Shelby v. Sixth Judicial Dist. Court In and For Pershing County

• Decision Date: 31 May 1966
• Docket Number: No. 5094,5094
• Citation: 82 Nev. 204,414 P.2d 942
• Parties: Charlle SHELBY, Petitioner, v. The SIXTH JUDICIAL DISTRICT COURT of the State of Navada, IN AND FOR the COUNTY OF PERSHING, and the Honorable Merwyn H. Brown, Judge Thereof, Preslding, Respondents.
• Court: Nevada Supreme Court

Page 942

414 P.2d 942

82 Nev. 204

Charlle SHELBY, Petitioner, v. The SIXTH JUDICIAL DISTRICT COURT of the State of Navada, IN AND FOR the COUNTY OF PERSHING, and the Honorable Merwyn H. Brown, Judge Thereof Preslding, Respondents.

No. 5094.

Supreme Court of Nevada.

May 31, 1966.

J. Rayner Kjeldsen, Reno, for petitioner.

Roland W. Belanger, Pershing County Dist. Atty., Lovelock, for respondents.

OPINION

THOMPSON, Justice:

This is an original proceeding in prohibition to stay a district court criminal trial upon a grand jury indictment. A transcript of the testimony of the witnesses, who appeared before the grand jury, was not prepared. The petitioner, who is in custody, contends that the jurisdiction of the district court to proceed further is not shown to exist, absent a transcript of the testimony before the grand jury upon which the indictment was returned. We heretofore issued an alternative writ staying proceedings below until we could give due consideration to the issue presented. We now conclude that the application for prohibition must be denied because the writ of habeas corpus provides a plain, speedy and adequate remedy by which to present the matter in issue.

Following indictment, the petitioner, Shelby, was brought before the district court for arraignment upon the charge of assault with a deadly weapon. Before entering his plea, he moved for an order allowing him to inspect the transcript of the testimony of the witnesses who had appeared before the grand jury. Three reasons were advanced in support of his motion: First, to determine if the requisite standard of proof had been met to justify return of the indictment; Second, to determine if the indictment had been brought on legally admissible evidence; and, Third, to use the transcript for discovery in preparation for trial. The district court denied this motion. Shelby then moved to quash the indictment upon the ground that without a transcript it could not be determined if the indictment was based upon legally sufficient evidence. The lower court refused to quash the indictment and set the case for trial. This prohibition proceeding followed. We propose to designate the appropriate remedy to reach the issue presented and also to consider relevant statutory provisions and case law bearing on the right to a grand jury transcript.

1. The extraordinary writ of prohibition attacks jurisdiction and is not available when there is a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.320; 34.330. ¹ Since 1912 this court has recognized that the writ of habeas corpus is the plain, speedy and adequate remedy by which to determine the legal sufficiency of the evidence supporting a grand jury indictment. Eureka County Bank Habeas Corpus Cases, 35 Nev. 80, 126 P. 655, 129 P. 308 (1912); Ex parte Stearns, 68 Nev. 155, 227 P.2d 971 (1951); Ex parte Colton, 72 Nev. 83, 295 P.2d 383 (1956). Therefore, the availability of habeas relief precludes prohibition, (NRS 34.330; State ex rel. Callahan v. Second Judicial District Court, 54 Nev. 377, 18 P.2d 449 (1933); Kabadian v. Doak, 62 App.D.C. 114, 65 F.2d 202, 205 (1933); Note 22 Cal.L.Rev. 545), particularly where, as here, the petitioner is under restraint.

2. It is fundamentally unfair to require one to stand trial unless he is committed upon a criminal charge with reasonable or probable cause. No one would suggest that an accused person should be tried for a public offense if there exists no reasonable or probable cause for trial. Our Constitution and Statute recognize this principle of fairness and provide for its protection by the writ of habeas corpus. Nev. Const. Art. 1, § 5, commands that the writ of habeas corpus shall not be suspended unless, in cases of rebellion or invasion, the public safety may require its suspension; and NRS 34.500(7) explicitly authorizes discharge from custody or restraint if one is not committed upon a criminal charge with reasonable or probable cause.

The writ has been most commonly used to test probable cause following a preliminary examination resulting in an order that the accused be held to answer in the district court. See State v. Plas, 80 Nev. 251, 391 P.2d 867 (1964), writ denied; Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963), writ denied; State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962), writ denied; Raggio v. Bryan, 76 Nev. 1, 348 P.2d 156 (1960), writ denied; Ervin v. Leypoldt, 76 Nev. 297, 352 P.2d 718 (1960); writ denied; Goldblatt v. Harris, 74 Nev. 74, 322 P.2d 902 (1958), writ denied; Ex parte Kline, 71 Nev. 124, 282 P.2d 367 (1955), writ granted; Ex parte Sullivan, 71 Nev. 90, 280 P.2d 965 (1955), writ granted; and many others. The remedy is equally available for use following a grand jury presentment, (See: Ex parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960), writ granted.), and, as already noted, to test the legal sufficiency of the evidence supporting a grand jury indictment. Ex parte Colton, 72 Nev. 83, 205 P.2d 383 (1956), writ denied; Ex parte Stearns, 68 Nev. 155, 227 P.2d 971 (1951), remanded to district court to take evidence; Eureka County Bank Habeas Corpus Cases, 35 Nev. 80, 126 P. 655, 129 P. 308 (1912), writ granted.

All of the cases cited compel the conclusion that whether the prosecution elects to proceed by criminal complaint and preliminary examination, by grand jury presentment, or by grand jury indictment, it must assume the burden of showing the existence of reasonable or probable cause to hold the accused for trial, if challenged 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 preliminary examination, was not made. He petitioner for habeas relief, contending that probable cause to hold him for trial in the district court was not shown to exist and that he should not have been bound over. We granted his petition, stating: 'We hold that a defendant's petition for habeas corpus filed pursuant to NRS 34.500(7) must be granted, if there is no record of the preliminary examination for review by the court in which the petition is filed. In such case no legal cause is shown for the continuation of the petitioner's imprisonment of restraint, and the judge must discharge him. NRS 34.480.' By a parity of reasoning that principle applies with equal force to a prosecution initiated by grand jury presentment or indictment.

3 The statutes which govern the grand jury are found in NRS 172 and 173. Among other matters, they state what must be kept secret and what can be disclosed in the course of judicial proceedings. Unlike California, our statute does not specifically permit a defendant to have or make a copy of the grand jury transcript, nor does it require that a transcript be made. However, if the role of the grand jury and the rights of the defendant are to be realized, the statutes read in conjunction with one another make it evident that a transcript must be made to preserve the testimony and evidence presented to the grand jury.

For example, NRS 172.260(2) commands that the 'grand jury can receive none but legal evidence and the best evidence in degree, to the exclusion of hearsay or secondary evidence.' The preceding subsection, NRS 172.260(1) provides that 'in the investigation of a charge, for the purpose of either presentment or indictment, the grand jury can receive no other evidence than such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or the deposition of witnesses taken as provided in this Title.' Furthermore, NRS 172.280 designates the degree of evidence needed to warrant indictment. It provides that 'the grand jury ought to find an indictment when all the evidence before them, taken together, is such as, in their judgment, would, if unexplained and uncontradicted, warrant a conviction by the trial jury.'

It is apparent that without a transcript a court cannot intelligently determine whether the kind and quality of evidence contemplated by the code was in fact produced before the grand jury, nor whether the indicted defendant should be held for trial.

4. We know that pretrial inspection and copying of the transcript of the testimony of the witnesses who appeared before the grand jury will, to some degree, diminish the traditional secrecy of grand jury proceedings and allow the discovery of evidence heretofore denied the indicted defendant. However, we hasten to point out that the rule of secrecy is not made absolute by the Nevada statutes governing grand juries. Grand jury testimony is permitted to impeach a witness (NRS 172.330(2)), at the trial of an indictment for perjury (NRS 172.330(2)), and where the disclosure would promote justice in the 'due course of judicial proceedings' (NRS 172.140).

The principal reasons for the rule of secrecy are expressed in the following opinions: United States v. Rose, 215 F.2d 617 (3d Cir. 1954); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959), dissenting opinion,...