State v. Plunkett
| Decision Date | 09 May 1944 |
| Docket Number | 3403. |
| Citation | 149 P.2d 101,62 Nev. 258 |
| Parties | STATE v. PLUNKETT. |
| Court | Nevada Supreme Court |
Appeal from District Court, Seventh District, White Pine County Harry M. Watson, Judge.
Raymond Plunkett was convicted of murder of the first degree and he appeals.
Affirmed with direction.
See also 142 P.2d 893.
C. A. Eddy, of Ely, and W. E. Baldy, of Carson City, for appellant.
Alan Bible, Atty. Gen., W. T. Mathews and George P. Annand, Deputy Attys. Gen., and John W. Bonner, District Attorney, of Ely for respondent.
The defendant was convicted in the district court of White Pine County, of the crime of murder of the first degree. The jury fixed the penalty at death. His appeal is from the judgment and the order denying a new trial.
The criminal proceedings against him were initiated by a complaint filed in the justice court of Ely Township No. 1 of said county, the formal part of which is as follows:
"Before me this 14th day of December, A.D. 1942, personally appeared J. E. Orrock, in the County of White Pine, State of Nevada, who being first duly sworn, complains and says: That within his knowledge, information and belief, Raymond Plunkett *** of Ely, White Pine County, State of Nevada, on or about the 10th day of December, A. D. 1942, and before the filing of this complaint, at Ely, in the County of White Pine, State of Nevada, did then and there without authority of law, commit the crime of murder, in the following manner: ***"
On the complaint a warrant of arrest was issued on which the defendant was taken into custody.
A demurrer to this complaint, for lack of jurisdiction of the defendant and of facts sufficient to constitute a crime, was overruled, a preliminary examination was had, and the defendant held to answer. Defendant moved, in the district court, to quash the information filed against him upon the ground that the justice court did not have jurisdiction to hold him to answer because the complaint therein was made on information and belief and not upon the positive knowledge of the complainant, and also because the evidence adduced in the justice court did not show a crime had been committed, or that there was probable cause to believe the defendant guilty of a crime. A demurrer to the information was also filed on the same and other grounds. The motion was denied and the demurrer overruled. Defendant now contends on this appeal, that all proceedings in the district court were null and void by reason of this claimed defect of the complaint, and because of insufficient evidence to hold the defendant to answer.
It will be seen that the complaint conforms to the requirement in § 10728, N.C.L., that "if a complaint by proper affidavit, setting forth the nature of the charge, and the facts within the knowledge, information, or belief of the party making the same, is filed with the magistrate, and it sufficiently appears therefrom that an offense has been committed by some person known or unknown to the affiant, triable within the county, the magistrate may issue a warrant of arrest."
The appellant contends that this statute, in so far as it authorizes a complaint on information and belief, is unconstitutional, in that it runs counter to the search and seizure provision of the state constitution, which provides that "no warrant shall issue but on probable cause supported by oath or affirmation ***." Article I Section 18 of the Constitution of Nevada.
We do not think that a constitutional question is involved in this case. It is well settled that a constitutional question will not be determined unless clearly involved, and a decision thereon is necessary to a determination of the case. State ex rel. Adams v. Allen, 55 Nev. 346, 34 P.2d 1074. Unless such necessity arises the statute challenged will be presumed to be constitutional.
The complaint was not sworn to on information and belief merely, but on knowledge, information and belief. The crime of murder charged against defendant was set out therein by positive and direct allegations of fact. However, if the complaint were deficient in the respect claimed, it would now be immaterial. Jurisdiction of the magistrate to issue the warrant of arrest was beyond question when the defendant failed by appropriate proceeding to attack the complaint prior to the preliminary examination. Had a proceeding of this character been pursued by defendant while held under the warrant of arrest, the constitutionality of said § 10728 could have been drawn in question. Ex parte Dimmig, 74 Cal. 164, 15 P. 619. His demurrer to the complaint in the justice court was not such a proceeding. There is no provision in the criminal practice act for a demurrer to a complaint filed with a magistrate. The defendant was committed on the evidence adduced at the preliminary examination. The information in the district court is founded on the commitment and not in any way on the complaint.
In California the practice concerning preliminary examination is substantially the same as ours, except that the proviso under which the complaint was filed in the justice court does not appear in the California statute. The supreme court of that state, in an early decision, announced the principle which we believe is controlling here. People v. Velarde, 59 Cal. 457. In that case the defendant moved the court below to set aside the information, because the affidavit upon which the warrant of arrest was issued was not sufficient to give the court issuing it jurisdiction. The higher court said:
See People v. Wheeler, 65 Cal. 77, 2 P. 892.
In a later case of People v. Staples, 91 Cal. 23, 27 P. 523, the court said:
The court further said:
"It is the duty of the magistrate to hold the defendant to answer for the offense proved, whatever may have been the offense charged."
That this is so here, is obvious from the provisions of § 10785, which provides:
"If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must make or indorse on the depositions and statement, an order signed by him to the following effect: 'It appearing to me by the within depositions and statement (if any), that the offense herein named (or any other offense according to the fact, stating generally the nature thereof) has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer the same."'
Under this statute the complaint, which defendant claims is so fatally defective as to have deprived both the magistrate and the district court of jurisdiction by reason of its being sworn to on information and belief, the court could have held defendant to answer for any felony shown by the evidence. People v. Staples, supra; People v. Lee Look, 143 Cal. 216, 76 P. 1028; People v. Storke, 39 Cal.App. 633, 179 P. 527.
Defendant concedes that the California cases are authority for the principle we deem applicable here, but he asserts that they have been overruled on the point in People v. Howard, 111 Cal. 655, 44 P. 342. This is true, but People v. Howard, as well as People v. Christian, 101 Cal. 471, 35 P. 1043, which the former case stressed as an authority of persuasive quality, was in turn overruled by People v. Look, 143 Cal. 216, 76 P. 1028, which held that the fact that a complaint before a magistrate fails to charge an offense, is of no consequence and will not warrant setting aside the information, where the defendant has been properly committed after a hearing at which evidence was introduced. The court cited to the ruling a number of cases of the California Supreme Court, including People v. Velarde, supra; People v. Wheeler, supra; People v. Staples, supra; People v. Dolan, 96 Cal. 315, 31 P. 107, and People v. Cole, 127 Cal. 545, 59 P. 984.
Quoting from People v. Velarde, supra, as we have, the court said [143 Cal. 216, 76 P. 1029]:
"If there be anything inconsistent with these views in the two department cases of People v. Christian, 101 Cal. 471, 35 P. 1043, and People v. Howard, 111 Cal. 655, 44 P. 342, cited by appellant, they must be considered, so far as they are thus inconsistent, as overruled by the other cases above cited."
By the same token the case of the United States v. Collins, D.C., 79 F. 65, cited by defendant, construing the California Code, and following People v. Christian, supra, and People v. Howard, supra, "went by the board." See also People v. Storke, 39 Cal.App. 633, 179 P. 527, in line with People v. Lee Look, supra.
We have read all the other cases presented by defendant and find nothing in them that causes us to doubt the correctness of the...
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