The State of Nevada v. Chapman.

V. The offense is robbery. The acts constituting it are the "felonious and violent taking of money from the person of Frank C. Minshull," etc. These acts are stated in the indictment. It is generally sufficient to charge the acts or facts of the crime in the language of the statute. (1 Bishop Criminal Procedure, Sec. 359, and cases cited, note 1.)

By the Court, WHITMAN, J.:

The appellant was jointly indicted with others, and convicted of robbery. He alone appeals, upon various grounds, which will appear in the course of this opinion.

On the morning of the 5th November, 1870, the cars of the Central Pacific Railroad Company of California were stopped in Washoe County, in the State of Nevada, by the defendants named in the indictment other than the appellant, and the treasure-box of Wells, Fargo & Co. broken open and robbed of $10,000. Appellant was not personally present; but was in San Francisco, California, where, it is contended by the State, he had gone in pursuance of a previous agreement, to telegraph from thence to his co-defendants, or some of them, when a large freight of treasure started for the use of the mines at Virginia City, in the State of Nevada. One of these testifies fully on this point, and another to some extent; but appellant claims that such evidence is uncorroborated, and that therefore a conviction was improperly had; relying upon the statutory provision as follows:

"A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense, or the circumstances thereof." (Stats. 1861, 473, Sec. 365.)

Upon review of the transcript, it appears that there was some evidence tending to corroborate the accomplices, as by statute required. Several witnesses, not defendants, thus testify. Roberts and Evans both place appellant in company with three of the defendants, (one of whom is the witness who gave full evidence of the agreement) at the time and place testified to, and Roberts in addition swears that the witness, accomplice, and appellant came in a wagon together. Newby swears that subsequent to the time

The State of Nevada v. Chapman.

above referred to, the appellant was in company with one Squiers, a defendant, in the night time, in San Francisco. Ladd testifies to the sending of a telegram as agreed by appellant, over an assumed name, to the accomplice witness. Arthurs says that the key to this telegram produced at the trial was in the handwriting of appellant. Burke and Edwards testify that appellant denied the sending of this telegram upon its exhibition to him, after his arrest. How much the weight of this evidence may be, is not for this Court to decide. It is evidence tending to the statutory corroboration; considered by the jury sufficient; and therefore the objection of appellant must fail.

The indictment charges the robbery in two counts, the only difference being, that in one the money is charged as being the property of Wells, Fargo & Co., and in the other it is laid in the messenger having at the time special custody thereof. This appellant insists is a charging of more than one offence in the same indictment. It would be difficult, if not impossible, to frame a better indictment than the one at bar. In these days of peculiar pleading, it is absolutely refreshing to read such an one. The criminal statute of this State permits the double count. "The indictment shall charge but one offense, but it may set forth that offense in different forms, under different counts." (Stats. 1861, 460, Sec. 238; People vs. Thompson, 28 Cal. 214.)

Appellant applied for a continuance, upon an affidavit in which he set forth that Joseph Steinhart, Samuel Brown, Dr. Wm. Jones, R.D. Sutton, one Gilmore, and one Reid, were all material witnesses, without whom he could not safely proceed to trial. Their evidence is not detailed, and the averment as to its materiality is, to say the least, weak; and it is consequently urged by respondent that the application was, or might have been, properly denied upon that ground; but it is evident from the record that the Court below assumed the materiality of the testimony, excused the appellant from stating the same at length, and decided the motion upon other points. To take a different course now would be unfair, and appellant might properly complain that he had been deceived, to his injury. To ascertain whether the ultimate ruling was correct, requires a further examination of the affidavit.

The State of Nevada v. Chapman.

Steinhart was produced upon the trial, and examined by appellant; so as to this witness no harm could have happened to him by the denial of his motion.

The application was made December 12th, 1870. Appellant states in his affidavit, "That in order to learn the whereabouts of said Reed and Gilmore, affiant wrote to Dr. A. J. Egery, on the twenty-eighth day of November, A. D. 1870; and that he and his counsel have made, as affiant knows of his own knowledge on his own part, and is informed and believes, on the part of his counsel, diligent inquiries for the present place of abode, or sojourn, of said Samuel Brown, ever since this case has been set for trial. ** That said Dr. Jones and A. D. Sutton reside in California; said Jones in San Francisco, and said Sutton in Nevada City, in California; that on the third day of December, A. D. 1870, affiant wrote to Mrs. A. D. Sutton, requesting the attendance of said A. D. Sutton at this trial; that on the eighth day of December, 1870, he caused subpoenas for all of the above named witnesses, and others his witnesses, to be placed in the hands of the sheriff of this county, and that after due diligence said sheriff did not find any of the above named witnesses in this county. That said Samuel Brown has been a resident of Washoe County for two years or more last past, until about June, A. D. 1870, when he went away temporarily, driving a team for Jerry Gantz, making a circuit with a circus company, intending to return this winter. That affiant saw said Samuel Brown on the morning of the seventh of November, A. D. 1870, in San Francisco, and for several days before that time; and he was talking and told affiant that he should return to Reno, Washoe County, and winter there with his acquaintances; but notwithstanding diligent inquiries, affiant has not been able to learn where said Brown is, from any of his acquaintances about Reno; and has not been able to learn of the present whereabouts of Jerry Gantz, who thus employed said Brown, though said Gantz has been daily expected back at Reno by his friends there. That said Brown was only temporarily sojourning at San Francisco. That said Reed has also left San Francisco, and also said Gilmore. That the latter was a resident of Pine Grove, in Esmeralda County; was waiting at San Francisco the prospecting of some mines in Placer

The State of Nevada v. Chapman.

County, which if favorable he intended to winter there; otherwise to return to Pine Grove, Nevada."

Now, unless the District Court abused its discretionary power in refusing the continuance, the ruling must be sustained. While, perhaps it might be held that the granting a continuance upon such a showing would not be such an abuse of discretion as to warrant a reversal of the order, still the argument that way is much stronger than its reverse. While the rights of a defendant are to be carefully guarded, still the State has rights also; and to grant a continuance upon an affidavit like this one quoted, would be to go a long way toward trifling with justice.

The diligence shown is of the slightest. The subpoena to the sheriff was, under the circumstances, an unmeaning form; and with regard to Reed and Gilmore, it may fairly be said that none is shown, as the writing to Dr. Egery amounts to nothing at best, and might perhaps be the very cause of their mysterious disappearance; and why Mrs. Sutton should have been addressed rather than her husband, who was the person sought, is unexplained. But waiving the question of diligence, nothing appears in the affidavit from which the District Court could infer that the residences of the witnesses, or any of them, were known to the affiant; or that there was a reasonable legal probability that their attendance could be had within any proper time; indeed, the presumptions are all the other way.

There is no method of compelling the attendance, or taking the testimony of witnesses out of the State in criminal cases; and it devolved upon the appellant herein to present some satisfactory showing that he had reason to believe his desired witnesses could be produced at some early day, before the Court would have been justified in granting him delay. (People v. Francis, 38 Cal. 183.) The continuance was therefore properly denied.

One Twaddle was examined as to his competency as a trial juror, and was challenged by appellant as the record shows, "for cause.' There is no further specification of the ground of challenge, and it was overruled; whether for this reason or not is immaterial. The challenge was entirely insufficient under the statute, and that fact relieves this Court from the consideration of the questions, whether

The State of Nevada v. Chapman.

the District Court decided and ruled upon the ground that the juror was not disqualified by reason of any of the statutory causes; and whether, so deciding, it was or was not correct. The disposal of these objections against the appellant clears the way for others going more entirely to matter of greater final importance.

The indictment charged all the defendants as principal actors. The evidence, if taken as true, proves the following state of facts, as to appellant: That in Sierra County, in California, on some day between the tenth and twenty-second days of October, 1870, he agreed with Jones, Davis and Cockerell, three of his co-defendants, that on or about the fourth day of November, then next to ensue, the express car of Wells, Fargo & Co. should be robbed of the treasure, about that time expected to be on it. That he would go to San Francisco, watch the office of Wells, Fargo & Co., and in an agreed cipher telegraph to Jones at Reno, in the State of Nevada, a point near where the robbery was to be attempted, when the large monthly shipment of coin for the use of the mines in Virginia City and vicinity should be made. That appellant sent the telegram which Jones received, and in connection with the other defendants, acted upon, and as has been before stated, on the morning of the fifth of November, 1870, robbed the express car of Wells, Fargo & Co., of forty thousand dollars. That on the ninth of the month last named, appellant was arrested at the Capital House, in Reno, the place where the telegram before referred to was agreed to be, and was, sent by him to Jones.

Appellant urges, first: "That any and all of the acts attempted to be proven against him constitute no public offense under the laws of this State, all his acts being those of an accessory before the fact, and all having transpired in the State of California." To support this proposition, cases are cited which would be in point and of great weight, had not the rule at common law been modified by the statute law of this State. "An accessory is he or she who stands by and aids, abets or assists; or who, not being present, aiding, abetting or assisting, hath advised and encouraged the perpetration of the crime; he or she who thus aids, abets or assists, advises or encourages, shall be deemed and considered as principal and punished accordingly." (Stats. 1861, 57, Sec. 10.) "No dis