Ex parte Dickson

• Decision Date: 20 June 1913
• Docket Number: 2,069.
• Citation: 133 P. 393,36 Nev. 94
• Parties: EX PARTE DICKSON.
• Court: Nevada Supreme Court

133 P. 393

36 Nev. 94

EX PARTE DICKSON.

No. 2,069.

Supreme Court of Nevada

June 20, 1913

Application of Alexander Dickson for a writ of habeas corpus. Writ granted, and petitioner discharged.

W. H Dial and R. Gilray, both of Winnemucca, for petitioner.

George B. Thatcher, Atty. Gen., E. T. Patrick, Deputy Atty. Gen and J. A. Callahan, Dist. Atty., of Winnemucca, for the State.

McCARRAN J.

This is an original proceeding in habeas corpus. The writ in this case was heretofore issued upon a duly verified petition alleging that petitioner was unlawfully confined and restrained of his liberty by the sheriff of Humboldt county. The petitioner, Alexander Dickson, as appears from his petition, was indicted by the grand jury of Humboldt county and in said indictment was charged with grand larceny. The indictment is as follows: "The defendant, Alexander Dickson, above is accused by the grand jury of the county of Humboldt, state of Nevada, of a felony committed as follows, to wit: That said defendant, Alexander Dickson, on the 6th day of February, A. D. 1913, or thereabouts, and before the finding of this indictment, at the said county of Humboldt, state of Nevada, did then and there willfully, unlawfully, and feloniously steal, take, and carry, lead, drive, and entice away one hog, the personal property of one S. A. Dedman. All of which is contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nevada." Upon being arraigned under the foregoing indictment, the defendant at first entered a plea of not guilty. Later, as appears from the record, the defendant with his attorney appeared in court and was permitted to withdraw his plea of not guilty and enter a plea of guilty of petit larceny. At a later date, to wit, March 14, 1913, the following proceedings took place, as appears from the record: "This being the time heretofore designated by the court for pronouncing judgment and sentence upon defendant herein, the said defendant, Alexander Dickson, being present in court and represented by his counsel W. S. Bonnifield, Jr., Esq., who was also present, the said defendant was informed by the court of the nature of the indictment against him, charging him with having committed the crime of grand larceny, in said county and state on or about the 6th day of February, A. D. 1913, also of the nature of his plea of not guilty thereto, of the fact that on the 13th day of March, A. D. 1913, in open court, he was by permission of the court permitted to withdraw his said plea of not guilty, which plea he did then and there withdraw; of the fact that he was therefore at said last-mentioned time and place permitted to plead guilty of petit larceny, an offense necessarily included within the offense charged in the indictment, which said plea of guilty he did then and there enter; of the nature of said plea of guilty, and to the effect thereof--whereupon the said defendant was asked whether he had any legal cause to show why judgment should not now be pronounced by the court. And no legal cause appearing to the court why judgment should not be pronounced at this time, it is therefore ordered and adjudged, and it is the judgment of this court, that you are guilty of the offense of petit larceny, an offense the commission of which is necessarily included within the offense charged in the indictment, to wit, grand larceny, and it is the sentence of the law pronounced upon you by the court that for that offense, to wit, petit larceny, you be confined in the county jail of Humboldt county, Nev., at Winnemucca, Nev., for the term of five months. The said defendant, Alexander Dickson, was thereupon remanded to the custody of the sheriff of Humboldt county, state of Nevada, for the serving of said sentence." The petitioner, after serving the greater part of the time for which he was sentenced, comes to this court on petition for a writ of hapeas corpus to restore him to his liberty.

Counsel for petitioner contend that the judgment and commitment in this case are void for the reason that the court was without jurisdiction to receive the plea of guilty of petit larceny, under the indictment, or to pass judgment upon the petitioner, by reason of such plea. In general, they contend that the crime of petit larceny is not included within the crime of grand larceny, as set forth in this indictment.

At common law the only subjects of larceny were tangible, movable chattels, something which could be taken into possession and carried away, and which had some, although trifling, intrinsic value.

Section 373 of the Crimes and Punishments Acts of Nevada, is as follows: "Every person who shall feloniously steal, take, and carry away, lead or drive away, the personal goods or property of another, of the value of fifty dollars or more, shall be deemed guilty of grand larceny, and upon conviction thereof, shall be punished by imprisonment in the state prison for any term not less than one year nor more than fourteen years."

Section 374 of the same act is as follows: "Every person who shall steal, take, and carry, lead, or drive away, the personal goods or property of another, under the value of fifty dollars, shall be deemed guilty of petit larceny, and upon conviction thereof, shall be punished by imprisonment in the county jail not more than six months, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment." Rev. Laws, §§ 6638, 6639.

The general distinction between grand and petit larceny depends upon the value of the goods stolen, and it was undoubtedly the intention of the Legislature to fix the degree of crime, and the punishment as well, upon the value of the property stolen, and therefore the felonious stealing or taking, or carrying away property of the value of $50 or more is by this act designated "grand larceny," while petit larceny, punishable only by jail imprisonment, or a limited fine, is feloniously taking the property of another of the value of less than $50.

But an aggravated form of larceny was declared, by the Legislature, punishable without reference to the value of the goods stolen; hence section 375 of the Crimes and Punishments Acts is as follows: "Every person who shall feloniously steal, take and carry, lead, drive or entice away any horse, mare, gelding, colt, cow, bull, steer, calf, mule, jack, jenny, or any one or more head of cattle or horses or any sheep, goat, hog, shoat or pig, not his own property but belonging to some other person; and every person who shall mark or brand, or cause to be marked or branded, or shall alter or deface, or cause to be altered or defaced, a mark or brand upon any horse, mare, gelding, colt, cow, bull, steer, calf, mule, jack, jenny, or any one or more head of cattle or horses, or any sheep, goat, hog, shoat or pig, not his own property but belonging to some other person, with intent thereby to steal the same or to prevent the identification thereof by the true owner or to defraud; and every person who, with intent to defraud, or to appropriate to his own use, shall willfully kill any animal running at large, not his own, whether branded, marked or not; and every person who shall sell or purchase, with intent to defraud, the hide or carcass of any animal the brand or mark on which has been cut out or obliterated, shall be deemed guilty of grand larceny, and upon conviction shall be punished by imprisonment in the state prison for any term not less than one year nor more than fourteen years." Rev. Laws, § 6640.

As will...