Scott v. State
| Decision Date | 08 July 1965 |
| Docket Number | No. 4861,4861 |
| Citation | 81 Nev. 380,404 P.2d 3 |
| Parties | Leon SCOTT, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Babcock & Sutton and R. Ian Ross, Las Vegas, for appellant.
Harvey Dickerson, Atty. Gen., Carson City, Edward G. Marshall, Dist. Atty., James M. Bartley, and Leonard Gang, Deputy Dist. Attys., Las Vegas, for respondent.
As authorized by NRS 34.380(3) Scott appeals from an order of the district court denying his petition for habeas corpus. He was charged with the possession of narcotics, and claims that probable cause to hold him for trial in the district court was not established at his preliminary hearing in the Justice Court. He was not represented by counsel at that hearing. We do not know whether a sufficient showing was made because the district attorney refused to approve the employment of a reporter to transcribe the testimony, though the magistrate preferred to have the hearing reported. There is no record. The state now contends, as it did below, that we must apply the presumption of regularity (NRS 52.070(15)) and deny habeas relief. After all, argues the prosecutor, the want of probable cause cannot be found in the absence of a record showing it. We do not think that the appeal is so easily resolved.
The difficulty here presented is created by certain statutory provisions which appear to be at war. NRS 171.405(4)) on which the prosecutor relies, provides: 'The magistrate, if he deem it necessary for the best interests of justice, and upon the approval of the district attorney, is authorized to employ a reporter to take down all the testimony and the proceedings on the hearing or examination, and within such time as the court may designate have the same transcribed into typewritten transcript.' Adopting the view that the quoted language invests him with final authority, the prosecutor in Clark County has proclaimed his policy not to approve the employment of a reporter if the accused is not represented by counsel at a preliminary hearing. Of course, if NRS 171.405(4) grants the district attorney that kind of power, the legislative purpose expressed in NRS 34.500(7) to make the writ of habeas corpus available to one who 'has been committed on a criminal charge without reasonable or probable cause' is totally frustrated.
The remedy of habeas corpus to test probable cause has frequently been utilized. State v. Fuchs, 78 Nev. 63, 368 P.2d 869; Ervin v. Leypoldt, 76 Nev. 297, 352 P.2d 718; Raggio v. Bryan, 76 Nev. 1, 348 P.2d 156; Ex parte Liotard, 47 Nev. 169, 217 P. 960. 30 A.L.R. 63; In re Kelly, 28 Nev. 491, 83 P. 223. In addition to the explicit authorization of NRS 34.500(7) we note that NRS 171.405(9) contemplates that an accused may seek habeas relief following a preliminary examination, for it provides: 'Testimony reduced to writing and authenticated according to the provisions of this section must be filed by the examining magistrate with the clerk of the district court of his county, and in case the prisoner is subsequently examined upon a writ of habeas corpus, such testimony must be considered as given before such judge or court.' Inherent in the legislative provision for habeas relief (NRS 34.500(7) and NRS 171.405(9)) is the underlying assumption that a record of the preliminary examination will be made in order that the question of probable cause may be reviewed by the court in which the petition for habeas corpus is filed. The availability of this writ cannot, and does not, depend upon the district attorney's approval of the employment of a court reporter. The rights of one accused of crime are protected by the Constitutions of our Nation and State and do not rest upon the whim of the public prosecutor. We abhor the thought that one could be compelled to stand trial without a preliminary showing of probable cause simply because the prosecutor refused to allow a...
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Shelby v. Sixth Judicial Dist. Court In and For Pershing County
...on that ground. That showing cannot be made in the absence of a transcript of the testimony of the witnesses. In Scott v. State, 81 Nev. 380, 404 P.2d 3 (1965), the prosecution was initiated by criminal complaint. A transcript of the testimony of the witnesses, who appeared at the prelimina......