Ex parte Webb

• Decision Date: 04 February 1898
• Docket Number: 1,525.
• Citation: 51 P. 1027,24 Nev. 238
• Parties: Ex parte WEBB.
• Court: Nevada Supreme Court

51 P. 1027

24 Nev. 238

Ex parte WEBB.

No. 1,525.

Supreme Court of Nevada

February 4, 1898

William M. Webb applies for a writ of habeas corpus. Allowed.

David S. Truman, for petitioner.

James R. Judge, Atty. Gen., for respondent.

BONNIFIELD J.

The petitioner applied to this court for a writ of habeas corpus which was granted. It appears that he is held in custody by the sheriff of Humboldt county, by virtue of a commitment issued from a justice's court, based on a judgment of that court, which in effect requires the petitioner to enter into bond to keep the peace, etc., and, in case of failure to give the said bond, that he be imprisoned, in the county jail of said county for the period of 50 days. He alleges by his petition that the illegality of his restraint consists of this, to wit: First, that the jurisdiction of the justice's court has been exceeded; second, that the commitment was issued in a case not allowed by law; third that the judgment upon which the commitment issued is not authorized by any provision of law. The offense charged in the complaint laid before the justice is the common-law offense of forcible entry. Counsel contends, substantially that forcible entry is not a public offense, punishable under the criminal laws of this state; that a statute of this state gives the aggrieved party a civil remedy, and, the legislature having thus acted on the subject of forcible entry and detainer, the civil action has superseded the common-law remedy; and that no such crime as forcible entry is designated by the criminal laws of this state, nor any other punishment permitted nor intended except such as is provided in the act of 1865, concerning forcible entries and unlawful detainers.

We cannot agree with counsel in his contention. Section 151 of the act concerning crimes and punishments provides: "All offenses recognized by the common law, and not herein enumerated, shall be punished in case of felonies, by imprisonment in the state prison for a term not less than one year nor more than five years, and in case of misdemeanors by imprisonment in the county jail for a term not exceeding six months or less than one, or by fine not exceeding five hundred dollars, or by both. ***" Gen. St. § 4697. The crime of forcible entry is not enumerated in said act; but it is a misdemeanor as recognized by the common law. 2 Bish. New Cr. Law, § 492; Harding's Case, 1 Greenl. 22; 4 Bl. Comm. 148. "An...