Ex parte Dela

• Citation: 60 P. 217,25 Nev. 346
• Decision Date: 07 March 1900
• Docket Number: 1,577.
• Parties: Ex parte DELA.
• Court: Supreme Court of Nevada

60 P. 217

25 Nev. 346

Ex parte DELA.

No. 1,577.

Supreme Court of Nevada

March 7, 1900

Habeas corpus proceedings by Joseph Dela. Writ granted.

A. J McGowan, for petitioner.

W. D Jones, Atty. Gen., opposed.

MASSEY J.

The facts shown by the petition, the return of the warden, and otherwise, are all conceded. It was shown that the petitioner was indicted by the grand jury of Lincoln county on the 31st day of October, 1895, for the crime of murder committed on the 13th day of October, 1895; that he was tried therefore on the 13th day of November, 1895, in the district court of the Fourth judicial district of the state of Nevada, in and for Lincoln county, by a jury, and convicted of the crime of rape; that on the 16th day of November, 1895, he was sentenced to serve a term of 20 years in the state prison under a judgment based upon said verdict convicting him of the crime of rape. The indictment upon which he was tried charges him with having committed the crime of murder in the perpetration of rape upon one Liza, an Indian girl under the age of 14 years. The commitment set up in the return of the warden, after properly stating the court and cause, recites "This being the time set for passing sentence, the defendant, with his attorney, F. X. Murphy, Esq., together with the district attorney, T. J. Osborne, Esq., are in court. The defendant, Joseph Dela, was then informed by the court of an indictment having been found against him by the grand jury of Lincoln county, state of Nevada, on October 31, A. D. 1895, for the crime of murder, alleged to have been committed on or about the 13th day of October, 1895, at the said Lincoln county, and the state of Nevada; of his arraignment thereon on the 4th day of November, A. D. 1895; of his plea of not guilty as charged in the indictment on the 4th day of November, A. D. 1895, and of said plea being duly entered; of his trial and the verdict of the jury on the 14th day of November, A. D. 1895. The defendant was then asked by the court if he had any legal cause to show why judgment should not be pronounced against him. No legal cause appearing, or being shown to the court why judgment should not be pronounced in this case, the court rendered its judgment, and 'it is ordered, adjudged, and decreed that you, Joseph Dela, be punished for the crime of which you have been convicted in this court, by being incarcerated in the state prison of the state of Nevada for the term of twenty years. Defendant is remanded to the custody of the sheriff."' The clerk of the court certifies that the foregoing is a full, true, and correct copy of the original judgment in the case of the state of Nevada against Joseph Dela. The verdict returned, after reciting the court and cause, is as follows: "We, the jury in the above-entitled action, find the defendant guilty of rape. I. N. Garrison, Foreman." The petitioner claims that under the showing made by the petition, return of the warden, and the record, the court exceeded its jurisdiction in rendering the judgment and imposing the sentence, and it is therefore null and void, and that the process issued thereon does not warrant his detention. Against this claim it is contended that the commitment set up in the return of the warden shows that the petitioner is restrained of his liberty pursuant to a valid judgment of a competent court of criminal jurisdiction, and a valid process issued thereon; that the court had jurisdiction of the person of the petitioner and the subject-matter, namely, the crime of murder, charged in the indictment; and that such showing not only authorizes his detention, but is conclusive, and cannot be attacked or impeached on habeas corpus. Is the commitment valid, and does it show a valid judgment of a court of competent jurisdiction?

By section 450 of our Criminal Procedure (Gen. St. § 4330) it is required that, when judgment upon a conviction is rendered, the clerk shall enter the same in the minutes, stating briefly the offense for which the conviction has been had, and shall within five day annex together and file the following papers, which shall constitute the record of the action: First, a copy of the minutes of any challenge which may have been interposed by the defendant to the panel of the grand jury, or any individual grand juror, and the proceedings thereon; second, the indictment and a copy of the minutes of the plea or demurrer; third, a copy of the minutes of any challenge which may have been interposed to the panel of the trial jury or an individual juror, and the proceedings thereon; fourth, a copy of the minutes of the trial; fifth, a copy of the minutes of the judgment; sixth, the bill of exceptions, if there be one; seventh, the written charges asked of the court, if there be any. By section 451 of the same act it is provided that a certified copy of the entry of the judgment as required in section 450, supra, shall be furnished forthwith to the officer whose duty it is to execute the judgment, and that no other warrant or authority is necessary to justify or require the execution thereof, except when judgment of death is rendered. We have then before us, as a part of the warden's return, a full and complete copy of the judgment. In one essential matter it fails to comply with the requirements of section 450. It does not briefly, or in any manner, state the offense for which the petitioner had been convicted. We cannot know, nor can the warden know, therefrom, the offense for which the prisoner was convicted and committed. It appears from the judgment that the petitioner was convicted of some crime, but it is left to be surmised what the crime is. It might be claimed, as it was claimed on the argument, that the recitals of the commitment at the time of passing sentence, to the effect that the court informed the petitioner of the finding of the indictment against him for murder, of his arraignment, plea, trial, and of the verdict, were sufficient to raise a presumption that he had been convicted of the crime of murder in the second degree. But these recitals are no part of the judgment, and are only in keeping with the requirements of a preceding section of the same act (section 444) as to mere matters of procedure, and not of substantive law, which, if not included in the commitment, would not affect or impair the right of the warden to detain the petitioner. This has been practically so held by this court. In Ex parte Salge, 1 Nev. 453, it was held that a commitment which was a certified copy of the judgment, reciting court and cause, and the sentence defining the punishment, and a statement of the offense for which the punishment is inflicted, was a sufficient warrant for holding a petitioner, and was a sufficient judgment. In California, under a similar statute, the same rule prevails. In the case of In re Ring, 28 Cal. 253, the supreme court of that state held that a certified copy of a judgment in the hands of the warden as a commitment, which failed to state the offense for which the prisoner had been convicted, was not sufficient to warrant his detention, but refused to discharge him because it was shown that the judgment entered in the minutes of the court under the requirements of the statute did contain such statement, and could readily be obtained. The supreme court of that state has in later cases followed the rule laid down in the case cited. Ex parte Raye, 63 Cal. 492; Ex parte Williams, 89 Cal. 421, 26 P. 887. This court has also held a judgment of conviction void in proceedings on habeas corpus, for uncertainty in defining the time for which the defendant was sentenced to prison. Ex parte Roberts, 9 Nev. 44. It therefore appears from the statute and these decisions that there are two essentials to a valid judgment of conviction, and a process of commitment issued thereon, namely, the statement defining the punishment, and the statement of the offense for which the punishment is inflicted. We are unable to see why a judgment or commitment should be held insufficient for the omission of one essential, and sufficient in case of the omission of the other.

Are the recitals of the commitment, showing a judgment of a court having jurisdiction of the offense charged and of the person of the petitioner, conclusive of...