Ex parte Murray

• Decision Date: 13 May 1916
• Docket Number: 2229.
• Citation: 157 P. 647,39 Nev. 351
• Parties: EX PARTE MURRAY.
• Court: Nevada Supreme Court

157 P. 647

39 Nev. 351

EX PARTE MURRAY.

No. 2229.

Supreme Court of Nevada

May 13, 1916

In the matter of the application of John Murray for a writ of habeas corpus. Proceeding dismissed.

William Forman, of Tonopah, for petitioner.

J. A Sanders, of Tonopah, for respondent.

COLEMAN J.

This is an original proceeding in habeas corpus. A complaint was filed against the petitioner in the justice court of Tonopah township, in words and figures as follows:

"Personally appeared before me, this 1st day of March, A. D. 1916, John Artoocovich, of Tonopah, in the county of Nye, state of Nevada, who, upon information and belief, complains and says that John Murray, of Tonopah, on or about the 10th day of November, A. D. 1915, and before the filing of this complaint, in the town of Tonopah, in said county of Nye state of Nevada, did then and there unlawfully take and receive of and from John Artoocovich $10 lawful money of the United States, while employed as a laborer at the Tonopah Extension Mining Company, a corporation, as the price and condition of the continuance in employment of said Artoocovich at said mine as laborer therein, he, the said John Murray, being then and there foreman of said mining company charged and intrusted with the continuance of the said John Artoocovich in the employment of said mining company, all of which is contrary to the form force, and effect of the statute in such cases made and provided, and against the peace and dignity of the people of the state of Nevada. Said complainant therefore prays that a warrant may be issued for the arrest of the said John Murray, and that he may be dealt with according to law.

John Artoocovich.

Subscribed and sworn to before me this 1st day of March, A. D. 1916. H. Dunseath,

Justice of the Peace of said Township."

Petitioner was arrested and put on trial in the justice court upon said complaint, before a jury, and upon conviction was fined in the sum of $300, and sentenced to serve six months in jail. From this judgment he appealed to the district court, where he was tried before a jury and found guilty; and a motion for a new trial, as well as a motion in arrest of judgment, having been denied, judgment was passed by the court, adjudging that petitioner pay a fine of $300 and serve six months in the county jail.

It is contended by petitioner that neither the justice court nor the district court acquired jurisdiction to hear and determine the charges against him, for the reason that the complaint is not in compliance with the Fourth Amendment to the Constitution of the United States, or section 18, art. 1, of the Constitution of the state of Nevada, or with section 7472 of the Revised Laws of Nevada, in that it is made upon information and belief, instead of upon the positive knowledge of complainant. Counsel for petitioner relies with great confidence upon the case of Salter v. State, 2 Okl. Cr. 464, 102 P. 719, 25 L. R. A. (N. S.) 60, 139 Am. St. Rep. 935, to sustain his contention. While it is true that that case does sustain the contention of counsel, the decision was reversed in Ex parte Talley, 4 Okl. Cr. 398, 112 P. 36, 31 L. R. A. (N. S.) 805, where the authorities were reviewed at length. The court said:

"The requirement being that the verification shall be in positive terms, it follows that a verification on information and belief, as were many of those in the cases cited above, so far as a compliance with the law is concerned, is the same as and no better than no verification at all, and leaves the information as vulnerable as though no pretense at verifying it had been made; and therefore, if the information be not void in the first-mentioned case, it is not void in the latter. Also, if the defectiveness of a verification or the total want of one is waived by pleading to the information without moving to quash or set the same aside, then certainly the information cannot be void on that account, nor the court without jurisdiction; for all agree that jurisdictional matters may be raised even for the first time in the appellate court. And every time a court has sustained a conviction based upon an information not verified or defectively verified, it has thereby said that such defect was not jurisdictional. The record before us does not disclose whether the petitioner raised this question below, and, for the purposes of this case, whether he did so or not is immaterial, for if he filed a motion to quash the information and the court overruled the same, the court committed error; but it was only error, and the court had as much jurisdiction after committing the error as it had before. The petitioner's proper remedy was by appeal or writ of error. In that way only could the error be corrected. We are aware that in Salter v. State, 2 Okl. Cr.

464, 102 P. 719 [25 L. R. A. (N. S.) 60, 139 Am. St. Rep. 935], this court held that such a defect might be raised by a demurrer or an objection to the introducing of evidence, and that an information, verified only on information and belief, is insufficient to support a judgment of conviction. But upon further consideration we now hold that such an information will support a conviction; that the proper and only manner to raise the question of verification is by motion to quash or set aside the information on that ground, and that if no such motion be filed and presented before pleading to the information, the defect is waived. And Salter v. State, supra, in so far, as it is in conflict with this holding, is hereby overruled."

In Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753, it is said:

"Objections are made as to the want of proper arrest and preliminary examination of the accused before a magistrate, and that the information was not verified by oath or affidavit. If tenable at all, no objections of this character appear to have been made in due season in the court of first instance. Objections of this sort must be taken before pleading the general issue by some proper motion or plea in order to be available to the accused. 1 Bish. Crim. Proc. § 730."

The objection that the justice of the peace did not acquire jurisdiction for the reasons stated was made for the first time after the case had been appealed to the district court but it nowhere affirmatively appears that that objection was made prior to arraignment upon the complaint and pleading...