Petition of DuBois, 5611

• Decision Date: 27 September 1968
• Docket Number: No. 5611,5611
• Citation: 84 Nev. 562,445 P.2d 354
• Parties: Petition of Stuart W. DuBOIS for Habeas Corpus.
• Court: Nevada Supreme Court

Page 354

445 P.2d 354

84 Nev. 562

Petition of Stuart W. DuBOIS for Habeas Corpus.

No. 5611.

Supreme Court of Nevada.

Sept. 27, 1968.

Theodore H. Stokes, Carson City, for petitioner.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., and Virgil D. Dutt, Deputy Dist. Atty., Reno, for respondent.

OPINION

MOWBRAY, Justice.

Petitioner DuBois, who was found guilty by a jury in Washoe County of violation of NRS 202.360 (possession by an ex-felon of firearm capable of being concealed) and sentenced to the Nevada State Prison, where he is presently confined, seeks the issuance from this court of a writ of habeas corpus ordering his release from confinement on the grounds that his imprisonment is illegal and in derogation of his constitutional rights as provided in the Constitutions of the United States and the State of Nevada.

On March 23, 1966, the petitioner fired a .22-caliber pistol in the men's rest room of Harrah's Club in Reno. He was immediately apprehended by a security guard and taken into custody by the Reno police. Thereafter, he was charged in the Reno Municipal Court with three misdemeanors: (1) carrying a concealed weapon, (2) discharging a firearm in a public place, and (3) gross intoxication. He entered a plea of guilty to each charge and was sentenced by the Municipal Judge on March 24, 1966. On April 1, 1966, the District Attorney of Washoe County charged the petitioner with a felony, namely, a violation of NRS 202.360 (possession by an ex-felon of firearm capable of being concealed). Petitioner was tried before a jury, found guilty, and sentenced to the Nevada State Prison for a term of not less than 1 nor more than 5 years. However, the execution of the sentence was suspended and the petitioner placed on probation for a period of 5 years. One of the express conditions of probation imposed by the trial judge and accepted by the petitioner was that the petitioner would join Alcoholics Anonymous and refrain from intoxicating beverages, which appeared to be a principal cause of his difficulties.

One month later petitioner was found in a grossly intoxicated condition, arrested by the Reno police, and carried to the Reno jail. His probation was revoked, and petitioner is presently serving his term in the Nevada State Prison.

1. Petitioner asserts that his constitutional rights guaranteed under Article 1, Section 8, of the Constitution of the State of Nevada ¹ and the Fifth Amendment to the Constitution of the United States ² were violated in that he was twice put in jeopardy because he was first convicted under Reno Municipal Code Section 11.12.040 and later convicted under NRS 202.360 of 'the same offense' arising from the same conduct. Petitioner argues that the same evidence required to convict him of the violation of the Reno Municipal Code section would be sufficient to convict him of a violation of NRS 202.360. A reading of the code provision and the statute will illustrate the fallacy in petitioner's argument. The pertinent portion of Section 11.12.040 of the Reno Municipal Code provides:

'(a) It shall be unlawful for any person within the city limits to carry or wear a firearm in any casino, bar, bank, cabaret, theater, park, school or playground.

'(b) It shall further be unlawful for any person, except as provided above (,) to carry or wear a loaded firearm upon the public streets or in a public place within the city without first obtaining permission from the chief of police.'

Under part (a) it must be shown that the accused carried or wore a firearm in a particular location within the city limits. Under (b) it must be shown that the firearm was loaded while being worn in a public place within the city, without the permission of the chief of police.

NRS 202.360 provides, in relevant part:

'2. * * * (N)o person who has been convicted of a felony in the State of Nevada, or in any one of the states of the United States of America, or in any political subdivision thereof, or of a felony in violation of the laws of the United States of America, shall own or have in his possession or under his custody or control any pistol, revolver or other firearm capable of being concealed upon the person.'

This statute requires not only the proof of a prior felony conviction, but also the proof of a firearm capable of being concealed upon the person.

These are two very different offenses with different elements and different purposes. Conviction under one would not necessarily lead to conviction under the other. See State v. Feinzilber, 76 Nev. 142, 350 P.2d 399 (1960). To constitute former jeopardy, the earlier offense must have been one necessarily included in the later. State v. Holm, 55 Nev. 468, 37 P.2d 821 (1935). Conviction under the Municipal Code cannot be considered a lesser offense necessarily included in the later state violation.

The standard applied in such cases was stated by this court in Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594 (1966): 'We adhere to the rule that to determine whether an offense is necessarily included in the offense charged, the test is whether the offense charged cannot be committed without committing the lesser offense.'

An ex-felon can be convicted under NRS 202.360 without ever carrying or wearing a firearm in any of the public places mentioned in the Reno Municipal Code. Mere ownership or control of a concealable weapon would be sufficient. Petitioner's argument is without merit. ³

2. Petitioner next asserts a violation of his constitutional rights under the Sixth Amendment to the Constitution of the United States ⁴ and Article 1, Section 8, of the Constitution of the State of Nevada, supra, in that he was denied the right to counsel when the trial judge revoked his probation.

The trial judge appointed Allan Shamberger, Esq., of the Washoe County Bar, to represent the defendant at the State's expense. Mr. Shamberger ably represented the petitioner at his arraignment in district court, during his preliminary hearing, the jury trial, and sentencing. The petitioner, however, elected to defend himself at the commencement of the trial, as evidenced by his remarks appearing in the transcript of the proceedings.

'THE COURT: All right. As you know, Mr. Shamberger, the defendant or you may make the opening statement at this time on behalf of the defendant. I have indicated in preliminary matters that I would permit the defendant--which is his right--to act as his own attorney, and he has said that he wants to be his attorney in this case, as I understand it. Is that right?

'THE DEFENDANT: Yes, your Honor.

'THE COURT: All right. You go ahead. But I am going to hold you accountable to the strict rules of procedure, as I would any other lawyer. All right, go ahead.

'THE DEFENDANT: Thank you. Ladies and gentlemen of the jury: First, I would like to say that I have not chosen to defend myself in this matter due to any delusions that I might have as to my ability, but it is a custom to be appointed an attorney to defend you. Mine has been practicing law for sixteen months, divorces--

'THE COURT: Now, just a minute, just a minute. We are not going to let you make an argument at this time. You tell us what you expect to prove.

The petitioner did conduct his own defense, assisted whenever permitted by Mr. Shamberger. The jury found him guilty. The trial judge ordered a presentencing investigation and placed the petitioner on probation for 5 years. The following appears in the transcript of proceedings after the defendant was sentenced and when the trial judge granted him probation:

'THE COURT: Do you have anything else to say?

'THE DEFENDANT: No, your Honor.

'THE COURT: Well, I must admit that I have been concerned about your case, even though perhaps you didn't think that I was, ever since the case went to trial, and ever since the jury returned a verdict of guilty, which they, of course, were entitled to do, and which they almost had to do under the circumstances, because there is no question but what you are an ex-felon and that you were in possession of a firearm, and that's violation of the felony law of the State of Nevada. So, the jury promptly came in with a verdict of guilty, which is, of course, that they should have done in the first instance.

'I suppose, though, the easiest thing for me to have done at that particular time, particularly after you put us to a lot of trouble, was to deny your request for probation at that particular time. But I guess that I--I don't say that I felt sorry for you, but I did feel that there was something about your make-up, something about you that maybe you deserved some additional consideration, so that is one of the reasons that I granted the request that the matter be referred to the Probation Officer. As I say, I don't know that you deserved any particular assistance or help from any of us around here. You have got the full treatment, so far as the law is concerned, so far as being informed against, and then having your case sent back to the Justice's Court for a preliminary hearing. Then you got sent back here, and you were tried, and you had a good lawyer, and you gave him a bad time, and you gave me a bad time. Incidentally, I didn't think that you were a very good lawyer before the jury. I thought that your presentation was about as poor as anything that I have ever seen, and I thought--

'THE DEFENDANT: I will agree with that.

'THE COURT: Don't interrupt. I thought you made a very poor impression before the jury, and I was just hoping that some of the other gentlemen downstairs who were in the county jail would have an opportunity of seeing a defendant handle his own criminal case.

'* * *

'Well, you know what your record is. Commencing in 1928, four prior felonies, including one ex-felon in possession. You have had three misdemeanor penalties for larceny, joy riding, as you say, for taking a fellow's car for just a few minutes, which may or may not be bad in...