State ex rel. Conklin v. Buckingham

• Decision Date: 07 November 1938
• Docket Number: 3251.
• Citation: 84 P.2d 49,59 Nev. 36
• Parties: STATE ex rel. CONKLIN v. BUCKINGHAM, County Clerk.
• Court: Nevada Supreme Court

84 P.2d 49

59 Nev. 36

STATE ex rel. CONKLIN v. BUCKINGHAM, County Clerk.

No. 3251.

Supreme Court of Nevada

November 7, 1938

Original proceeding in prohibition by the State of Nevada, on the relation of N.E. Conklin, against D. M. Buckingham, County Clerk of the County of Mineral, Nev., to prohibit respondent from placing the name of a particular candidate upon the official ballot.

Writ denied.

N. E Conklin, of Hawthorne, for petitioner.

J. M Frame, of Reno, for respondent.

DUCKER Justice.

This is a proceeding in prohibition. The petition, upon which an alternative writ was issued, contains the following allegations: Petitioner, an elector and registered voter of the County of Mineral, State of Nevada, is district attorney of said county and a candidate for said office at the ensuring general election. Respondent is County Clerk of said county. Fred L. Wood filed his declaration of candidacy for said office of district attorney as a Republican and is the sole Republican who has filed for the office, and threatens to be, and will be, a candidate therefor at said election. Respondent intends to, and will place the name of said Fred L. Wood upon the official ballot to be voted for at the ensuing election unless prevented from so doing by an order of court. The above named Fred L. Wood was convicted in the Fifth Judicial District Court of the State of Nevada in and for the County of Nye, of an offense involving moral turpitude on the 23rd day of June, 1938. Petitioner was and is the attorney for the county in the above named action and was served with a notice of appeal from denial of a new trial and from the judgment, on said 23rd day of June, and since said service nothing further has been done regarding said appeal.

Petitioner has demanded of respondent that he refrain from placing the name of said Wood upon the ballot to be voted in the coming election, and he refuses to so refrain unless prohibited from doing so by an order of court. Copies of the verdict of conviction together with copies of the information and judgment of the court are made a part of the petition, and in connection therewith it is alleged that certified copies of the same have been filed with the clerk of this court, and ipso facto, said Wood was suspended from the practice of law in this state, and is ineligible as a candidate for said office of district attorney.

The said information contained three counts. Wood was convicted on the third count of the information, which is in words and figures, as follows: "That the defendant, Fred L. Wood on or about the fifth day of October, 1933, and prior to the filing of this information, at the County of Mineral, State of Nevada, he, the defendant Wood, being then and there, and at all of the times herein mentioned, a public officer to-wit: The duly elected, qualified and acting district attorney in and for the County of Mineral, State of Nevada, was guilty of, and did neglect the duties imposed upon him as such officer, in this: That said Wood, as such officer did receive and have in his possession and custody the sum of Two Hundred and Seventy Three and 41/100 dollars, paid unto him by the Tonopah and Goldfield Railroad Company, as a portion resulting from a compromise of delinquent taxes due and owing from said company to the County of Mineral, State of Nevada, and which moneys were then and there the property of and was due and payable unto said County of Mineral. That on, or about the fifth day of October, 1933, said Wood was then and there guilty of neglect of duty in that he failed and neglected to pay the aforesaid moneys into the treasury of the County of Mineral, State of Nevada, and the said moneys being then and there moneys and property of said County, and it being his duty to pay over the same as aforesaid. Said acts and offense were committed in a secret manner, and remained such secret until on, or about the ninth of July, 1937, and prior to the filing of this information, at which time your informant first discovered the offense.

"Informant states that the offense set out in Counts one, two and three herein, grew out of, arose from, and emanated from the same state of facts and offense, and at the same time.

"All offenses set out herein are contrary to the form, force and effect of the statutes in such cases made and provided, and against the peace and dignity of the State of Nevada.

"Gray Mashburn, Attorney General of the State of Nevada,

"By, N.E. Conklin, Deputy Attorney General."

The judgment pronounced upon the verdict of conviction is as follows: "As the court has informed you, you now stand convicted before this court of the crime of a...