Garnick v. First Judicial Dist. Court In and For Churchill County

• Decision Date: 03 November 1965
• Docket Number: No. 4992,4992
• Citation: 81 Nev. 531,407 P.2d 163
• Court: Nevada Supreme Court
• Parties: Billie J. GARNICK, Petitioner, v. FIRST JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CHURCHILL and Honorable Richard L. Waters, Jr., Judge, First Judicial District Court of the State of Nevada, in and for the County of Churchill, Respondents.

Page 163

407 P.2d 163

81 Nev. 531

Billie J. GARNICK, Petitioner, v. FIRST JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CHURCHILL and Honorable Richard L. Waters,

Jr., Judge, First Judicial District Court of the State of

Nevada, in and for the County of Churchill, Respondents.

No. 4992.

Supreme Court of Nevada.

Nov. 3, 1965.

Harry E. Claiborne, Las Vegas, Fry & Fry, Reno, for petitioner.

Harvey Dickerson, Atty Gen., and C. B. Tapscott, Deputy Atty. Gen., Carson City, Grant Davis, Churchill County Dist. Atty., Fallon, for respondents.

BADT, Justice.

Petitioner seeks a writ of prohibition to bar her trial before respondents on an amended information charging the issuance of a check against insufficient funds. NRS 205.130--set forth in pertinent part in the margin. ¹

Petitioner asserts that said amended information does not charge an offense against the laws of the State of Nevada. For convenience we here set forth the amended information in which we have noted by including in brackets the parts thereof that were added to the original information:

'That said defendant on the 4th day of September, A.D., 1963, or thereabout, and before the filing of this information, at and within the County of Churchill, State of Nevada, did then and there wilfully and unlawfully, with intent to defraud, for herself or as an officer of a corporation, make and pass a check for the payment of money, drawn upon a bank, when in fact she [and the corporation] had insufficient money or credit with the drawee of such instrument to meet and make payment of the same in full upon its presentation, in the manner following, to-wit: Making a check [on the account of Midwest Livestock Commission Co.] for the sum of Thirteen Thousand twenty-six and 27/100 ($13,026.27) Dollars, drawn upon the Security National Bank of Nevada, Fallon Branch, Fallon, Nevada, when [in fact neither] she [nor the Midwest Livestock Commission Co.] had sufficient money or credit with said bank to make payment of the same.'

To the original information she pleaded not guilty. In Garnick v. Miller, No. 4869, filed July 7, 1965, 81 Nev. ----, 403 P.2d 850, we recited the circumstances under which Mrs. Garnick changed her plea of not guilty to a plea of guilty, although she professed her innocence. We there said: 'Her attorney learned of what had transpired and promptly moved to set aside her guilty plea and reinstate the plea of not guilty. This motion was heard by a different judge, and denied. It was his view that Mrs. Garnick had intelligently waived her right to be represented by counsel when she appeared in court to change her plea from not guilty to guilty. Sentence was imposed, execution thereof suspended, and the defendant Garnick was granted probation. This application for habeas relief followed.'

Supporting our opinion by reference to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, and numerous other citations, both of the federal courts and of this court, we granted the writ of habeas corpus and set aside the judgment of conviction upon the plea of guilty that had been entered.

Her petition for a writ of habeas corpus, granted as above stated, had also protested the sufficiency of the original information, but this court made no decision on that issue.

Petitioner here renews attack on the sufficiency of the original information and contends that the amended information must also be declared void because '[A]s a matter of law, an amended information based on a void information is a legal nullity'; and she asserts that neither the original information nor the amended information states any offense under the laws of this state.

1. The thrust of her attack upon the original information is that it was fatally ambiguous as to NRS 205.130 (set forth in the margin) in that the information failed to specify whether she drew the check for herself or as an officer of a corporation, nor does it specify whose account had insufficient funds--hers, or, if she was drawing on a corporate account the corporation's. Petitioner seems particularly disturbed that the original information did not name the corporation involved. We rule that under the facts of this case there is no merit in the attacks thus made.

In Ex parte Boley, 76 Nev. 138, 350 P.2d 638, this court said:

'Under statutes applicable to informations, the offense charged may be stated in plain, concise language and in such manner as to enable a person of common understanding to know what is intended (NRS 173.090, 173,210, and 173.310, subd. 6); and no information shall be deemed insufficient by reason of any defect in matters of form which shall not tend to the prejudice of the defendant (NRS 173.100, subd. 1). By statute it is also provided that the information need not strictly pursue the words used in a statute to define a public offense, but other words conveying the same meaning may be used. NRS 173.300. Any defect or imperfection in the information as to form shall not affect the judgment thereon, unless it tends to prejudice a substantial right of the defendant. NRS 173.320.

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'Here we do not find any showing of prejudice of a substantial right of either petitioner occasioned by reason of the form of the information, and under the authorities cited a further consideration of the asserted insufficiency of the information is not justified.'

NRS 173.110 provides the law applicable to indictments applies to informations. ² See State v. Switzer, 38 Nev. 108, 145 P. 925 (1914), as to the sufficiency of an indictment for the crime of robbery. In that case this court, working from statutes basically similar to the present, quoted State v. McKiernan, 17 Nev. 224, 30 P. 831 (1882):

'The technical exactness which existed under the rules of the common law has been superseded by statutory provisions, and it is now sufficient if the offense is 'clearly and distinctly set forth in ordinary and concise language * * * in such a manner as to enable a person of common understanding to know what is intended.''

Switzer and McKiernan were both quoted with approval by this court in Ex parte Esden, 55 Nev. 169, 28 P.2d 132 (1934). To like effect is Evershaw v. Moran, 57 Nev. 417, 65 P.2d 877, in which case this court said: 'It is the evident purpose of this statute [NCL (1929) Section 10854, now NRS 173.280] to obviate mistrials where the defendant is in no way misled by such a mistake as appears in this case. That the defendant was not misled appears from his own testimony and from the fact that he makes no contention that he was. He is here relying upon a bare technicality, which the statute above quoted sought to and does overvome.' Cf. Smith v. District Court, 75 Nev. 526, 347 P.2d 526, 79 A.L.R.2d 283; Houser v. District Court, 75 Nev. 465, 345 P.2d 766, 78 A.L.R.2d 1096; in re Waterman, 29 Nev. 288, 89 P. 291, 11 L.R.A.,N.S., 424, in which cases the allegations of the information were held insufficient to constitute an offense. We have no quarrel with any of those cases or the other cases cited by petitioner. We do not find them in point.

NRS 173.240 requires only that the particular facts of an offense charged be stated 'so far as necessary to constitute a complete offense, but the evidence tending to prove the charge need not be stated.' The elements of the crime of issuing a check against insufficient funds are (1) intent to defraud, (2) the making or passing of a check for the payment of money, and (3) without sufficient funds in the drawee institution to cover said check in full upon its presentation. The original information specifically charged each of these elements, and in addition specified the amount of said check, $13,026.27, the date and locale where it was drawn, and the name of the drawee bank. The cases cited supra indicated, a fortiori, that this was sufficient information to apprise defendant of what she was charged with and to enable her properly to prepare her defense and to equip her with a complete answer to any similar subsequent charge with a plea of former jeopardy.

Nor do we find any merit in petitioner's argument that the information as drawn did not advise petitioner whether she was charged with acting either in her individual capacity or as a corporate officer, and that if she was charged with acting as a corporate officer, the information fatally neglected to name the corporation. The crime does not turn on these details. Clearly, under the allegations of the information giving the date of the check, the unusual amount thereof, the intent to defraud, the insufficient funds in the payee bank whose name and location were clearly stated, any further information would have been superfluous.

As we have held the original information sufficient, the point that 'an amended information based on a void information is a legal nullity' falls.

2. To the foregoing we must note the petitioner's failure to object to the information until after her conviction and sentencing. In State v. Hurley, 66 Nev. 350, 210 P.2d 922, this court said:

'We revert to the fact, as disclosed by the record, that the sufficiency of the indictment was not attacked until defendant moved in arrest of judgment after the jury had returned its verdict. * * * the inclination for a rigidly strict construction of the requirements for the contents of the indictment is not so great when thus first raised. [Citing State v. Raymond, 34 Nev. 198, 117 P. 17, and State v. Hughes, 31 Nev. 270, 102 P. 562.]'

See also State v. Lovelace, 29 Nev. 43, 83 P. 330. This is only common sense and in accordance with our statutes, as NRS 174.230 permits a demurrer to an information on any of five separate grounds. Where a defendant waits until judgment before attacking the sufficiency of the information, it is obvious that a different situation is presented.

3. Petitioner next asserts that although an entirely new information would have been in order, an...