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State v. Whitaker

December 31, 1916


Appeal from Tenth Judicial District Court, Clark County; Charles Lee Horsey, Judge.

F. R. McNamee and Leo A. McNamee, for Appellant.

By the Court, Coleman, J.:

Appellant and two others were charged jointly in Clark County with the crime of burglary in the first degree. The jury brought in a verdict of guilty as to appellant, and not guilty as to the other defendants. This appeal is taken from an order denying a motion for a new trial and the judgment.

It was charged that the defendants broke into the mill of the Searchlight Mining and Milling Company and stole therefrom nine or ten amalgamating plates. The evidence against defendants was entirely circumstantial, and the only error assigned is that there was no evidence upon which a verdict of guilty could be based; and that even if there was evidence that appellant burglarized the mill, there was a total failure to show that it was done in the nighttime, which is the essential ingredient of burglary in the first degree.

[39 Nev. 159, Page 162]

1. It has been held by this court in numerous instances that a criminal case will not be reversed for insufficiency of the evidence if there is substantial evidence to support the verdict. (State v. Thompson, 31 Nev. 217, 101 Pac. 557.) Appellant finds no fault with this rule.

2. Witnesses in behalf of the state testified that the plates in question were in the mill on July 13, 1915, but that on the 15th of that month it was discovered that the mill had been broken into and the plates taken out. When it was discovered that the mill had been burglarized, the deputy sheriff at Searchlight, two miles away, was notified, and he at once took steps to apprehend the guilty parties. He called to his assistance a number of men in the vicinity. It was sought to track the persons who had committed the crime. One of the lessees of the mill testified that shortly after the “clean-up,” which took place about July 1, he put papers on the plates to protect them. Some of the witnesses testified that they traced fragments of papers and small portions of amalgam from the plates for a distance of about 200 feet from the mill, at which point tracks of horses were discovered, which were trailed to the camp of the defendants. One of the witnesses who did the trailing testified that he had shod the horses, and that a cut-off shoe was put on one foot by him, which enabled him to distinguish the track. It was also testified that in places leading from the mill to where the horses were mounted, and at other points along the trail, there were tracks of two men, one of whom wore shoes with hobnails in them, and that on one shoe the nails were broken from the heel in a particular place, which made the track easy to identify.

This witness also testified that after the defendants had been arrested and taken to Searchlight he observed the track of appellant, and it was the same (with some missing nails) as the one he saw leading from the mill and along the trail of the paper, and which he saw in other places leading to the camp of defendants.

The plates weighted about 450 pounds; and as the horses were small, and defendants' camp twenty-one miles from

[39 Nev. 159, Page 163]

the mill, it was the theory of the state that defendants thought it too much of an undertaking to have the horses make the trip from the camp to the mill and back, carrying the plates.

The plates were not found in the possession of any of the defendants, but were found on July 27 about two miles from the mill, rolled up. At the camp of defendants a canvas was found. One witness testified as to the appearance of this canvas:

“Q. What marks, if any, did you find on the canvas? A. A long, narrow mark, taking up about the length of the canvas.

“Q. Resembling what? A. Well something hard enough to make that mark had been resting against it, and also—

“Q. Will you pick out the canvas that you say you saw? A. Yes, sir (Witness examines first piece of canvas). That doesn't show anything extra. (Witness examines second piece of canvas.) That is one of the marks, I guess.

“Q. This mark along here? A. Yes, sir.

“Q. What is the color—what color does that resemble? A. Sediment and mud.

“Q. Off of what? A. It may have been from the plates, and it may have been—where that piece were cut out it was thicker and heavier. It isn't so very heavy along here.

“Q. I call your attention to two holes there where some stuff has been cut out. A. There?

“Q. Yes. A. Yes, sir.

“Q. Who cut it out? A. My partner.

“Q. In your presence? A. No sir; not in ...

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