State v. Lambert

| Nev. | Jul 15, 1874

By the Court,

Belknap, J.:

The appellant was indicted at the December term, 1873, of the Seventh Judicial District Court, for the crime of grand larceny in stealing seven horses the property of one Pearson. At the trial the court refused to admit in evidence an indictment found against the appellant at the previous March term of the same court for the larceny of two other horses taken at the same time and place, the property of one Bridges. This is the first error assigned. A plea of former conviction or acquittal is a good plea in bar of another indictment for the same offense; but the pendency of another indictment has never been held to constitute matter in abatement. Commonwealth v. Drew, 3 Cush. 279; Commonwealth v. Murphy, 11 Cush. 472; Commonwealth v. Berry, 5 Gray, 92; Dutton v. The State, 5 And. 533. It is unnecessary to the determination of this appeal to decide whether a plea of autrefois acquit or convict would have been a good plea in bar to either indictment in case judgment had been rendered upon the other. It would seem that the stealing of the property of different persons at the same time and plaee and by the same act may be prosecuted at the pleasure of the government as one offense or as several distinct offenses. Commonwealth v. Sullivan, 104 Mass. 552" court="Mass." date_filed="1870-03-15" href="https://app.midpage.ai/document/commonwealth-v-sullivan-6416097?utm_source=webapp" opinion_id="6416097">104 Mass. 552; State v. Thurston, 2 McMullan, 382.

The second assignment of error is that, a term of court having intervened between the March and December terms, the time in which to bring an indictment for stealing the property of Pearson had expired under Section 2206. (Comp. Laws.) This section reads: “When a person has been held to answer for a public offense, if an indictment be not found against him at the next term of the court at which he is held to answer, the court shall order the prosecution to be dismissed, unless good cause to the contrary be shown.” The record does not show that the defendant was within the provisions of the statute, but, if he were, this fact would have no bearing upon the indictment. The object of this section is the protection of the citizen from imprisonment upon insufficient cause. A dismissal of the indictment would not have barred another prosecution for the same offense. Sec. 2211 (Comp. L.)

Lastly, it is objected that the testimony of Butler, an accomplice, is not corroborated. His testimony is corroborated by Einley, who saw defendant at the “Eifteenmile House,” driving horses from the locality of the larceny at the time testified to by Butler, At Indian Springs, fifteen miles farther on tire road, Parker saw defendant, and identifies some of the stolen horses at that time in his possession. St. Clair testifies that the defendant and Butler stopped in Cave Valley and sold some of the horses that were afterwards identified as stolen; and the arresting officer found the property at a ranch, known as that of the defendant; This testimony tends to connect the defendant with the offense, and this is all the statute requires. State v. Chapman, 6 Nev. 320" court="Nev." date_filed="1871-01-15" href="https://app.midpage.ai/document/state-v-chapman-6668230?utm_source=webapp" opinion_id="6668230">6 Nev. 320; People v. Melvane, 39 Cal. 614" court="Cal." date_filed="1870-07-01" href="https://app.midpage.ai/document/people-v-melvane-5437196?utm_source=webapp" opinion_id="5437196">39 Cal. 614.

The judgment and-order refusing a new trial are affirmed.