Appeal from Second Judicial District Court, Washoe County; Edward A. Ducker, Judge.
J. M. Frame, for Appellant.
Geo. B. Thatcher, Attorney-General, and E. T. Patrick, Deputy Attorney-General, for Respondent.
By the Court, Coleman, J.:
The appellant, J. Frank Tranmer, was indicted in the district court of Humboldt County, together with one
Nimrod Urie, for the murder of Maria D. Quilici. Separate trials were ordered, appellant was convicted of murder in the first degree, and the jury fixed the penalty at death. From a denial of a motion for a new trial, and from the judgment of the court imposing the death penalty, an appeal has been taken to this court.
1. At the time the case at bar was set for trial by the district court, appellant was serving a life sentence for the murder of one Eugene Quilici; and, when application was made to that court for an order that appellant be brought from the state prison for trial, appellant, through his attorneys, objected to the making of the order, for lack of jurisdiction. The overruling of the objection is assigned as error. The identical question here involved was before the court in Ex Parte Tranmer, 35 Nev. 56, 126 Pac. 337, 41 L. R. A. n.s. 1095, where the question was decided adversely to appellant's contention. Suffice it to say that we have carefully considered the point urged by appellant, and we think that the holding of the court in Ex Parte Tranmer, supra, is sustained by both reason and authority, and that no good purpose would be served by discussing the question at length in this opinion. An elaborate note to Ex Parte Tranmer may be found in 41 L. R. A. n.s. 1095, where it is stated that the great weight of authority sustains the position of the court in that proceeding. The only later case in point which we have been able to find is that of State v. Rodgers, 100 S. C. 77, 84 S. E. 304, which is in line with the views expressed in Ex Parte Tranmer, supra.
2. It is next urged that the evidence fails to establish the corpus delicti. In the case of State v. Ah Chuey, 14 Nev. 92, 33 Am. Rep. 530, it was held that the corpus delicti may be established as well by inference from facts as from positive testimony. In State v. Cardelli, 19 Nev. 324, 10 Pac. 436, it was said:
While it is true that a person charged with the commission of a criminal offense is not called upon to answer the charge without satisfactory proof, upon the part of the prosecution, of the corpus delicti, yet it is not
essential, in all cases, that there should be any direct evidence upon this point.
Such is the general rule. (Wharton's Criminal Law, 11th ed. sec. 352, citing many authorities.) In 21 Cyc. at p. 1029, it is said:
The sufficiency of the proof of the corpus delicti is a question for the jury.
3. The evidence in the present case is quite voluminous, and clearly shows that Eugene Quilici and Maria D. Quilici, his wife, resided at Imlay, Humboldt County, Nevada, on and for some time prior to January 6, 1911; that on that night the defendant and one Nimrod Urie, for the purpose of robbery, went to the saloon which was being run by Eugene Quilici, and shortly after entering the place shot both Quilici and his wife, Maria D. Quilici; that Eugene Quilici died instantly; and that one Maria D. Quilici died at Winnemucca, in the same county, about twenty-five miles from Imlay, on or about the 9th of that month, from a gunshot wound.
It is contended that the evidence fails to show that the Maria D. Quilici who died at Winnemucca was the same Maria D. Quilici who was shot at Imlay. We think the jury had ample evidence before it to justify it in finding that the Maria D. Quilici who died in Winnemucca was the Maria D. Quilici who was shot at Imlay. One Lommori, who was called as a witness on the part of the prosecution, testified as follows:
Q. Did you know Maria D. Quilici in her lifetime? A. Yes, sir.
Q. What relationship, if any, existed between you and Maria D. Quilici? A. She was my sister.
Q. Where did she live? A. At Imlay. * * *
Q. Mr. Lommori, you realize the fact that the defendant Frank Tranmer or J. Frank Tranmer is being tried for the murder of your sister, do you? A. Yes, sir. * * *
Q. Was your sister married? A. Yes, sir.
Q. To whom? A. To Eugene Quilici.
Q. I will ask you if you were a witness at the coroner's
inquest over the body of your sister, Mrs. Quilici? A. Yes, sir.
On cross-examination, the witness testified, in part, as follows:
Mr. Frame (counsel for defendant)Q. You testified in that preliminary, a short time after the occurrence of the killing of your sister, did you not, Mr. Lommori? A. Yes, sir, a short time afterwards. * * *
Q. Now, referring to your testimony given at the preliminary hearing between January 12 and January 19, 1911, the same occurring a few days after the occurrence in which your sister was killed, * * * I will ask you to state whether you testified as a witness at and before the coroner's jury investigation for the death of your sister Maria D. Quilici, the same being held before Justice Dunn in the month of January, 1911, at Winnemucca, Humboldt County, Nevada, about January 9? A. I do not remember.
Mr. FrameI suppose it was admitted that it was given there?
Mr. Woodburn (district attorney)Yes, sir, it was there. That is correct. * * *
Q. Did you ever hear, just before the happening of the occurrence in which you sister was killed, of Mr. Quilici having an arrangement to buy the Robinson-Kelley saloon which was situated alongside of or near the Quilici saloon? A. Yes, sir. * * *
Q. Were you at the depot in Imlay on the day following the killing of your sister by some parties, about noon, when Sheriff Lamb Brought the two men to the depot?
From the foregoing extracts from the evidence it will be seen that witness Lommori testified that he knew that the defendant was on trial for the murder of his sister Maria D. Quilici, which was committed January 6, 1911, and that he attended the coroner's inquest over her body at Winnemucca on January 9, three days later, and the preliminary examination which was held a few days ...