Ex parte Stearns
| Decision Date | 20 February 1951 |
| Docket Number | No. 3644,3644 |
| Citation | 227 P.2d 971,68 Nev. 155 |
| Parties | Ex parte STEARNS. |
| Court | Nevada Supreme Court |
Morse & Graves, Las Vegas, George L. Vargas, Reno, for petitioner.
Alan Bible, Atty. Gen., W. T. Mathews, George P. Annand, R. L. McDonald, Deputy Attys. Gen., for respondent.
Petitioner has been indicted by the Grand Jury of Clark County, Nevada, for having fraudulently voted in the general election held November 5, 1946. He was committed and later released on bail. He sought a writ of habeas corpus in the Eighth Judicial District Court, but the writ was denied. Thereupon petitioner submitted himself to the Sheriff of Ormsby County and, upon being detained and imprisoned, he filed this original habeas corpus proceeding. He has been released on bond fixed by this court.
Answering the writ of habeas corpus issued by this court on November 22, 1950, the Sheriff of Ormsby County states that he is holding petitioner under and by virtue of the indictment aforesaid. We have before us a transcript of the proceeding in the Eighth Judicial District Court.
It is contended by petitioner that he is unjustly and unlawfully detained and imprisoned for the reason, inter alia, that there was no legal evidence presented to the Grand Jury to support or justify the indictment, and that the requirement of Section 10822, N.C.L.1929, has not been met. That portion of our statute provides as follows:
Petitioner contends, therefore, that the District Court is without jurisdiction to try him and he claims that he has the right, upon habeas corpus, to present evidence in support of his contention. In the former proceeding for writ of habeas corpus in the district court, petitioner offered to produce, in support of his claim, all the witnesses whose names appear upon the indictment as having testified before the Grand Jury. That offer was refused by the district court on the ground that to grant such a privilege to petitioner would be virtually to permit him to try the case on its merits.
Petitioner repeats his offer to this court, and offers to prove that there was no legal evidence that petitioner ever voted or attempted to vote as charged in the indictment; that the grand jury received no legal evidence indicating that a crime had been committed by petitioner; that no competent evidence was introduced before the grand jury indicating that petitioner was guilty of any offense; and that the face of the indictment affirmatively shows that the offense charged was barred by limitations at the date of the indictment.
There is no doubt that inquiry upon habeas corpus may not be extended to determine the sufficiency of the evidence before the grand jury to warrant a finding of an indictment. However, Section 11390, N.C.L.1929, places a duty upon the court to hear petitioner's allegation and such proof as may be produced against such imprisonment or detention, or in favor of the same, and to 'dispose of such party as the justice of the case may require.'
Section 11391, N.C.L., 1929, provides that the court 'shall have full power and authority to require and compel the attendance of witnesses by process of subpena and attachment and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case.'
In Section 11394, N.C.L.1929, it is provided that:
Those directions from our legislature seem to compel a hearing upon this petition, including the taking of testimony. Such was the conclusion of this court in the Eureka...
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...to sit in review of the investigations of a grand jury as upon the review of a trial when error is alleged...." Ex parte Stearns, 68 Nev. 155, 159, 227 P.2d 971, 973 (1951). We have also held that even though "inadmissible hearsay testimony may have been adduced before the grand jury contra......
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