Ex parte Skaug
| Decision Date | 28 December 1945 |
| Docket Number | 3449. |
| Citation | 164 P.2d 743,63 Nev. 101 |
| Parties | Ex parte SKAugust |
| Court | Nevada Supreme Court |
Original proceeding in the matter of the application of Paul Maynard Skaug for a writ of habeas corpus for release from custody under a death sentence.
Proceeding dismissed and petitioner remanded.
Martin J. Scanlan, of Reno, for petitioner.
Alan Bible, Atty. Gen., George P. Annand and Homer Mooney, Deputy Attys. Gen., and Melvin E. Jepson, Dist. Atty., of Reno, for respondent.
On the 18th day of October, 1944, an information was filed in the Second Judicial District Court, in and for the County of Washoe, charging petitioner with the crime of murder in the first degree. On the 19th day of October, 1944, the time set for arraignment, the petitioner appeared, and upon being informed by the court of his right to counsel before being arraigned, said that he did not think it was any use to appoint an attorney to represent him, but the court, bearing in mind the nature of the charge in the information appointed Martin J. Scanlan, Esq., a member of the Bar of Washoe County, Nev., to represent petitioner, and on motion of the said attorney it was ordered that the arraignment be continued until October 20, 1944, at 11 o'clock a.m.; petitioner, with his said attorney appeared for arraignment on the 20th day of October, 1944 and the arraignment was duly had, whereupon his said attorney requested that November 6, 1944, at 10:30 o'clock a.m be set as the time for petitioner to enter his plea; on the 6th day on November, 1944, petitioner, with his said attorney, appeared in said court at the time appointed for petitioner's plea, and in reponse to the question as to whether petitioner was ready to enter his plea, petitioner remained mute and did not answer; thereupon the said attorney for petitioner stated that his client remained mute and would not plead; the court, therefore, ordered that a plea of not guilty be entered, which was done.
On stipulation of counsel for the respective parties, it was ordered that the trial of petitioner upon such information be set for December 13, 1944, at 10 o'clock a.m. On said last mentioned date the trial of the petitioner commenced at the appointed time, and was concluded on December 15, 1944, and submitted to the jury; on the said 15th day of December, 1944, the jury returned into court with their verdict, in words and figures as follows:
The petitioner then asked that the jury be polled, which was done, and each juror, for himself and not one for the other, answered, 'Yes', in response to the inquiry, 'Is that your verdict?'
The petitioner thereupon waived the statutory time for pronouncing judgment, and consented that judgment might be rendered and sentence imposed on December 16, 1944, at 11:30 a.m. At the said appointed time the petitioner, with his attorney, Martin J. Scanlan, Esq., appeared for the pronouncement of judgment and the imposition of sentence; upon the petitioner having stated that he had no just or legal cause to show why judgment should not be rendered, and stating that he consented that he be sentenced at that time, the court proceeded to pronounce judgment, and impose sentence of death upon the petitioner, as follows:
On said 16th day of December, 1944, a warrant of execution was duly issued by said court, by which the Warden of the State Prison of the State of Nevada was duly ordered to execute said judgment and sentence by the execution of petitioner by the administration to him of lethal gas within the limits of the State Prison of Nevada, in Ormsby County, State of Nevada, some time during the week commencing Sunday, the 11th day of March, 1945, and ending Saturday, the 17th day of March, 1945.
From the judgment of the trial court, the petitioner appealed to this court, whereupon this court made an order suspending the execution of said judgment and sentence until the determination of said appeal; on the 5th day of September, 1945, this court filed its opinion affirming the judgment of the trial court, and directing the district court to make the proper order for the carrying into effect, by the Warden of the State Prison, the judgment rendered. State v. Skaug, 63 Nev. 59, 161 P.2d 708.
On the 1st day of October, 1945, petitioner filed in this court a petition for a rehearing, and on November 5, 1945, the state filed its answer to said petition, and on the 15th day of November, 1945, this court filed its opinion and order denying a rehearing in said case. 63 Nev. 59, 163 P.2d 130.
The trial court, pursuant to the above mentioned directive of this court, on the 10th day of December, 1945, again sentenced the petitioner to death by lethal gas, and a warrant of execution was issued accordingly to the Warden of the Nevada State Prison, authorizing said Warden to execute petitioner on the 4th day of January, 1946, by the administration of lethal gas.
The petitioner, on the 17th day of December, 1945, filed in this court a petition for a writ of habeas corpus, upon the alleged grounds, 'that the trial court, to-wit, the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, was without jurisdiction, or exceeded its jurisdiction, in pronouncing and entering its judgment and sentencing petitioner to death, and said court was without jurisdiction to issue its warrant of execution to the Warden of said prison to execute said judgment and sentence by executing petitioner by lethal gas within the limits of said prison; * * * that there is no statutory law or provision of the Constitution of the State of Nevada which gives a trial court jurisdiction or power to pronounce a judgment and sentence of death upon a defendant who is found guilty of murder in the first degree, and he jury duly impaneled and sworn in said cause fails, or is unable to disagreement, to exercise its discretion and to determine or fix the penalty for said crime of murder in the first degree at death, or confinement in the State Prison for life'; that it was the exclusive function and discretion of the jury to fix the punishment at death, or confinement in the State Prison for life, and that 'the trial court was without jurisdiction to fix the penalty at death, when the jury disagreed as to the punishment, and thereby usurped the exclusive function of the jury to exercise its discretion in determining the penalty.'
The petitioner further asserts that he has been denied a trial by jury, in a capital case, within the contemplation and meaning of Sec. 3, Art. I of the Constitution of the State of Nevada; that he may be deprived of his life without due process of law, in violation of Sec. 8, Art. I, of the Constitution of the State of Nevada; and that the said judgment and sentence of death are in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States, by depriving petitioner of his liberty, and such judgment and sentence, if carried into effect, will deprive the petitioner of his life without due process of law, and that the petitioner is unlawfully imprisoned, detained and restrained of his liberty by Richard Sheehy, Warden of the Nevada State Prison, in Ormsby County, Nevada.
An alternative writ was issued on said 17th day of December, 1945, to which, on December 21, 1945, respondent, as Warden of the State Prison, filed his return, and his response to said petition; on said 21st day of December, 1945, petitioner filed a supplement to his petition, and, on said last mentioned date, the respondent filed his memorandum of points and authorities. On the said 21st day of December, 1945, a full hearing was had, during all of which petitioner, with his attorney, Martin J. Scanlan, Esq., was present, the petitioner's body having been produced in this court by the said Warden, pursuant to the said writ; the original warrant of execution was then produced and exhibited to this court; and the controversial matters involved were then argued by respective counsel, whereupon the matter was submitted to this court for decision.
The contention of the petitioner that he was denied due process of law and that, within constitutional contemplation, he was denied a trial by jury, because the trial judge fixed the penalty without any jurisdiction so to do, or in excess of the trial court's jurisdiction, is based upon the contention that, under the provisions of Section 10068 Nevada Compiled Laws 1929, Vol. 5, the function, right and power to fix the punishment in ca...
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