Groesbeck, Application of, 4471

• Decision Date: 24 October 1961
• Docket Number: No. 4471,4471
• Citation: 365 P.2d 491,77 Nev. 412
• Parties: Application of Robert James GROESBECK For a Writ of Habeas Corpus.
• Court: Nevada Supreme Court

Page 491

365 P.2d 491

77 Nev. 412

Application of Robert James GROESBECK For a Writ of Habeas Corpus.

No. 4471.

Supreme Court of Nevada.

Oct. 24, 1961.

Stewart, Horton & McCune, Reno, for petitioner.

Roger D. Foley, Atty. Gen., William J. Raggio, Dist. Atty., Drake DeLanoy, Chief Deputy Dist. Atty., Herbert F. Ahlswede, Deputy Dist. Atty., Reno, for respondent.

McNAMEE, Justice.

This is an original petition for a writ of habeas corpus.

Petitioner, Sanchez, and Ward were jointly charged with murder. Following a preliminary hearing, they were bound over to the district court for trial. Upon arraignment each entered a plea of not guilty and trial was set for September 11, 1961. On August 4, 1961 Sanchez and Ward were discharged from custody on a writ of habeas corpus. After a second preliminary hearing, Sanchez and Ward were again bound over for trial.

On September 8th, with permission of the district court, an amended information was filed against petitioner, Sanchez, and Ward which was identical in so far as it pertained to petitioner, except that additional witnesses were added to the amended information. Petitioner was arraigned under the amended information, pleaded not guilty thereto, and, over his objection, the trial court vacated the trial date of September 11, 1961. Trial was then set for October 30, 1961, 49 days from September 11th. No objection to this setting appears in the record.

The petition herein alleges that petitioner was ready for trial on September 11th and that the postponement was for the convenience of petitioner's codefendants. The record shows that upon the arraignment following the filing of the amended information, the said codefendants requested further time before entering a plea thereto.

From the foregoing, petitioner requests a writ of habeas corpus for the reason that he was entitled to a speedy trial under NRS 169.160. Furthermore he contends that under NRS 178.495, as amended by Stats.Nev.1961, ch. 373, p. 756, he was entitled to be brought to trial within 60 days after the filing of the information; otherwise, the court 'shall order the * * * information to be dismissed, unless good cause to the contrary is shown.'

This court has held in Polito v. State, 71 Nev. 135, 282 P.2d 801, that in a criminal case a request for continuance is addressed to the sound discretion of the trial court.

The petitioner had made a motion in the court below for discharge upon the ground that he had not been afforded a speedy trial or a trial within 60 days after the filing of the information. Such motion was denied. The proceeding herein in habeas corpus constitutes a collateral attack upon that ruling.

In United States ex rel. Mills v. Ragen, D.C., 77 F.Supp. 15, 20, the court said: 'No one is more aware than a trial judge of the necessity that a trial judge should have wide discretion in granting or denying continuances. The exercise of this discretion should not be easily upset on appeal, and it should be even less easily upset by a collateral attack such as habeas corpus.' Approving these words, we now give consideration to the discretion exercised by the trial court.

As to petitioner the amended information constituted no change with respect to substance. It did however effect the reinstatement of the joint charge of murder against petitioner, Sanchez, and Ward. Also it contained a second count which charged Ward as an accessory after the fact to murder. Clearly as to Sanchez and Ward, the amended information was a change in substance from what was left of the original information following the discharge on habeas corpus of Sanchez and Ward.

The case of In re Newbern, 53 Cal.2d 786, 3 Cal.Rptr. 364, 367, 350 P.2d 116, states: 'It is clear that an amendment of substance to a complaint will carry a corresponding obligation to allow the defense adequate time to prepare an 'amended defense."

Although petitioner may have prepared his defense and was ready for trial on September 11, 1961, it appears that his codefendants were not. NRS 175.205 provides that when two or more defendants are jointly charged with a criminal offense, 'they shall be tried jointly, unless, for good cause shown, the court shall otherwise direct.' If a joint trial would in the opinion of petitioner have prejudiced his substantial...