State on Behalf of Fogliani v. Carter

• Decision Date: 27 March 1963
• Docket Number: No. 4607,4607
• Citation: 379 P.2d 945,79 Nev. 146
• Parties: STATE of Nevada on Behalf of Jack FOGLIANI, Warden, Nevada State Prison, Appellant, v. Charles Joseph CARTER, Respondent.
• Court: Nevada Supreme Court

Page 945

379 P.2d 945

79 Nev. 146

STATE of Nevada on Behalf of Jack FOGLIANI, Warden, Nevada State Prison, Appellant, v. Charles Joseph CARTER, Respondent.

No. 4607.

Supreme Court of Nevada.

March 27, 1963.

Rehearing Denied April 4, 1963.

Harvey Dickerson, Atty. Gen., D. W. Priest, Chief Asst. Atty. Gen., Carson City, for appellant.

Charles Joseph Carter, pro se.

THOMPSON, Justice.

The state appeals from an order of the district court granting Carter's petition for a writ of habeas corpus. The appeal is authorized by NRS 34.380(4). Carter had initially been tried upon an information charging him, in separate counts, with the commission of two felonies relating to the same act, transaction or event; assault with a deadly weapon (NRS 200.400 (2)), and robbery (NRS 200.380). A jury was permitted to return two verdicts, one convicting Carter of assault and battery and the other convicting him of robbery. Judgment was thereafter pronounced upon each verdict and separate sentences imposed (three months in the county jail for assault and battery, a misdemeanor, and a term of not less than five nor more than seven years in the state prison for robbery, a felony). In later granting Carter's application for a writ of habeas corpus, the district court found that the mandate of NRS 173.260, '* * * but the defendant may be convicted of but one of the offenses charged, and the same must be stated in the verdict,' ¹ was violated with the result that each judgment and sentence was entered without jurisdiction and was void. We agree that the assault and battery conviction was void, but for a different reason than that given by the district court. We do not agree with that court that the robbery conviction was also void and entered without jurisdiction.

An information may properly charge different offenses if they relate to the same act, transaction, or event, and the prosecutor need not elect between them. NRS 173.260, supra. State v. Womack, 68 Nev. 241, 229 P.2d 149. Correlatively, an information may not join two separate and distinct felonies occurring at different and distinct times and places. If such an information is filed, the state may be compelled, upon proper motion, to elect upon which of the two offenses charged it will prosecute. People v. Stingley, 414 Ill. 398, 111 N.E.2d 548. The information before us discloses that each offense charged (assault with a deadly weapon and robbery) was committed upon the same victim at the same time and place; each offense related to the same 'transaction or event.' Therefore, joinder was proper. Thus, the trial upon the merits involved a factual situation where a single transaction may have resulted in the commission of two offenses, each of which is made punishable in different ways by different provisions of the criminal practice act. In such a case NRS 173.260(2) contemplates that the trial court will, by proper instruction, direct the jury that the accused (if found guilty at all) 'be convicted of but one of the offenses charged.' If the trial court failed to so instruct the jury, error occurred. ² In any event, it should not have allowed the jury to return two verdicts of conviction. However, this error of omission in failing to advise the jury of its obligation under NRS 173.260(2) is of no legal significance here because analysis reveals that Carter was in fact 'convicted of but one of the offenses charged,' to wit, robbery. The jury verdict purporting to convict Carter of assault and battery was a nullity and void, for he was not charged with that offense, nor is that crime 'necessarily included' as a lesser offense within the charge of assault with a deadly weapon. ³ A verdict which does not determine the issues raised by a not guilty plea is void, and the court is without jurisdiction to enter judgment thereon. Ex parte Booth, 39 Nev. 183, 154 P. 933, L.R.A.1916F, 960; Ex parte Dela, 25 Nev. 346, 60 P. 217. Also we mention that, where two separate offenses relating to the same transaction or event are joined in an information, a conviction on one with no verdict on the other is an acquittal as to the other. People v. Schrader, 2 Ill.2d 212, 117 N.E.2d 786. Thus, here the finding of guilty upon the charge of robbery was, in legal contemplation,...