State v. Niblett

By the Court, Norcross, C. J.: Appellant was convicted upon the following indictment: "The above-named defendant, William Niblett, is accused by the grand jury of the Fifth Judicial District Court of the State of Nevada, in and for the County of Nye, of a felony, to wit, the crime of disposing of intoxicating liquor to an Indian, who was then and there not a ward of the government of the United States, committed as follows: The said William Niblett in the town of Tonopah, Nye County, Nevada, [248] on the 18th day of February, A. D. 1908, or thereabouts, and before the finding of this indictment, did unlawfully and feloniously sell, barter, give, or dispose of a quantity of intoxicating liquor, viz., whisky, to a certain Indian named Mary Kawich, she, the said Mary Kawich, then and there not being a ward of the government of the United States. All of which is contrary to the form, force, and effect of the statute? etc. From the judgment, and an order denying his motion for a new trial, defendant appeals. The indictment in this case was based upon the provisions of that certain act of the legislature of this state entitled "An act to prohibit the disposal of intoxicating liquors, drugs, or other intoxicating substances to Indians” (Stats. 1903, p. 49, c. 30), section 1 of which act reads as follows: "Section 1. After the passage of this act it shall be unlawful for any person to sell, barter, give or in any manner dispose of any ardent, spirituous or malt liquors, or any intoxicating liquors, liquids, drug or substance, whatsoever, to any Indian within this state, and any such person or persons so unlawfully disposing of such intoxicants, within this state, to an Indian who is not a ward of the government of the United States shall be deemed guilty of a felony, and upon due conviction thereof, before any court of competent jurisdiction, shall be fined in any sum not less than five hundred dollars, nor more than one thousand dollars, or be imprisoned in the state prison of the State of Nevada for a term not less than one year nor more than five years, or by both such fine and imprisonment, in the discretion of the court.” It is contended upon the part of appellant that the evidence was insufficient to support the verdict, in that it failed to establish either the fact that the person Mary Kawich was an Indian, or that she was not a ward of the government of the United States. The evidence showed at the time of the trial that the said Mary Kawich was dead. One Mike Clifford testified that he was a brother of the deceased Mary Kawich; that they had the same mother and father; that she was a Shoshone Indian; that she was not born on, and did not live on, a reservation; that the Shoshones, her tribe, did not have a reservation; that she never received from the government [249] any allotment oí land; that the government did not exercise any superintendence, guardianship, or wardship over her; that she went from place to place in the state as she felt like; that she was born in this state, and lived all her life here. We think this testimony was sufficient to warrant the jury in concluding that the person Mary Kawich was an Indian within the purview of the statute in question. Conceding, without deciding, that it was incumbent upon the state to establish the fact that the said Mary Kawich was not a ward of the government of the United States, we think the evidence in this case, standing as it does without contradiction, was sufficient upon the point in question. (State v. Howard, 33 Wash. 250, 254, 74 Pac. 382.) It is contended that the indictment fails to charge a public offense, because it does not allege that the Indian Mary Kawich was, at the time of the sale and disposal of the-liquor to her by defendant, within this state. It may be conceded that the indictment could have been more specific in this regard, but we think it cannot be said that it is so deficient that a person of common understanding could fail to know what was intended. (Comp. Laws, 4208; State v. Lovelace, 29 Nev. 47.) We think the rule of law governing the interpretation of indictments as declared by this court warrants the reading of the words "in the town of Tonopah, Nye County, Nevada)’ to apply to the entire transaction constituting, or necessary to constitute, the offense. It would require a stretch of the imagination, we think, for one to conclude that possibly the indictment did not mean to allege that the Indian Mary Kawich was not at the place where the other alleged acts occurred. In considering an indictment which, we think, was fully as objectionable as the one at bar, this court, by Fitzgerald, C. J., in State v. Lovelace, supra, said: "The sections of the statute above quoted show the legislative intent was that the courts of the state should give interpretations liberal to sustain, rather than rigid to overthrow, indictments, when, as in this case, substantial rights of defendants are not thereby prejudiced)’ etc. The record contains some additional assignments of error, [250] but we think they are not sufficiently meritorious to require further notice. The judgment is affirmed.