Brandow v. The Pocotillo Silver Mining Company.

mine in the event payment of said sum of fifteen thousand dollars is not made within the six months aforesaid."

This was accompanied by a deed from respondent to appellant, the description in which recites the granted property as "the First Northern Extension of Pocotillo, and being the same mine located on the twenty-eighth day of December, A. D. 1868, by J. S. Reece, H. W. Dunham, J. T. Quigley, W. J. Quigley and P. Fitzpatrick, and by them recorded on the same day in the mining records of said White Pine District, in Book E, page 229.”

This somewhat voluminous statement of fact and recital of evidence has been made, as it really comprises the whole case, and is of itself so nearly decisive that very little more need be said. Default occurring in the payment specified in the agreement, respondent filed his bill and claimed a foreclosure upon eighteen hundred feet of mining ground, one thousand north and eight hundred south, alleging that such was the Pocotillo mine. The answer denied, and averred that the mine referred to in the agreement was only the one thousand feet north; making, as will be seen, no controversy about the most northern two hundred feet.

It would seem that the position of the answer was so self-evident that there could be no room for doubt. But respondent was admitted to testify, and swore that the Pocotillo mine "embraces eight hundred feet south of the Belmont monument (that referred to in the notice first recited) and one thousand feet north of the same monument. The defendant is in possession of all the said ground, and has been ever since about the fifteenth day of May, 1869. The Pocotillo Company has done work on the mine; a portion of the work was done at the monument, and some work was done both north and south of the monument. The eight hundred feet and the one thousand feet comprise what is known as the Pocotillo mine."

Upon what theory this testimony was offered, or under what rule of evidence received, is difficult to imagine, and as difficult to perceive what possible bearing it has upon the case. If taken at all its possible weight, it is entirely in the present; and if so understood, of course could not affect the fact or intent of the parties at the date of the agreement. If it is to be construed as referring

The State of Nevada v. Stewart.

back to the date of the papers, then it simply proves an absurdity; for if appellant was at that time claiming the eight hundred feet south, it had no controversy with respondent. If it was claiming the eight hundred feet north, as in fact it was, then it had at that time no pretence of right to the southern ground, no business upon it, no authority to work it.

But upon the evidence no real conflict arises. The facts are plain, simple, coherent. The parties were disputing about the northern eight hundred feet; both claimed it; the agreement says that it was known as the Pocotillo mine, and about that ground and no other they litigated, compromised, agreed and conveyed. It is a legal impossibility that any other could have been intended, as there was none other in dispute-none other about which any agreement was necessary, or could have been sensibly framed upon the basis set forth in the instrument quoted. The matter is too clear for argument.

Let the decree of the District Court be modified, as claimed by appellant, so as to include the north one thousand feet of what is now known as the Pocotillo mine, and no more.

THE STATE OF NEVADA, RESPONDENT, v. T. B. STEWART, APPELLant.

UNDER INDICTMENT FOR GRAND LARCENY, PRINCIPAL OR ACCESSORY CAN BE LEGALLY CONVICTED. In a prosecution for grand larceny, where there is no evidence tending to prove guilt, either as principal or accessory before the fact, there can be no legal conviction.

APPEAL from the District Court of the Eighth Judicial District, White Pine County.

Defendant, together with A. Strauss, P. Duffy and others, was indicted for grand larceny for alleged stealing of certain cattle, the property of W. C. Reeves and R. W. Burmington. On a separate trial and conviction, defendant was sentenced to imprisonment in the State prison for the term of five years.

The State of Nevada v. Stewart.

It appears from the testimony that five head of cattle were stolen from Reeves and Burmington on February 4th, 1870, in the neighborhood of Hamilton, White Pine County; that on Sunday morning, February 6th, 1870, Strauss called on defendant about daylight, and directed him to get Duffy and go down to his slaughter pen, about a mile below Shermantown, and slaughter three head of cattle; that they were in the habit of slaughtering cattle for Strauss, who had a butcher shop in Shermantown; and that they accordingly slaughtered the cattle, which proved to be three of the cattle stolen.

There was no evidence showing any connection of defendant with the taking of the cattle, or any knowledge of them prior to the slaughtering; but it appears that the heads were burned, and the hides and tails concealed after the slaughtering; and it was charged that the defendant was connected with such burning and conceal

ment.

Garber & Thornton, for Appellant.

I. To convict upon circumstantial evidence alone, the circumstances proved must all concur to show that the defendant committed the crime, and must all be inconsistent with any other rational conclusion, and must exclude to a moral certainty every other hypothesis but the single one of guilt. (People v. Dick, 32 Cal. 213.) In this case there were no circumstances to show that defendant committed the crime, or any crime.

II. Defendant was indicted as a principal. Even admitting for the sake of the argument that he concealed the hides and tails with knowledge of the stealing, he became thereby only an accessory after the fact, and would have had to be so indicted and sentenced.

Robert M. Clarke, Attorney General, for Respondent.

Appellant's point, as to insufficiency of the evidence to support the verdict, is not well taken for two reasons: first, because the Supreme Court has no jurisdiction of fact in a criminal cause (Constitution, Art. VI, Sec. 4); second, there being some evidence in the record to support it, the verdict will not be disturbed.

Brown v. Lillie.

The proof being clear that the property was stolen by some one, and the possession being immediately traced to and found in the defendant, the evidence is prima facie sufficient to establish the defendant's guilt; and it rests upon the defendant to account for and explain the possession and thus rebut the presumption. (State v. Weston, 9 Conn. 527; State v. Brewster, 7 Vermont, 118; 2 Bishop Criminal Procedure, Sec. 698.)

By the Court, WHITMAN, J.:

In this case, wherein the appellant was convicted of the crime of grand larceny, there was no evidence proving, or tending to prove his guilt, as principal or accessory before the fact; hence he was illegally convicted.

The motion made for a new trial should have been granted, and was erroneously refused. That order and the judgment are reversed and the cause remanded.

BROWN & EAGAR, APPELLANTS, v. H. C. LILLIE, RE

SPONDENT.

JUDGMENT FOR DEFENDANT "NON OBSTANTE VEREDICTO," ERROR. When there was a verdict for plaintiff, and defendant moved for judgment non obstante veredicto and obtained it: Held, that such a motion, if allowable at all under the Practice Act, was only a motion for plaintiff, and that the action of the Court

was erroneous.

MOTION FOR JUDGMENT "NON OBSTANTE VEREDICTO." A motion for judgment non obstante veredicto, if proper at all under the Practice Act, can certainly not be made by defendant.

No LEGAL JUDGMENT ON VERDICT IRRESPONSIVE TO PLEADINGS. If a verdict is absolutely defective under the pleadings, no legal judgment can be entered thereon.

APPEAL from the District Court of the First Judicial District, Storey County.

This was an action by E. D. Brown and Thomas Eagar, partners doing business under the firm name and style of Brown & Eagar, for an injunction to restrain H. C. Lillie, the defendant, from sell

Brown v. Lillie.

ing, transferring, delivering, or otherwise disposing of three certain promissory notes for one thousand dollars each, and to compel him to transfer and deliver them to plaintiffs. It was alleged that the notes were originally received by Lewis Lillie, brother of defendant, as the agent of the plaintiffs, and for their use and in payment of their property sold by him. It was further alleged that Lewis fraudulently took the notes in his own name, and that defendant fraudulently received them from Lewis without consideration, and with intent to defraud plaintiffs.

Defendant in his answer denied the charges of fraud, and set up that he had received the notes for a valuable consideration before they were due, and without any notice of any claim of plaintiffs upon them; and that previous to the commencement of suit, he had already sold and transferred them for value.

The verdict was as follows: "We, the jury in the above entitled cause, find for the plaintiffs in the sum of twenty-five hundred and thirty-five dollars, the value of the property as described in the complaint."

The judgment proceeded thus: "In this cause, the jury who tried the same having found a verdict for plaintiffs, on which judgment was deferred by the Court for the purposes of defendant's motion for judgment for defendant non obstante veredicto; said motion being made, argued, submitted to and taken under advisement by the Court on the twelfth day of May, 1870: Now, on this, the fourteenth day of May, 1870, the Court having fully considered the same, grants said motion: Whereupon it is ordered, adjudged and decreed by the Court that plaintiffs herein take nothing by this their action; but that defendant, H. C. Lillie, have and recover of and from plaintiffs, E. D. Brown and Thomas Eagar, (Brown & Eagar) his costs in this action expended, taxed in the sum of twenty-six dollars and sixty cents ($26.60) in the gold coin of the United States."

Hillyer, Wood & Deal, for Appellants.

I. The verdict of the jury is conclusive upon the questions of fact. (Duff v. Fisher, 15 Cal. 380; State v. Yellow Jacket S. M. Co., 5 Nev. 417.)