Adler v. Sheriff, Clark County

• Decision Date: 15 July 1976
• Docket Number: Nos. 8490--8492,s. 8490--8492
• Citation: 92 Nev. 436,552 P.2d 334
• Parties: Nat ADLER, Appellant, v. SHERIFF, CLARK COUNTY, Nevada, Respondent (two cases). SHERIFF, CLARK COUNTY, Nevada, Appellant, v. Nat ADLER, Respondent.
• Court: Nevada Supreme Court

Page 334

552 P.2d 334

92 Nev. 436

Nat ADLER, Appellant, v. SHERIFF, CLARK COUNTY, Nevada, Respondent (two cases).

SHERIFF, CLARK COUNTY, Nevada, Appellant, v. Nat ADLER, Respondent.

Nos. 8490--8492.

Supreme Court of Nevada.

July 15, 1976.

Rehearing Denied Aug. 31, 1976.

Harry E. Claiborne, James J. Brown, Annette R. Quintana, and John J. Moran, Jr., Las Vegas, for Nat Adler.

Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty., and Frank J. Cremen, Deputy Dist. Atty., Las Vegas, for Sheriff, Clark County.

OPINION

PER CURIAM:

On July 31, 1975, the Clark County grand jury returned three indictments against Nat Adler, public administrator for Clark County. Adler was charged with three separate offenses, all related to his official duties: (1) failure to file a periodic report with the district court concerning the status of estates under his administration (NRS 253.100 and NRS 253.140); (2) attempt to obtain money under false pretenses (NRS 205.380 and NRS 208.070); and (3) failure to file quarterly financial statements with the board of county commissioners setting forth the amount of compensation received in his official capacity as public administrator (NRS 253.090).

Timely petitions for writs of habeas corpus were filed alleging the existence of various infirmities in each of the indictments. The petitions which were directed against charges (1) and (2) set forth above were denied. The petition addressing the infirmities in the indictment charging the third (3) offense was granted. All three of the district court rulings were appealed and have been consolidated for review by this court.

To obviate confusion and to facilitate a lucid discussion of the legal issues here raised, we review each of the indictments separately.

Case No. 8490

In Case No. 8490, Adler appeals from the order of the district court which denied his petition for writ of habeas corpus claiming defects in the indictment charging him with a violation of NRS 253.100 and NRS 253.140.

NRS 253.100, in pertinent part, states:

'Each public administrator shall, on the 1st Monday in January and July, in each year, and at the termination of his official duties, make a verified written report to the district judge having jurisdiction in the premises . . ..'

NRS 253.140 provides:

'For any willful misdemeanor in office any public administrator may be indicted, tried and, if found guilty, fined in any sum not exceeding $2,000 and removed from office, but such fine and removal shall not bar any existing right of civil action upon his official bond.'

Adler assigns as error the refusal of the district court to strike the indictment on the grounds that the allegations therein were insufficient to apprise him of the offenses with which he was charged.

We find these proceedings to be fatally defective. Article 7, Section 4, of the Nevada Constitution, states that provision shall be made by law for the removal from office of any civil officer other than those in this article previously specified for malfeasance or nonfeasance in the performance of his duties. (The officers 'other than those in this article previously specified' were state officers.) Previous to 1909, the statutes now known as NRS 253.100 and NRS 253.140 were the only statutes appropriate to the alleged offense that appears in this case. However, in 1909 the Nevada legislature enacted extensive legislation providing for the removal of public officers. Today those provisions are compiled as follows: NRS 283.300--283.430 (accusations for removal presented by county grand jury); NRS 283.140--283.290 (impeachment); and NRS 283.440, Sections 1--4 (summary removal). Those statutes provide procedures for removal of all local officials, not just public administrators.

The appropriate sections of Chapter 283 supersede or at least merge NRS 253.100 and NRS 253.140 under which the indictment in this case was brought. State v. Economy, 61 Nev. 394, 130 P.2d 264 (1942). On the basis of authorities decided by this court since the enactment of the recited statutes the proceeding here in improper. The laws for removal of public officers are not criminal statutes nor are the proceedings criminal proceedings. Gay v. District Court, 41 Nev. 330, 171 P. 156 (1918); Ex parte Jones and Gregory, 41 Nev. 523, 173 P. 885 (1918); Buckingham v. District Court, 60 Nev. 129, 102 P.2d 632 (1940); Jones v. District Court, 67 Nev. 404, 219 P.2d 1055 (1950).

The writ of habeas corpus should have been granted.

Case No. 8491

1. Adler claims that the indictment charging him with attempt to obtain money under false pretenses is defective on two grounds: (1) it sets forth no material misrepresentation of fact made by appellant; and (2) a claim filed in the course of a judicial proceeding cannot be the subject of a prosecution for false pretenses.

The indictment alleges that appellant submitted a claim against the estate of James H. Gillespie. The bulk of that claim consisted of a charge of $11,340.00 for 'expenses relative to pick up, transfer and storage of personal property belonging to the Estate.' Appellant represented that the property required 1400 square feet of storage space and that a charge for such space at the rate of ten cents per square foot per day was reasonable. The property was stored for the period commencing April 4, 1975, and ending June 23, 1975 (81) days. The indictment states that appellant willfully and feloniously represented that he stored the property in a larger area than was required and that he knowingly and falsely represented that the rate he charged for storage was reasonable.

From the grand jury transcript Adler's conduct indicates probable cause that he attempted, through the district court, to obtain money under false pretenses from the Gillespie estate. The falsity of Adler's representation is squarely alleged in the indictment. In an attempt to have the district court award him a storage fee of $11,340.00 Adler claimed the false fact that 1400 square feet were required to store the personal property of the Gillespie estate and that the rate of ten cents per square foot per day from April 4, 1975, to June 23, 1975, was proper.

A false pretense may be made by implication. Bright v. Sheriff, 90 Nev. 168, 521 P.2d 371 (1974); People v. Staver, 252 P.2d 700 (Cal.App.1953); People v. Marks, 12 Mich.App. 690, 163 N.W.2d 506 (1968); cf. Herrick v. State, 159 Me. 499, 196 A.2d 101 (1963).

The indictment of Adler alleges a designed and deceitful claim which implies his intention to perpetuate a fraud on the Gillespie estate through the district court. NRS 173.075 only requires a plain, concise and definite written statement of the accusatory facts in the indictment and specifically provides that it need not contain other unnecessary matter. A plain and concise statement of Adler's acts constituting the alleged offense is set forth in the indictment and it is (1) definite enough to prevent the prosecutor from changing the theory of the case, and (2) it informs Adler of what accusation he is required to meet. These are the mandates of Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972).

2. We reject Adler's contention that the filing of a false claim in a judicial proceeding cannot constitute a basis for a prosecution for an attempt to obtain money under false pretenses. People v. Wallace 78...