In re Hironymous

• Citation: 147 P. 453,38 Nev. 194
• Decision Date: 27 March 1915
• Docket Number: 2167.
• Parties: EX PARTE HIRONYMOUS.
• Court: Supreme Court of Nevada

147 P. 453

38 Nev. 194

EX PARTE HIRONYMOUS.

No. 2167.

Supreme Court of Nevada

March 27, 1915

Original application by Wesley Hironymous for a writ of habeas corpus. Proceeding dismissed.

Platt & Sanford, of Carson City, for petitioner.

Geo. B Thatcher, Atty. Gen., and J. E. Campbell, Dist. Atty., of Yerington, for respondent.

NORCROSS C.J.

This is an original proceeding in habeas corpus. It appears from the return of the sheriff of Lyon county, who is charged in the petition with the unlawful detention of the petitioner, that on the 9th day of October, 1914, in the district court in and for Lyon county, the grand jury returned an indictment against petitioner; that thereafter and on the same day, upon motion of the district attorney, the said indictment was ordered dismissed, upon the ground that a clerical error appeared therein, and it was further ordered that the grand jury reconvene at the hour of 11 o'clock a. m. of said day; that thereafter and on the same day the grand jury returned a second indictment against petitioner, which was substantially in the same form as the first indictment except that in the second indictment the name of the petitioner was inserted in a blank space where it evidently had been omitted through inadvertence in the preparation of the first indictment; that thereafter, and on the 10th day of October, 1914, petitioner interposed a plea of not guilty to the said indictment; that thereafter, and on the 15th day of December, 1914, the case coming on for trial in accordance with the previous setting, and before the beginning of the trial, counsel for defendant, petitioner herein, moved the court to withdraw the plea of defendant in order to permit counsel to both demur to the indictment and to interpose a motion to quash the same. The certified copy of the minutes of the court filed by petitioner do not show that any order was entered permitting the plea to be withdrawn, but the minutes do show that counsel proceeded with the argument of the demurrer and the motion to quash, and that thereafter and on the same day the court ordered that the demurrer be overruled and the motion to quash denied, to which orders counsel for defendant were given the benefit of an exception. Upon the following day it appears from the minutes of the court that counsel for the defendant were permitted to resume further argument upon the motion to quash, and the same was thereafter taken under advisement until 1 o'clock p. m of that day; thereafter and on the same day, and before any further order was made by the court upon the motion to quash, the district attorney made the following statement and motion:

"After having examined the records of the stenographer taken at the time that this second indictment was returned by the grand jury, and prior thereto, I am convinced that the order for resubmitting the same to the grand jury after the dismissal of the first indictment was not in fact made, and that the resubmission was an informal submission, and sufficiently informal that it didn't comply with the letter of the statute, although the record shows the reconvening of the grand jury, and, not desiring to carry this case into the Supreme Court, and through interminable litigation, I ask at this time, and I therefore move the court to dismiss the present indictment against this defendant, Wesley Hironymous, and enter its order resubmitting the same to the grand jury of Lyon county, next to be convened"

--to which statement and motion the minutes of the court show that counsel for defendant replied:

"We do not desire at this time to interpose any objection to your honor quashing this present indictment, but for the purpose of preserving the record, we desire to interpose an objection to the court resubmitting the case again for the consideration of the grand jury. The ground of objection being that the present order of resubmission, if made, must be predicated upon a proper basis of dismissal of the original indictment, and order a resubmission upon that, and the fact that the second indictment was brought without an order of resubmission after the dismissal of the first indictment destroys the foundation for an order of resubmission at the present time."

The court thereupon "ordered that the case be dismissed, upon motion of the district attorney, and the court now orders that the matter be resubmitted to the present or a future grand jury to be drawn in Lyon county." Thereafter, and on the 13th day of January, 1915, the following order was entered:

"It appearing to the court that the defendant has been held to answer in the above-entitled case, * * * and that the charge pending against him as yet remains undisposed of, it is ordered that the district attorney proceed at once to make a full examination of said charge, and take such steps towards prosecution, either by indictment or by information, as he may deem advisable in the premises, and that any previous order of this court, in so far as it conflicts with this order, be and the same is hereby vacated and set aside."

That thereafter, and on the 2d day of February, 1915, an information was filed with the clerk of the district court by J. E. Campbell, Esq., district attorney of Lyon county, which information was substantially in the form of the indictment previously dismissed. Thereafter, and on the 4th day of February, 1915, defendant, petitioner herein, was arraigned upon said information. Objection was thereupon made by counsel for defendant to the order allowing the district attorney to proceed by indictment or information, that the same was made in the absence of the defendant, to the form and substance of the order, and to the power of the court to make the same, which objections being overruled, defendant waived time in which to plead and entered a plea of not guilty.

The principal contention of counsel for petitioner is that the court, at the time of dismissing the first indictment, having made no specific order of resubmission to the same or another grand jury, "such dismissal operated as a statutory bar, and * * * that the defendant was at once placed in statutory jeopardy, and that he was just as free a man as if never indicted for any offense." It is further contended that the order of the court made on the 13th day of January was invalid and conferred no power on the district attorney to proceed by information, in that it was an attempt to confer upon the district attorney the power to exercise his discretion as to whether he would proceed either by indictment or by information, or at all. In the language of counsel for petitioner, it is their contention,

"That the court should have directed the district attorney to proceed by way of indictment or information against this defendant; that, the court having said to the district attorney: 'You may exercise your discretion; either proceed or do not, or if you do, proceed by way of information or indictment'--that of itself is sufficient to deprive the district attorney of the right to proceed anew against this defendant, and the order itself appears as a bar."

Counsel for petitioner have cited a number of California cases which they contend are conclusive upon the question that failure to order a resubmission of a case at the time of the dismissal of an indictment operates as a bar to further proceedings and entitled defendant to absolute discharge, citing Ex parte Williams, 116 Cal. 512, 48 P. 499; Ex parte Hayter, 16 Cal.App. 211, 116 P. 370; Ex parte Hughes, 160 Cal. 388, 117 P. 437; People v. Nogiri, 142 Cal. 596, 76 P. 490; and People v. Jordan, 63 Cal. 219. An examination of all of the authorities cited and relied upon by counsel for petitioner discloses that they deal only with the question of the failure of the court to make such an order of resubmission upon the sustaining of a demurrer to an indictment. Our statute, like the California statute, relating to a demurrer to an indictment, provides:

"If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to be submitted to the same or another grand jury." Rev. Laws, § 7101.

The only other provision of our statute where it might be contended from the language used that failure to make an order of resubmission would operate as a bar relates to the dismissal of a charge by a grand jury where a defendant has been held...