Simpson v. Eighth Judicial Dist. Court in and for Clark County, Dept. VI

• Decision Date: 06 December 1972
• Docket Number: No. 6875,6875
• Citation: 88 Nev. 654,503 P.2d 1225
• Parties: Ann T. SIMPSON, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, DEPARTMENT VI, and The Honorable Howard W. Babcock, Judge thereof, Respondents.
• Court: Nevada Supreme Court

Page 1225

503 P.2d 1225

88 Nev. 654

Ann T. SIMPSON, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, DEPARTMENT VI, and The Honorable Howard W. Babcock, Judge thereof, Respondents.

No. 6875.

Supreme Court of Nevada.

Dec. 6, 1972.

Rehearing Denied Jan. 24, 1973.

Heaton & Spizzirri, Las Vegas, for petitioner.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty. and Charles L. Garner, Deputy Dist. Atty., Las Vegas, for respondents.

OPINION

GUNDERSON, Justice:

The respondent court denied petitioner Simpson's motion to dismiss a murder indictment returned by the Clark County Grand Jury. Therefore, she has petitioned this court to prohibit further proceedings under that indictment, which recites:

'The Defendant above named, ANN SIMPSON, is accused by the Clark County Grand Jury of the crime of MURDER (Felony--200.010) committed at and within the County of Clark, State of Nevada, on or about the 27th day of May, 1970, as follows: did wilfully, unlawfully, feloniously and with malice aforethought kill AMBER SIMPSON, a human being.'

Apparently desiring guidelines for pleading like cases, the Clark County District Attorney has requested us to entertain Mrs. Simpson's petition. The District Attorney tenders no suggestion that her petition is untimely, that the deficiency it asserts has been waived, that the deficiency is nonjurisdictional (NRS 34.320), or that petiioner has another plain, speedy and adequate remedy in the ordinary course of the law (NRS 34.330). For purposes of this case, the District Attorney in effect has agreed that a writ of prohibition should issue, if the indictment in question is insufficient. Hence, in this test case, we meet only the issue the parties present, i.e. whether under Nevada law a murder indictment is sufficient, when it alleges nothing whatever concerning the means by which the crime was committed. In our view, it is not.

The facts of this case illustrate graphically the threats to due process that indefinite indictments necessarily pose. During oral argument to this court, the prosecutor virtually acknowledged that the State cannot prove murder, and hence cannot plead that crime with certainty. Evidently, the State at most hopes to establish involuntary manslaughter, on a theory of criminal negligence. ¹ This being so, to prove murder, the State apparently must locate critical evidence not now known, and proceed on some theory of essential facts not yet conceived.

1. Obviously, petitioner is entitled 'to be informed of the nature and cause of the accusation' against her. U.S.Const. Amend. VI. 'No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.' Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). The common law secured these fundamental rights by requiring that an indictment set forth, inter alia, the manner or means by which the offense allegedly was committed. Vol. III Bishop's New Criminal Procedure, § 502, § 514 (2nd Ed.1913); Wharton on Homicide, § 563 (3rd Ed.1907). Of course, our legislature might have implemented such rights in some other appropriate way, e.g. by authorizing a totally vague indictment but providing procedures through which particulars might be obtained. Cf. Neusbaum v. State, 156 Md. 149, 143 A. 872, 876 (1928). However, by NRS 173.075, the legislature has adopted portions of Federal Rule of Criminal Procedure 7(c) ², and in NRS 179.370 it has set forth an approved form of murder indictment. ³ NRS 173.075(1) expressly provides that the 'indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.' NRS 173.075(2) indicates this should either include the means by which the offense was accomplished or show means are unknown. ⁴ NRS 179.370 likewise recognizes that a proper murder indictment should, among other things, contain some reference to means. 'This skeleton form shows conclusively that the legislature, by their enactment that an indictment should contain the facts constituting the offence charged, intended it should contain those showing the mode and manner of its perpetration.' Shepherd v. State, 54 Ind. 25, 27 (1876).

Three Idaho cases illustrate that such statutes may not lightly be swept aside. Early in its history, interpreting statutes much like our own, the Idaho Supreme Court held insufficient a manslaughter information that did not allege means. State v. Smith, 25 Idaho 541, 138 P. 1107 (1914). Thereafter, the court overruled itself, and upheld a murder information like the indictment before us. State v. Lundhigh, 30 Idaho 365, 164 P. 690 (1917). Ultimately, however, the court was constrained to overrule itself again, when confronted with a situation concretely evincing the dangers inherent in indefinite indictments. State v. CMahan, 57 Idaho 240, 65 P.2d 156 (1937).

In McMahan, a physician was arrested for manslaughter, and held to answer after a preliminary hearing that indicated he had committed a criminal abortion resulting in a death. The prosecutor thereupon filed an information charging that on or about February 4, 1936, at Nez Perce County, Idaho, defendant committed the crime of manslaughter as follows: 'then and there did wilfully, unlawfully and feloniously kill one Stella Fleischman, a human being, contrary to the form of the statute in such case made and provided.' The trial court overruled the defendant's demurrer, and what followed suggests what might occur in any case, under such vague charges. As the Idaho Supreme Court, said:

'At the trial in the district court the prosecution offered evidence tending to show an abortion had been performed which resulted in the death of the deceased, but it was entirely insufficient to sustain a conviction based on that theory if one had been secured. Testimony, by and on behalf of appellant, showed he treated the woman for general peritonitis from which disease she died. On rebuttal the prosecution produced evidence showing negligence and lack of skill in the treatment prescribed and administered by appellant, and the trial resulted in a verdict that he was guilty of involuntary manslaughter 'on the ground that he committed an act that might produce death and did so without due caution and circumspection.' . . .

'It was not until during the trial that appellant or his counsel were in any manner informed that he was brought before the bar of justice to answer for a homicide committed through negligence and carelessness. He was entitled to know, before being required to plead to the information, the nature of the charge against him, and it would have told him that had it been drawn in conformity to the plain mandates of the statute. Had it so informed him, he would have been in position to prepare his defense. Without knowledge as to the nature of the charge upon which he was to be tried, he could not do so.

'To put a man on trial without giving him, in the information, 'a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended,' and to let him know these facts, for the first time when his trial is in progress, is to deprive him of the protection the statute was designed to give him and deny him due process of law in violation of . . . the Constitution.' Id., at 159--160; emphasis in original. ⁵

Considering the language of Fed.R.Crim.P. 7(c), from which NRS 173.075 is derived, the United States Supreme Court has also held an indictment is deficient unless it 'sufficiently apprises the defendant of what he must be prepared to meet.' Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962). Furthermore, the Supreme Court noted an indefinite indictment not only deprives a defendant of such notice, but in effect allows a prosecutor or court to usurp the function of the Grand Jury:

'To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.' Id., at 770, 82 S.Ct. at 1050. ⁶

Accordingly, we believe the following formulation of the law, by one of the leading authorities, correctly states the principle that must govern our decision:

'Whether at common law or under statute, the accusation must include a characterization of the crime and such description of the particular act alleged to have been committed by the accused as will enable him properly to defend against the accusation, and the description of the offense must be sufficiently full and complete to accord to the accused his constitutional right to due process of law.' 4 R. Anderson, Wharton's Criminal Law and Procedure, § 1760, at 553 (1957).

2. Although the State has referred us to no pertinent contrary authority, it suggests a definite indictment is unnecessary in this case, because petitioner has access to the transcript of proceedings before the Grand Jury. This argument is untenable, for several reasons.

First, as the authorities just discussed show, a fundamental vice of indefinite charges is that they permit prosecutors to try cases on theories totally different from those propounded earlier, in proceedings before the Grand Jury or magistrate. Second, since NRS 173.075(1) entitles an accused to a 'definite written statement of the essential facts,' that statute in particular...