upon the question jury that is subject to all the insidious forces of the character of opinion he expressed, and that an almost universal public sentiment has it is contradictory, if not utterly confusing; time and again been demonstrated to wield. a condition which one or two questions from It is the glory of our judicial system that it counsel would have easily cleared.

throws the safeguards of protection from imE. W. Hunt testified that he had both proper influences around the high and the formed and expressed a qualified opinion low, the rich and the poor, alike. No matter touching the guilt or innocence of the de- how low a man may fall in the scale of hufendant. During the course of his examina- man degradation, no matter how deep-dyed a tion the following questions were propounded criminal he may be, the law says he shall and answers given: "Q. Have you ever ex- not be punished for his crimes, except upon pressed the opinion that the defendant was a fair and impartial trial before an unprejuguilty or ought to is: hung? A. No, sir. Q. diced jury. If we are to say that the Have you ever expressed the opinion that showing was in this case insufficient to warhe was guilty? A. I have. Q. You have ex- rant a change of venue, we have at least espressed that opinion? A. Yes, sir. Q. Do tablished a precedent that more of a showyou entertain that opinion at this time? A. ing than that here disclosed must be made Not of the indictment. Q. Do you in any before a change of venue can properly be had. sense? A. I do of the act; yes, sir." Prior But we do not believe such precedent should to the foregoing the following questions and be established. It is shown here by overanswers appear in the examination of this whelming proof that it was almost the unijuryman: "Q. How many people have you versal belief in the county of Lander that talked with about this case? A. Quite a the defendant was guilty of the crime chargnumber. Q. Have you heard any expres- ed. The homicide was one which naturally sions of a favorable opinion to the defend- would create a strong feeling of prejudice ant? A. Yes, sir; one. Q. Outside of court? against the prisoner in a county of small A. No, sir. Q. You bave expressed your population and where the person killed was opinion a good many times? 1. Yes, sir. very generally known, respected, and popular. Q. You have expressed it to the effect that Even if it were possible to procure a jury of the defendant was guilty, have you not? A. 12 men from remote parts of the county who Vot of the indictment; no, sir. Q. But he were not acquainted with the parties, and was guilty of the homicide? A. Yes, sir. Q. who had not heard the case discussed, and You have expressed the opinion that the de- who could readily qualify, yet it would be fendant was guilty of the act? Is that what hardly possible for such a jury not to become you said ? . I have never expressed that aware of the existence of such a general pubopinion, because it is not necessary. There lic sentiment; for the jurymen could not is no opinion on such a thing. Q. He is help but listen to the examination of the guilty of the homicide; you know that? A. other talesmen, nearly nine-tenths of whom I believe that to be true. I do not know it. were disqualifying themselves because of Q. You have expressed an opinion that far, their opinions, a circumstance to be considerhave you not? A. Yes, sir. Q. Have you ed, with others in the case, even though it pxpressed an opinion any further than that? alone might not be sufficient to warrant a 1. I expressed a qualified opinion. Q. Fur- change of venue. In this case, however, a

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number of the jurymen selected to try ap- | prisoner by the culpable modes of mob viopellant must have been acquainted with the lence, which is the enemy of all law and god public sentiment, independent of what might government, it is difficult to keep the infer-be lisclosed upon the examination of other tion of such prejudice from finding its way jurymen.

into the jury box, however honest in purpose · As apropos to the case now under consider- the jury may be, or however enlightened may ation we quote from an opinion of the Su- be the community from which they come. preme Court of Iowa in the case of State v. The duress of public opinion is often insidiCrafton, 89 Iowa, 109, 56 X. W. 2:57: "Each ous and potent, and the best of men some case must depend upon its own peculiar facts

times become its victims without being aware and circumstances. We know how difficult it of it, or without the courage to resist the is for an appellate court to see these matters do

dominion of its influence." See, also, People as they may have appeared to the trial judge, v. Suesser, 132 Cal. 631, 64 Par. 1095; State and hence it becomes us to be exceedingly

v. Manns, 48 W. Va, 480, 37 S. E. 613.

As we careful in passing upon the question of the

have before stated, each case must depend proper exercise of the discretion vested in upon its own particular facts and circumthe trial court. When, after due investiga- stances; but none of the numerous cases cited tion, we are satisfied that the trial court has : by counsel for the state, in our judgment, áfmade a mistake, it is our duty to rectify it

ford a precedent for sustaining the order of as far as possible. The language of this court the court in this case. in the case of State v. Nash, 7 Iowa, 347, is

The defense of insanity, superinduced by applicable in this case. It was there said:

It was there said: alcoholism, was interposed by the defendant. 'It is important, to maintain the usefulness

Two physicians, Dr. W. L. Samuels and Dr. of our judicial system, that no suspicion of

Jonihan, testified that, from their examinainfluence from popular excitement in the ad

tion of the defendant and from the evidence ministration of the law should be allowed to

adduced, the defendant was, at the time of

the homicide and at the time of their testifsimpair the public confidence in the fairness and impartiality of judicial proceedings. An

ing, suffering from alcoholic insanity, and excited state of public feeling and opinion is

was mentally irresponsible for his acts. Dr.

A. L. Mann, from what would appear to be always the most unfavorable for the investigation of the truth. Not only should the

equal opportunities of examination and ob

servation and from the evidence adduced, mind of the juror be wholly without bias and

testified on behalf of the state that the deprejudice, it should not only be free from all

fendant in his opinion was sane, both at the undue feeling and excitement in itself, but it

time of the homicide and at the time of the should be, as far as possible, removed from

trial. This disagreement in the views of the influence of prejudice and feeling and ex

physicians of standing upon a question of (itement in others. A man charged with the

so great importance serves to illustrate how commission of the grave crime of murder has

dangerous it might be for such a vital quesa right to be tried by an impartial jury and

tion, upon such a conflict of testimony, to in a community where his case has not been

be left to a jury selected from the body of prejudiced and prejudged. and prejudged. It matters not

a county, where it may be reasonably prewhat the standing or reputation of this de

sumed from the evidence adduced that nearly fendant may be, or how low his condition,

nine-tenths of the residents of the county the law throws around him all the safeguards

believed unqualifiedly in the guilt of the de which the enlightened wisdom of the ages

fendant, and where nearly half of the juryhas shown essential to the safe, orderly, and

men were selected from whose portions of the impartial administration of justice. Consid

county where the feeling was most general ering the magnitude of the crime charged, the

and bitter, and who showed by their examinalimited time between the homicide and the

tion that they were aware of the public feeltrial, the showing made for a change of

ing and were themselves possessed of qualivenue, and the weakness of the resistance, we

fied opinions as to the guilt or innocence of are impressed with the conviction that the

the defendant which would require evidence court below erred in overruling defendant's

to remove. From all the facts and circuminotion.” Also from the opinion of the Su- ; stances of this case we think a jury selected preme Court of Alabama in the case of Seans

as this one was would likely be influenced v. State, 84 Ala. 410, 4 South. 21: "We re

more or less by the general public feeling, peat that the trial must be just, as well as

instead of being governed entirely by the the verdict reached through its appliances.

evidence introduced upon the trial. This cannot be done as long as the minds of

For the reasons given, the judgment is the jury are liable to be influenced by a pre

reversed, and the trial court is directed to vailin; public prejudice against the prisoner.

grant the motion for a change of venue, for When excitement runs high, and it public

the purposes of a new trial, which is ordered. sentin:ent generally or widely prevails which ; would justify or tolerate a dealing with the TALBOT, C. J., and SWEEXEY, J., concur.

(29 Nev. 411)

out in the original complaint, and both demandSMITH v. WELLS ESTATE CO. (No. 1,714.) ing damages and general relief.

Norcross, J., dissenting. (Supreine Court of Nevada. Aug. 3, 1907.)




Court, Washoe In the absence of a waiver of objection,

County. appellant's affidavit setting out the proceedings Action by G. M. Smith against the Wells of the trial court would be an insufficient tran

Estate Company. From an order dismissing script, since the methods of taking appeals are matters of purely statutory regulation, and only

his amended complaint, plaintiff appeals, and hills of exception properly settled and signed by defendant moves to dismiss the appeal. Mothe judge and records complying with the stat- tion denied, and order appealed from reute will be considered.

versed. [Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 2162.)

0. H. Mack, for appellant. S. Summerfield, 2. SAME-WAIVER OF OBJECTIOX-BRIEF.

for respondent. Under Supreme Court Rule 11 (73 Pac. xiv), requiring respondent to file and serve his brief within 15 days after the service of appel

TALBOT, C. J. The motion to dismiss the lant's brief, and making a failure by either

appeal and the merits in this case may be party to file his brief within the time provided more conveniently understood and considered a waiver of the right to orally argue the case, together. or to recover certain costs, and under rule 8, providing that exceptions or objections to the

The appellant, G. J. Smith, with P. W. statement or transcript must be taken at the Nicholson, T. J. Pickett, and his wife, Mary first term after the transcript is filed, and must M. Pickett, filed a complaint against the Wells be noted in the written or printed points of respondent and filed at least one day before the

Estate Company, a corporation, in the court argument, or they will not be regarded, where below, alleging Smith to be the owner in fee appellant filed his brief February 26th and on of 10 lots, together with 11 miners' inches of April 1st, without making any reservation re

water in the S. O. Wells ditch, in McCorspondent obtained an order allowing it 10 days to file its brief, and it failed to file a brief or

mick's addition to the city of Reno, and that make any motion to dismiss the appeal within he is in possession of these lots and entitled to 15 days after the filing of appellant's brief, it the possession of this water: that Pickett and waived its right to object to an irregularity in

his wife were the owners in fee of 3 lots, the manner or form of certification of the order appealed from.

and 1 miners' inch of water, in the S. 0. [Ed. Note.-For cases in point, see Cent. Dig.

Wells ditch, in said IcCormick's addition, vol. 3, Appeal and Error, $$ 2791, 2795.]

and were in the possession of these lots and 3. SAME-STATUTES CONSTRUED.

entitled to the possession of this water; that Prac. Act, § 332 (Comp. Laws, $ 3427), Nicholson had purchased of the plaintiffs provides that when a party, who has a right of

Pickett and wife the 3 lots and 1 miners' inch appeal, desires a statement of the case to be annexed to the record of the judgment or order,

of water so owned by them, and had made he should prepare and file such statement and partial payments therefor. There was an alserve a copy thereof on the adverse party, who legation that the water flowed, and that may file proposed amendments thereto, which

plaintiff Smith was entitled to an easement may be_settled and certified by the judge. Section 337 (Comp. Laws, $ 3432) provides that the and right of way to have it flow, through the five preceding sections "shall not apply to ap- S. O. Wells ditch to his lands, and that he peals taken from an order made upon affidavit had long and continuously used it therein; filed but such affidavit shall be annexed to the

that the defendant, through its agents and order in the place of the statement mentioned in those sections." Held, that the language employés, disregarding the plaintiffs' rights, quoted was not intended to authorize the filing had filled up large portions of the ditch above of records on appeal set out and supported by

the plaintiffs' lands and diverted all the waan affidavit made after the order of the lower court and filed in the Supreme Court for the

ter from their premises, to the damage of purpose of showing its proceedings, but rather the plaintiff Smith in the sum of $800. There to allow a simple method for taking to the Su

were special allegations that, by reason of preme Court for review orders of the district

such diversion, the grass, verdure, garden, court made upon affidavits filed therein previous to the making of such orders, by filing as the trees, and shrubbery growing on Smith's record on appeal copies of such orders attached lands had dried up and died, to his damage to the affidavit on which they were based, sup

in the sum of $200, and that he had been ported by the proper certificate of the clerk.

compelled to pump and carry all the water 4. PLEADING-DEMURRERS SUSTAINED FOR

for his live stock and poultry and for domesMISJOINDER-RIGHT TO AMEND.

Under Prac. Act, $ 68 (Comp. Laws, 8 tic purposes in his residence, to his damage 3163), providing that the court may in further- in the sum of $240. There were separate alance of justice amend any pleading or proceed

legations of diversion of the water from and ing by adding or striking out the name of any party, and section 71, providing that the court

damage to the lands of the other plaintiffs. shall in every stage of an action disregard any The prayer in the complaint asked for an error in the pleadings or proceedings not affect

order of the court compelling the defendant ing substantial rights. where plaintiff and oth

to open, repair, and clean out the S. O. Wells ers, several owners of different lots, sued for the diversion of water therefrom, and a demur- ditch and to let the waters of the plaintiff's rer for misjoinder of parties and causes of ac- flow through it undisturbed to their lands, for tion was sustained, it was improper to strike plaintiff's arrended complaint in which he sued

damages to them in separate amounts and for alone; the allegations of the amended complaint general relief. A demurrer to this complaint relating only to property, acts, and matters set on the grounds, among others, that there was

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