Appeal from the Sixth Judicial District Court, Humboldt County; Edward A. Ducker, Judge.
James H. Wise, for Appellant.
Cleveland H. Baker, Attorney-General, for Respondent.
By the Court, Norcross, J.:
Appellant was jointly indicted with one J. Frank Tramner by the grand jury of Humboldt County for the murder of one Eugene Quilici. Upon a separate trial before the Sixth judicial district court he was convicted of murder in the first degree, and the penalty of death was imposed by the jury.
From the judgment based on the verdict and from an order denying a motion for a new trial, the defendant has appealed.
The case was finally submitted to this court on briefs. Although the record contains some sixteen assignments of error, only two propositions involving alleged error are considered in the briefs filed.
The court admitted as a part of the state's evidence, over the objection of defendant, the following written confession of the defendant: My full name is Nim R. Urie. My age is 23 years on August 1st. I know Diffendarfer. I knew Diffendarfer about fourteen years. I knew Frank Tramner since last April. Next day after Tramner returned from having taken Diffendarfer to Dutch Flat, I told him he could look after things there at the ranch, and I would come up here at Winnemucca to see if I couldn't get work, and he told me, It is no use going to work. You don't need to work,' he says. I will tell you how we can make some easy money'; and I says All right, how is that?' And he says, We will go up here, and hold up the Dago saloon.' I told him I didn't want to do any thing of that kind, and I could go to work in a few days. I could sell the horses anyway, and we didn't need to do anything like that. He says, Well, we are going to do it anyhow'; and then he went to work and told me how easy it would be to
get this money, and I told him, No'; that I didn't want to make that kind of money. And he says, We are going to do it, and you have got to do it; if you show any signs of turning me down or running off, I will kill you.' And then the next day we still talked about it, and I told him that day that if we did have to do it, and would kill any one, it would be bad, that we would get caught, and would both get in trouble, and he says, We won't need to kill him at all; we will go in there and throw our guns on him, and tell him to throw up his hands.' And I told him I didn't want to do it at all. And he told me again that I had to do it, and I came up here to Winnemucca the day before this happened, and before I left he told me that if I tried to run off, or get away or anything, that he would kill me if he had to follow me for ten years to do it. I thought when I started I would go any how, and I stayed up here one day thinking about it, and then I thought that I would talk him out of it, and I went back. I went down home that night, and he asked me what I thought of it by that time, and I asked him if he wouldn't let me go, and to go some place and go to work, and he said, No, you got to do this, and there is no use saying any more; you have got to do it.' Then I didn't say any more to him till the night that we started, and he got up the horses and came into me and says, You might as well get ready; we are going to do that.' And then he went in and fixed up these masks. And then we got supper, and then we went out and got on our horses, and he took the guns, and, when we got within two or three hundred yards of the Dago saloon, he tied my horse and took a rope, and tied my hands to the saddle horn. I was standing off to the side of the horse, and then he went up to Slaughter's saloon and got a bottle of whisky. And he came back and says, Throw some of this into you, and maybe you will feel better afterwards.' I took three or four big drinks, and then we put the masks on, and then he loaded the rifle and handed it to me, and told me to go ahead, and I went ahead until we got to the saloon.
And, when I got to the saloon door, I said, Frank, let's not do it'; and he shoved his gun up against my back, and said, Go on.' We went inside of the door, and I threw down on the Dago, Frank says, Throw up your hands,' and the Dago didn't do it. He got up and grabbed my rifle, and Frank shot; the Dago started to run out the door. Frank turned around to me, and says, What have you got that gun for? Why don't you use it?' He grabbed it out of my hands, and shot just as the Dago went out the door. Then he turned around, and handed the gun to me, and the Dago woman started to run, and he shot her with the six-shooter, and then he says to me, Lay your gun on the bar and go in, and get the money out of the register.' And then told me to put the money in my pocket. Then he told me to go in and search the rooms. And, when I went into this back room, these two boys were there. I went back and told Frank, There is some one in there'; and he says, Take your gun, go back, and make them hold up their hands, and ask them where the money is.' And then he says, We will go out the back door now.' And we went out the back door, and we went down to where our horses was, and I threw the cartridge out of my rifle, and he said, Give me that gun.' Then we got on our horses and rode down home. Then we got off and he told me to pull off the overalls and jumper and things I had on, and then he took me in the house and locked the door, and told me to give him the money that I had. Then he went off and rode off some place, and was gone about one-half hour. And then he came back. He came back into the room. He told me, Now you don't dare squeal. You are in for it just as bad as I am'; and he told me, Now you want to play sick in the morning'; and he says, Tell them that when I went up town last night, I went up to get some whisky and medicine for you.' And he says, Now, if they catch us, you want to act as if nothing is wrong, and that you didn't know anything about it and that you were home sick'; and he says, If you don't do this and we get out of it, if you
show any weak signs, I will kill you.' When I gave him these clothes, he asked me where the mask was, and I says I guess I have lost it.' He says, You are a pretty son of a bitch. I ought to plug you right here.' I told him that I didn't do it intentionally, that I didn't mean to lose the mask. We went to bed about 10:30 slow time. When we got to where he tied the horses, he said he would have to go up and see how things were. That I make this confession freely and voluntarily and without persuasion or promise of leniency of any kind either by Sheriff Lamb, Mr. Rich, J. A. Callahan, or any other person or persons whomsoever.
Subsequently the court ordered the confession stricken out, and at the time instructed the jury to disregard the same. The court also in its instructions embodied the following: The jury must not regard or consider any evidence which has been excluded by the court or stricken out by the order of the court, but ...