When two counts in an indictment for murder differ from each other only in stating the manner in which the murder was committed, the question whether the prosecution shall be compelled to elect under which it will proceed is a matter within the discretion of the trial court.
Certain testimony held not to prejndice the defendants, but rather tending to bear in their favor, if at all material.
Confessions are not rendered inadmissible by the fact that the parties are in custody, provided that they are not extorted by inducements or threats.
THE plaintiffs in error were indicted for the murder on January 15, 1895, in the Cherokee Nation in the Indian country, of one William Vandeveer, a white man and not an Indian. There were two counts in the indictment. The first charged the murder to have been committed with a gun, and the second charged it to have been committed "with a certain blunt instrument." The jury found both defendants guilty of murder as charged in the first count, and they were accordingly both sentenced to death.
Submitted on the record, without appearance, by plaintiffs in error
Mr. Assistant Attorney General Whitney for defendants in error submitted on his brief.
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