Ex parte Malley

• Decision Date: 03 June 1927
• Docket Number: 2775.
• Parties: EX PARTE MALLEY.
• Court: Nevada Supreme Court

256 P. 512

50 Nev. 248

EX PARTE MALLEY.

No. 2775.

Supreme Court of Nevada

June 3, 1927

Original habeas corpus by Ed Malley against the Sheriff of Ormsby County for reduction of bail. Petition denied, proceedings dismissed, and petitioner ordered remanded.

McCarran & Mashburn, of Reno, for petitioner.

M. A Diskin, Atty. Gen., and Wm. Forman, Jr., Lester D Summerfield, and N. J. Barry, Deputy Attys. Gen., and John Chartz, Dist. Atty., of Carson City, for respondent.

PER CURIAM.

This is an original proceeding in habeas corpus, instituted for the purpose of procuring an order directing the reduction of a bail bond. There is no question as to whether such a proceeding is the correct one to obtain the end sought.

The petition alleges that on May 20, 1927, the grand jury of Ormsby county, Nev., returned seven indictments against the petitioner and two others. The first indictment, omitting technical formalities, charges that the petitioner, being the duly elected, qualified, and acting treasurer of the state of Nevada, had in his possession as such state treasurer money funds, and securities of the value of $516,000 belonging to the state of Nevada, and that said petitioner did on May 7 1927, feloniously embezzle and convert said property to his own use.

The second indictment charges that petitioner, in conjunction with one George A. Cole and one H. C. Clapp, with a felony, in using a bank to injure, deceive, and defraud, in violation of section 648, Rev. Laws of Nevada 1912, by causing to be issued to petitioner as state treasurer by H. C. Clapp, as cashier of the Carson Valley Bank, a corporation, on December 31, 1926, a cashier's check for $399,257.27, when no money or other consideration had been paid to said bank by the petitioner therefor, with the purpose and intent to cover and conceal the fact that the petitioner had converted and misappropriated securities, money, and funds of the state of Nevada of the value of $399,257.27.

The third indictment charges the same offense as is charged in the second, except that the amount of such cashier's check is alleged to be $67,065.

The fourth indictment is identical with the second and third, except that the amount of the cashier's check is alleged to be $49,999.89.

The fifth indictment charges the petitioner, in conjunction with said Cole and Clapp, with embezzlement in violation of said section 648, Rev. Laws 1912, as follows: That defendant Clapp during all of the years of 1919, 1920, 1921, 1922, 1923, 1924, 1925, 1926, and 1927 to and including April 24, 1927, was cashier of the Carson Valley Bank, a corporation existing under the laws of the state of Nevada, and as such cashier had in his possession, custody, and control money, funds, and securities of the value of $516,822.16, belonging to and the property of said bank; that on or about April 24, 1927, the said Clapp did embezzle, convert, and misappropriate the said moneys, funds, and securities to his own use, with intent to steal the same, and that the petitioner and said Cole did feloniously aid, abet, and encourage said crime.

The sixth indictment charges the petitioner and said Cole and Clapp with forgery, as defined by section 6664, Rev. Laws of Nevada, as follows: That the said Cole was during all of the year 1926 the duly elected, qualified and acting state controller of the state of Nevada; that on or about December 31, 1926, the said Cole drew, made, and delivered to H. C. Clapp, as cashier of the Carson Valley Bank, a certain warrant drawn upon the state treasurer of Nevada, in the amount of $392,700; that the drawing, making, and delivery by said Cole to the said Clapp was a material matter to the public records and accounts of the office of controller of the state of Nevada; that the defendant Cole, on or about the 31st day of December, 1927 (evidently meant for 1926) did then and there fraudulently and feloniously, with intent to injure and defraud the state of Nevada and the people of said state and said bank, fail to make a true, or any, entry in the records and accounts of the office of the controller of the state of Nevada of or concerning said check, although he, the said Cole, well knew it was his duty so to do; that said petitioner and said Clapp did aid, abet, and encourage the said Cole to commit the crime of forgery in manner and form aforesaid.

The petitioner, jointly with George A. Cole and H. C. Clapp, in the seventh indictment, is charged with a felony as defined in section 2824, Rev. Laws, committed as follows: That said Cole, during all of the year 1926, was the duly elected, qualified, and acting controller of the state of Nevada; that on or about December 31, 1926, said Cole, as such controller, willfully, fraudulently, and feloniously did receive to his own use and benefit a controller's warrant of the state of Nevada in the sum of $392,700; that the petitioner and said Clapp did feloniously aid and abet the said Cole in the commission of said offense.

The petitioner further avers that on the 21st day of May, 1927 the petitioner and said Cole and Clapp were arraigned in the First judicial district court of the state of Nevada, on each of said indictments, and that at that time the court fixed the bail bond of petitioner at $100,000 on all of said indictments combined, and ordered that the petitioner be admitted to bail in the sum of $100,000, and further ordered that the petitioner be remanded to the custody of the sheriff of Ormsby county until the petitioner give bail in the sum mentioned, and, upon the failure of the petitioner to give bond in said sum, the sheriff imprisoned the petitioner in...