State v. Holt

• Decision Date: 01 November 1923
• Docket Number: 2576.
• Citation: 219 P. 557,47 Nev. 233
• Parties: STATE v. HOLT.
• Court: Nevada Supreme Court

219 P. 557

47 Nev. 233

STATE v. HOLT.

No. 2576.

Supreme Court of Nevada

November 1, 1923

Appeal from District Court, Humboldt County; James A. Callahan Judge.

E. L Holt was convicted of murder, and he appeals from the judgment, and from an order denying a new trial. Affirmed.

Campbell & Robins, of Winnemucca, and James M. Frame, of Reno, for appellant.

M. A Diskin, Atty. Gen., Thos. E. Powell, Deputy Atty. Gen., and Booth B. Goodman, Dist. Atty., of Lovelock, for the State.

COLEMAN J.

The defendant was convicted in the district court of the crime of first degree murder, and from an order denying a motion for a new trial and the judgment he appealed. Preliminary to considering the merits of the case we will dispose of the objection going to the jurisdiction of the court to try the case and render a judgment against the defendant.

After the death of the deceased a coroner's jury was impaneled to inquire into the cause of her death. It returned the following verdict:

"The deceased was named Mrs. E. L. Holt, was a native of Pennsylvania, aged about 38 years; that she came to her death on the 2d day of December, 1921, in this county, by gunshot wounds inflicted by other than herself under circumstances not excusable or justifiable in law, and we believe such other person to have been E. L. Holt, and we recommend that he be held to answer the same."

Upon the return of this verdict the coroner, pursuant to section 7551, Rev. Laws, issued a warrant for the arrest of the defendant. The section just mentioned reads as follows:

"If the jury find that the person was killed by another under circumstances not excusable or justifiable in law, and the party committing the act be not in custody, the justice of the peace, acting as coroner, shall issue a warrant signed by him, with his name of office, for the arrest of the accused."

The defendant was arrested upon the warrant mentioned and taken before the magistrate. Counsel appeared in behalf of the defendant, asked for time in the matter, and stipulated as to the date of holding the preliminary examination.

The preliminary examination was based upon the verdict of the coroner's jury. When the defendant was brought before the magistrate for the preliminary hearing he was informed that the proceedings were based upon the verdict of the coroner's jury, and that it was considered as a complaint. The magistrate commenced to read it to the defendant, when his counsel, without making any objection thereto, announced that they waived the reading thereof. At the conclusion of the examination the magistrate held the defendant to answer. Thereafter the district attorney filed an information against the defendant charging him with murder. In due time counsel for the defendant moved to set aside the information upon several grounds, all of which are bottomed upon the contention that no complaint was, prior to the preliminary hearing, filed with the magistrate charging the defendant with a crime. Hence it is said that the magistrate acquired no jurisdiction to proceed, and therefore the district court acquired none, and that prejudicial error was committed by the trial court in refusing to set aside the information.

On the part of the state it is contended that the verdict of the coroner's jury constituted a complaint, and that our statutes contemplate the holding of a preliminary hearing based thereupon. To support this contention our attention is directed to certain sections of the statute and to the following authorities: In re Sly, 9 Idaho, 779, 76 P. 766; State v. Tennison, 39 Kan. 726, 18 P. 948; Turner v. People, 33 Mich. 363. We do not deem it necessary to decide the foregoing contention, since, as further maintained by the state, the defendant waived the right to raise the point relied upon in the district court by his failure to urge it before the justice of the peace, and by expressly waiving the reading of the verdict of the coroner's jury when informed that it was the complaint upon which the preliminary hearing was being held.

A preliminary hearing is not a trial. In the very nature of the situation it could not be. A justice of the peace has no jurisdiction to try one charged with a felony; he can only hold a preliminary hearing and determine if probable cause exists for holding the defendant to answer. The holding of a preliminary hearing is a statutory proceeding, and it is a rule well recognized by the courts of the land that one charged with a crime may waive a statutory requirement. This is such a well-recognized rule that we hardly deem it necessary to cite authority to support it; however, the following are a few among the many so holding, namely: McComb v. District Court, 36 Nev. 417, 136 P. 563; State v. McLain, 13 N.D. 368, 102 N.W. 407; People v. Dowd, 44 Mich. 488, 7 N.W. 71; Toney v. State, 15 Ala. App. 14, 72 So. 508; State v. Anderson, 35 Utah, 496, 101 P. 385; State v. Miller, 87 Kan. 454, 124 P. 361; State v. White, 76 Kan. 654, 92 P. 829, 14 L. R. A. (N. S.) 556; Ex parte Talley, 4 Okl. Cr. 398, 112 P. 36, 31 L. R. A. (N. S.) 805; Oborn v. State, 143 Wis. 249, 126 N.W. 737, 31 L. R. A. (N. S.) 966; 8 R. C. L. 69; 16 C.J. 184. It is a wholesome rule, without which criminals would often be afforded an avenue of escape, because, in delay, important witnesses often die or leave the country. In fact, to take any other view would put a premium upon such a course as was adopted by the defendant in this case. He had nothing to lose and everything to gain.

It is the public policy incorporated into the written law of this state to ignore all irregularities and informalities in criminal procedure which result in no injury. Every consideration impels us to hold that the defendant waived the filing of a formal written complaint, even if one be required, as to which we express no opinion, though we are frank to say it is the safer practice to file one as the basis of every preliminary hearing, whether the result of a coroner's inquest or not.

While the point is not made, and we do not undertake to decide it, the query arises whether the defendant was not limited, in making a motion to set aside the information, to the grounds enumerated in section 7090, Rev. Laws, as amended by section 30, c. 232, Stats. 1919. In this connection the case of State v. Bailey, 32 Kan. 83, 3 P. 769, is interesting. The proceedings in that case before the information was filed were identical with those in this case, except that the defendant did move the justice of the peace to quash the warrant and discharge him from custody. The Supreme Court, in passing upon an alleged error of the trial court in overruling a plea in abatement, said:

"When the question is raised by a plea in abatement, as in the present case, we think the only questions presented for consideration are whether an attempt has been made to give the defendant a preliminary examination, and whether by such attempt reasonable notice has been given to him with regard to the nature and character of the offense charged against him. If no attempt has been made to give the defendant a preliminary examination, and if he has not waived the same, and was not at the time of the filing of the information a fugitive from justice, we think the plea in abatement should be sustained; and also where the preliminary examination has not been waived and the defendant has not been a fugitive from justice, and has not had, through the instrumentality of a preliminary examination, any reasonable notice of the nature and character of the offense charged against him, we think the plea in abatement should also be sustained. But it is not necessary that the papers and proceedings on a preliminary examination should be technically regular and exact, like the papers and proceedings on the final trial. It is not necessary that the papers and proceedings on a preliminary examination should set forth the offense in all its details, and with perfect and exhaustive accuracy. For the purpose of authorizing a final trial, and of requiring that the defendant should plead to the merits of the action, all that is necessary is that the defendant should be given a fair opportunity to know, by a proffered preliminary examination, the general character and outlines of the offense charged against him;

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