Ex parte Tranmer

• Decision Date: 09 September 1912
• Docket Number: 2,010.
• Parties: EX PARTE TRANMER.
• Court: Nevada Supreme Court

126 P. 337

35 Nev. 56

EX PARTE TRANMER.

No. 2,010.

Supreme Court of Nevada

September 9, 1912

Application for writ of habeas corpus by J. Frank Tranmer for his discharge from custody of the sheriff of the county pending a trial. Denied and dismissed.

Parker & Frame, for petitioner.

Cleveland H. Baker, Atty. Gen., for respondent.

SWEENEY C.J.

The petitioner, together with one Nimrod Urie, were indicted by the grand jury of Humboldt county, Nev., for the commission of a double murder, committed at Imlay, in said county wherein Eugene Quilici and Marie Quilici were robbed and murdered. The defendant, Urie, upon motion was granted a separate trial, and upon such trial, held at Winnemucca Humboldt county, Nev., was tried and found guilty of murder in the first degree, and sentenced by the court to be hanged by the neck until he be dead. An appeal from this judgment is pending and undetermined at the present time in this court. The petitioner herein was granted a change of venue from Humboldt county to Washoe county, and upon the trial was convicted of murder in the first degree, and for punishment was ordered confined in the penitentiary for life.

The petitioner was indicted under two indictments for the crime of murder: Indictment No. 1, for the murder of Eugene Quilici; and indictment No. 2, for the murder of Marie Quilici. After conviction upon indictment No. 1, the petitioner was taken to the Nevada state prison and entered upon the serving of his life sentence, and three months later, by an order of the judge of the Sixth judicial district court, he was removed from the state prison and placed in the custody of the sheriff of Washoe county, and upon being brought into court for the purpose of having a day set to try him upon indictment No. 2, for the murder of Marie Quilici, petitioner obtained a writ of habeas corpus from this court, setting forth that he was illegally detained of his liberty, chiefly upon the two grounds, to wit: First that under a judgment and life sentence now in force, under indictment No. 1, the only lawful place of confinement of petitioner is in the state prison under said judgment and sentence, and that proceedings on indictment No. 2 are thereby suspended; second, that, in the event this court should hold that the Second judicial district court should have the right to the custody of the person of petitioner under indictment No. 2, the petitioner has not been accorded a speedy trial as by law required, and that under the facts as agreed upon in the stipulation following he must be discharged:

"It is hereby stipulated and agreed by and between the attorneys for the state of Nevada, and the attorneys for the petitioner, as follows:

That on the ______ day of March, 1911, the grand jury, in and for Humboldt county, Nevada, returned two indictments against the petitioner, J. Frank Tranmer, and one Nimrod Urie, which said indictments were numbered 1 and 2, respectively.

That indictment No. 1 was for the killing of Eugene Quilici, and No. 2 was for the killing of Marie Quilici. Both of said crimes are alleged to have occurred at the same time and place.

That at the time of the finding and return of the two indictments against your petitioner, the grand jury, in and for Humboldt county, Nevada, returned certain other indictments as follows: State of Nevada against Watson, for burglary; State of Nevada against Barnum, for forgery; State of Nevada against Wilson, for gambling; State of Nevada against Morrison, for gambling; State of Nevada against Friend, for embezzlement.

That after the return of the indictments against the petitioner, and on the 9th day of March, 1911, the petitioner entered his plea of not guilty to both said indictments.

That at the time of the return of the said indictments against your petitioner, and at the time of his entering his plea of not guilty to the same, your petitioner was in the custody of the sheriff of Humboldt county, Nevada.

That after the return of said indictments numbered 1 and 2, against your petitioner, and at the May term of the district court of the Sixth judicial district, in and for Humboldt county, Nevada, indictment No. 1 against the petitioner was set down for trial, and afterward, and on the ______ day of May, 1911, was sent to Washoe county, Nevada, by a change of venue.

That afterward, and on the ______ day of July, 1911, this petitioner was placed on trial under said indictment No. 1, and was found guilty of murder in the first degree, and his punishment fixed at life imprisonment in the penitentiary of the state of Nevada.

That thereafter and on the 14th day of July, 1911, judgment and sentence was pronounced on said indictment No. 1 against this petitioner, and a commitment was issued out of the Second judicial district court in and for Washoe county, Nevada, sentencing and committing him to imprisonment for life in the state penitentiary, and directing the sheriff of Washoe county to deliver the petitioner to the Warden of the state penitentiary.

That in pursuance of said judgment and sentence and commitment petitioner was immediately thereafter, and on the 15th day of July, 1911, taken to Carson City, Nevada, and delivered to the warden of the state penitentiary, in whose custody the petitioner remained under said commitment and under the sentence imposed by the Second judicial district court of Washoe county, Nevada, under said indictment No. 1.

That the petitioner was confined and restrained by the said warden of the penitentiary under said commitment and sentence until about the 29th day of October, 1911, when the petitioner was taken from the custody of the warden of the penitentiary by the sheriff of Humboldt county, Nevada, and taken to Winnemucca, in said Humboldt county, Nevada.

That on the 10th day of March, 1911, in the Sixth judicial district court in and for Humboldt county, state of Nevada, the following order was made in the case of the State of Nevada against J. Frank Tranmer, under indictment No. 2: 'The defendants, the counsel, and the district attorney being present in court, it is ordered that this cause be continued for further setting.'

That there was no other or further order made in the case under indictment No. 2, and no further steps taken by the state to bring this petitioner to trial under indictment No. 2, until the 27th day of October, 1911, when an order was made and entered by the judge of the Sixth judicial district court, in and for Humboldt county, Nevada, to bring the petitioner before the said district court of Humboldt county, Nevada, for the purpose of having the case under indictment No. 2 set for trial; said indictment No. 2 being the same indictment No. 2 that was found and returned by the grand jury of Humboldt county, Nevada, on the ______ day of March, 1911, aforesaid, and said order being the order set out by the return of the sheriff of Washoe county, Nevada, herein.

That afterward, and on the 1st day of November, 1911, a severance was ordered in the case under indictment No. 2, and the case against your petitioner was set for trial on November 25, 1911.

That afterward, and on November 3, 1911, a change of venue was granted to Washoe county, Nevada, and the petitioner was delivered to the sheriff of Washoe county, Nevada.

That all of the indictments returned by the grand jury of Humboldt county, Nevada, on the 9th day of March, 1911, were tried and disposed of at the May term of the district court of the Sixth judicial district, excepting indictments Nos. 1 and 2 against the petitioner.

That at the said May term of the district court of Humboldt county, Nevada, a jury was in attendance and the witnesses for the state could have been procured for a trial under indictment No. 2, by the use of reasonable diligence.

That the petitioner was not brought to trial under the said indictment No. 2, the same being the indictment that petitioner is now being prosecuted under, for the reason that the district attorney had elected to bring the petitioner to trial under indictment No. 1, because the said indictment No. 1 was in his opinion the strongest case against the petitioner, and that the said district attorney expected a conviction under indictment No. 1, and that the death penalty would be inflicted, and that for that reason it would not be necessary to try indictment No. 2, and prosecute the petitioner thereunder.

That at the time of the trial and conviction and sentence of the petitioner under indictment No. 1 in the Second judicial district court of Washoe county, Nevada, indictment No. 2 had been found and was standing against the petitioner in the Sixth judicial district court in and for Humboldt county, Nevada.

That by the trial of the other indictments returned by the grand jury of Humboldt county, Nevada, on the 9th day of March, 1911, this indictment No. 2, that the petitioner is now being prosecuted under, was displaced and set aside on the calendar of the clerk of the Sixth judicial district court, and the rest of said indictments tried in its place and stead, without any affidavits being filed, upon two days' notice, or without any application being made by either party, and without any order of the district court having been made therefor, as required by section 4281 of Cutting's Compiled Laws of the State of Nevada, and that said indictment No. 2 was so displaced and set aside, and the rest of said indictments heard and tried in its place and stead, without any cause having been shown, or without any cause existing, for the so doing whatever, and not upon the application of the petitioner.

That the judgment and sentence imposed by the second judicial district court of the state of Nevada on the 14th day of July, 1911, whereby the said petitioner...