Breckenridge v. Lamb

• Decision Date: 08 November 1911
• Docket Number: 2,001.
• Citation: 118 P. 687,34 Nev. 275
• Parties: BRECKENRIDGE v. LAMB, Sheriff.
• Court: Nevada Supreme Court

118 P. 687

34 Nev. 275

BRECKENRIDGE v. LAMB, Sheriff.

No. 2,001.

Supreme Court of Nevada

November 8, 1911

Habeas corpus by J. C. Breckenridge against S. G. Lamb, Sheriff of Humboldt County. Application denied.

James Glynn, for petitioner. Cleveland H. Baker, Atty. Gen., and J R. Judge, Deputy Atty. Gen., for the State.

PER CURIAM.

The petitioner was convicted and sentenced under a complaint containing the following statements: "Peter J. Haynes being duly sworn, complains and says that the crime of keeping and managing a disorderly house and inn has been committed in said county of Humboldt, and accuses the above-named defendant thereof; committed as follows, to wit The said defendant, J. C. Breckenridge, on the 10th day of April, A. D. 1911, or thereabouts, and theretofore, at the county of Humboldt, state of Nevada, did keep and manage the Big Meadow Hotel, a house of public resort in the town of Lovelock, in a disorderly manner, by which the peace comfort, and decency of the immediate neighborhood is and has been disturbed. ***"

It is claimed that this complaint does not state facts sufficient to constitute a cause of action under section 4920 of the Compiled Laws, which is as follows: "Any person in this state who shall keep any disorderly house, or any house of public resort, by which the peace, comfort, or decency of the immediate neighborhood, or of any family thereof, is habitually disturbed, or who shall keep any inn in a disorderly manner, is guilty of a misdemeanor. ***"

It is strongly urged that it was necessary to allege that the peace, comfort, or decency of the neighborhood was habitually disturbed. We need not determine whether the words "habitually disturbed" would have to be included in the allegation in order to make it sufficient, if no attempt were made in the complaint to charge more than the first offense provided by the statute, and the question was before us on demurrer, or on this application for a writ of habeas corpus; for it will be noticed that after passing these words the statute provides that any person "who shall keep any inn in a disorderly manner is guilty of a misdemeanor," and, as the complaint does charge that the accused "did keep and manage the Big Meadow Hotel, a house of public resort, in a disorderly manner," it must be assumed that the hotel is an inn, and that the allegation comes within the words of the statute, making it an offense for any person to keep an inn in a disorderly manner. The definitions and decisions indicating that a hotel is an inn are numerous. 4 Words and Phrases, 3349, 3624, 3625. Fruchey v Eagleson, 15 Ind.App. 88, 43 N.E. 146, 147; City of St. Louis v. Siegrist, 46 Mo. 593, 595; People v Jones, 54 Barb. (N. Y.) 311, 316; Bonner v. Welborn, 7 Ga. 296, 334, 337; Bunn v. Johnson, 77 Mo.App. 596, 599; Comer v. State, 26 Tex.App. 509, 10 S.W. 106, 107; Hall v. State, 4 Har. (Del.) 132, 146; Pinkerton v. Woodward, 33 Cal. 557, 560, 91 Am. Dec. 657; Dickerson v. Rogers, 23 Tenn. (4 Humph.) 179, 183, 40 Am. Dec. 642; Ingalsbee v. Wood, 36 Barb. (N. Y.) 452, 462; Walling v. Potter, 35 Conn. 183, 185; Thomp- son v. Lacy, 3 Barn. & Ald. 283, 287; Carter v. Hobbs, 12 Mich. 52, 56, 83 Am. Dec. 762; Charge to Grand Jury (U. S.) 80 Fed. Cas. 999; Wilkins v. Earle, 26 N.Y. Super. Ct. (3 Rob.) 352, 365; Pullman Palace Car v. Lowe, 28 Neb. 239, 44 N.W. 226, 227, 6 L. R. A. 809, 26 Am. St. Rep. 325; Voss v. Wagner Palace Car Co., 16 Ind.App. 271, 43 N.E. 20, 28, 44 N. E, 1010.

In a complaint on an indictment in a criminal case or a pleading in a civil case, the same specific allegations are not always required to support a judgment that would be exacted if the question were being considered upon demurrer. If the allegations follow substantially the language of the statute, and show in a general way to a person of ordinary understanding the statutory offense intended, they ought to be deemed sufficient. In State v. Raymond, 117 P. 18, we said: "It has been the tendency of courts in recent years to be less technical than formerly in construing indictments, especially so where no demurrer was interposed to the indictment and an opportunity offered to cure the defect prior to trial. In State v. Harrington, 9 Nev. 91, this court, quoting an indictment for murder, said: 'Its form is argumentative, and this would have been a fatal defect upon special demurrer. The objection, however, was not taken, and, the imperfection being of form, and not of substance, is cured by the verdict.' In a case where the sufficiency of the indictment was raised for the first time upon appeal, this court, in the recent case of State v. Hughes, 31 Nev. 270, 102 P. 562, said: 'The indictment, it must be admitted, is far from being a model. Where, however, the sufficiency of the indictment is questioned for the first time upon appeal, it should not be held insufficient to support the judgment, unless it is so defective that by no construction within the reasonable limits of the language used can it be said to charge the offense for which the defendant was convicted --citing State v. Lovelace, 29 Nev. 43, 83 P. 330."

In Howard v. People, 27 Colo. 400, 61 P. 595, it was held that an information for keeping a disorderly house need not specify the particular acts of disorderly conduct complained of, and that it is sufficient if the offense is charged in the language of the statute; and the court cited Leary v. State, 39 Ind. 544; State v. Hayward, 83 Mo. 299; U.S. v. Cruikshank et al., 92 U.S. 542, 23 L.Ed. 588.

In Dimmick v. Tompkins, 194 U.S. 551, 24 S.Ct. 783, 48 L.Ed. 1110, the Supreme Court of the United States said: "It is also objected that the facts charged in either the first or fourth count of the indictment did not constitute any offense under the statute, and that the sentence was therefore without justification. *** It is not, however, necessary in this case to decide the point, for the indictment charged enough to show the general character of the crime, and that it was within the jurisdiction of the court to try and to punish for the offense sought to be set forth in the indictment. If it erroneously held that the indictment was sufficient to charge the offense, the decision was within the jurisdiction of the court to make, and could not be re-examined on habeas corpus. The writ cannot be made to do the office of a writ of error. Even though there were, therefore, a lack of technical precision in the indictment in failing to charge with sufficient certainty and fullness some particular fact, the holding by the trial court that the indictment was sufficient would be simply an error of law, and not one which could be re-examined on habeas corpus. Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787; Re Coy, 127 U.S. 731, 8 S.Ct. 1263, 32 L.Ed. 274; Re Eckart, 166 U.S. 481, 17 S.Ct. 638, 41 L.Ed. 1085."

We do not wish to be understood as holding that the complaint would not have been sufficient upon demurrer. This case is different from one where the facts intended to be charged constituted no offense under the statute or the Constitution. Ex parte Rickey, 31 Nev. 82, 100 P. 134, 135 Am. St. Rep. 651.

The original entry of the judgment ordered that the defendant be imprisoned in the county jail "for a term of thirty and that he be fined in the amount of two hundred dollars." Thereafter, in the defendant's absence, and while he was detained in the county jail, the justice of the peace inserted the word "days" after the word "thirty." It is contended that this was error, but it is not claimed that the judgment as originally pronounced did not provide for 30 days confinement in the county jail. It may be conceded that, if the sentence as originally passed fixed as punishment confinement in the county jail for 30 hours, the court could not later, in the absence of the defendant, change the judgment so as to impose 30 days confinement upon the defendant. The fixing of the punishment and the announcement of the judgment were within the judicial powers of the court; the entry of the judgment was a mere ministerial act, and the omission of the word "days" was merely a clerical mistake, which could be corrected to conform to the sentence rendered. We are unable to see how, under the circumstances of this case, the entry or correction by the justice of the peace of the judgment to conform to the sentence rendered, after its rendition and in the absence of the convicted person, could prejudice him, or deprive him of a substantial right. State v. Depoister, 21 Nev. 107, 25 P. 1000; State v. M. J. Smith, 34 Nev. --, 117 P. 19. A judgment, when pronounced by the court, is as final...