Ex parte Hedden

• Decision Date: 27 June 1907
• Docket Number: 1,718.
• Citation: 90 P. 737,29 Nev. 352
• Parties: Ex parte HEDDEN.
• Court: Nevada Supreme Court

90 P. 737

29 Nev. 352

Ex parte HEDDEN.

No. 1,718.

Supreme Court of Nevada

June 27, 1907

Application of J. F. Hedden for a writ of habeas corpus. Petitioner discharged from custody.

Campbell Metson & Brown and Geo. S. Green, for petitioner.

C. E Mack, for the State.

SWEENEY J.

A writ of habeas corpus was issued and made returnable before this court upon a petition filed and presented by George S. Green in behalf of J. F. Hedden, alleging that said Hedden was unlawfully imprisoned and restrained of his liberty at Hawthorne, Esmeralda county, Nev., by the sheriff of said county and state. There appears from the petition and return of the sheriff to said writ the following facts and proceedings: On February 26, 1907, the district attorney of Esmeralda county, Nev., issued a subpoena duces tecum directed to the said J. F. Hedden and one A. J. Lyon commanding them to appear and attend before the grand jury of Esmeralda county, Nev., at Hawthorne, in said county and state, on the 19th day of March, 1907, at the hour of 10 a m., there to testify in the case of the State of Nevada v. J. F. Hedden, and also commanding them to produce before the grand jury "the ledger of the Tonopah & Goldfield Railroad Company for the year 1906; and the record of vouchers audited and issued for the year 1906, and copy of Interstate Commerce Report for the years 1905 and 1906, monthly reports made to the board of directors or other officers of the company for each and every month during the years 1905 and 1906, and all other books and papers of the Tonopah & Goldfield Railroad Company, showing the cash on hand or in bank each month during the year 1906, also all other papers showing any and all of the properties of the Tonopah & Goldfield Railroad Company situated in the county of Esmeralda, state of Nevada, during the year 1906." The desired witnesses, Hedden and Lyon, both being residents of a different district than that of the said grand jury, it became necessary under section 4511 of our Compiled Laws, in order to secure their attendance and render effective the subpoena issued by the district attorney, that the district judge should find certain jurisdictional facts. In accordance with this section the district attorney filed an affidavit, on which the court made the following order: "State of Nevada, County of Esmeralda-ss.: It appearing to my satisfaction from the affidavit of A. H. Swallow, district attorney of Esmeralda county, Nevada, that J. F. Hedden and A. J. Lyon are witnesses material to the state in the case of the State of Nevada v. J. F. Hedden, and that the evidence of said A. J. Lyon and J. F. Hedden is material and will be necessary on the part of the state in the investigation of the charge of perjury against J. F. Hedden to be investigated by the grand jury of Esmeralda county, on the 19th day of March, 1907, at the hour of 10 o'clock of said day, it is therefore ordered, adjudged, and decreed that A. J. Lyon and J. F. Hedden be, and they are required to attend as witnesses before the grand jury of Esmeralda county on the 19th day of March, 1907, at the hour of 10 o'clock a.m., at the town of Hawthorne, in the county of Esmeralda, state of Nevada. Frank P. Langan, District Judge. Dated February 26th, 1907." The sheriff of Nye county made the following return on the said subpoena and order of attendance: "Sheriff's Office, County of Nye-ss.: I, J. J. Owen, sheriff of the county of Nye, hereby certify that I served the within subpoena by showing the said within original to each of the following persons named therein, and delivering a copy thereof to each of said persons personally on the 4th day of March, A. D. 1907, in the county of Nye, in Tonopah, Nevada. J. J. Owen, Sheriff, by George B. Swasey, Deputy Sheriff."

On March 25, 1907, the grand jury of Esmeralda county, Nev., submitted to the district court of said county and state the following partial report: "Hawthorne, Nevada, March 25, 1907. To the Hon. F. P. Langan, District Judge of the District Court of the First Judicial District of the State of Nevada, Esmeralda County, Presiding: The grand jury of Esmeralda county hereby submits to the above honorable court a partial report of the proceedings and action of the grand jury in the case of the State of Nevada v. J. F. Hedden, on a charge of perjury. That in investigating said charge one A. J. Lyon was regularly subpoenaed to appear before the grand jury to testify in the above-entitled case, and was ordered and commanded by said subpoena to produce before said grand jury the ledger of the Tonopah & Goldfield Railroad Company for the year 1906, the record of vouchers audited and issued for the year 1906, the record of operating expenses for the year 1906, a copy of the Interstate Commerce Report for the years 1905 and 1906, monthly reports made to the board of directors or other officers of the company for each and every month during the years 1905 and 1906; and all other books and papers of the Tonopah & Goldfield Railroad Company, showing cash on hand and in bank each month during the year 1906, and also all other papers showing any and all of the properties of the Tonopah & Goldfield Railroad Company situated in the county of Esmeralda, state of Nevada, during the year 1906. That in response to said subpoena issued by A. H. Swallow, district attorney of Esmeralda county, state of Nevada, said subpoena being hereby referred to and made part of this report, said A. J. Lyon appeared before the grand jury and was duly sworn by its foreman, A. Summerfield, to tell the truth, the whole truth, and nothing but the truth in the said case of the State of Nevada against J. F. Hedden. That said A. J. Lyon testified that, when said subpoena was served upon him by the sheriff of Nye county, he was the auditor of the Tonopah & Goldfield Railroad Company, and had charge and possession of the foregoing named books of the said company. That some time after the service of said subpoena, namely, on the 18th day of March, 1907, he received a telegram from Geo. S. Green, which telegram is as follows, to wit: 'Carson, Nevada, March 18, 1907. A. J. Lyon, Aud'r T. and G. R. R. Tonopah. Hedden has been requested to bring company's books before grand jury. As general counsel and under instructions from Brock, I order you to turn all books of Tonopah & Goldfield Railroad Company over to Hedden. Geo. S. Green.' That, in obedience to said telegram, he turned over said books to said J. F. Hedden on said 18th day of March, 1907, and the reason that he did not produce the books at this time was because he had surrendered possession of them to Mr. Hedden, and did not know where they were. He further testified that, if the books were in his possession now that, he would produce them before the grand jury. Whereupon the grand jury ordered said A. J. Lyon to produce said books before the grand jury. Mr. Lyon replied that he could not do so, as it was impossible, as he did not have possession of them. J. F. Hedden was then called before the grand jury, and, on being duly sworn, said: 'I am the general superintendent of the Tonopah & Goldfield Railroad Company. I refuse to answer when I received the books from A. J. Lyon, for the reason of my constitutional right to refuse to testify against myself, and for the further reason that the answers might tend to incriminate myself as well as the company.

I am not the secretary of the company, who is the legal custodian of the books, and am only temporary custodian, and I refuse to answer all questions on that ground.' Whereupon the grand jury ordered said J. F. Hedden to return the books to A. J. Lyon. Said J. F. Hedden then refused to turn over said books to said A. J. Lyon, whereupon the grand jury ordered said J. F. Hedden to produce said books before this grand jury. Said J. F. Hedden declined to comply with said order for the reasons stated. It appears to the grand jury, from evidence submitted, that said J. F. Hedden filed with the county assessor of Esmeralda county a statement of the properties owned by the Tonopah & Goldfield Railroad Company situated in Esmeralda county, state of Nevada; that the same was sworn to by said J. F. Hedden as being true and correct; that said affidavits to said statement were made before a notary public by said J. F. Hedden, signed and sworn to by him before said notary public on the 10th and 22d days of September, 1906. That the grand jury is informed, and on such information verily believes, that said J. F. Hedden as superintendent of the Tonopah & Goldfield Railroad Company, situated in Esmeralda county, Nevada, has failed to set forth said property in said tax statements sworn to by him. It is necessary for the grand jury to have said books to complete the investigation of the charge of perjury against said J. F. Hedden, as the grand jury is informed and believes that the information as to what property was omitted from said tax statement by said J. F. Hedden can only be obtained from said books, papers, and documents set forth in said subpoena. We therefore respectfully ask the court to compel said witnesses to produce said books before this grand jury. A. Summerfield, Foreman."

After citing the salient facts and matters as set forth in the partial report of the grand jury and reviewing the legal phases of the situation presented, the court in its opinion premising the order, on account of which petitioner complains he is deprived of his liberty, made the following in the nature of findings of fact: "Mr. Lyon on March 4, 1907 was under a subpoena duces tecum to produce to the grand jury of Esmeralda county on the 19th day of March, 1907, the books and papers which he on said March 4, 1907, had in his possession and which by said subpoena he was required to produce...