State v. Towers

• Decision Date: 25 March 1914
• Docket Number: 2038.
• Citation: 139 P. 776,37 Nev. 94
• Parties: STATE v. TOWERS.
• Court: Nevada Supreme Court

139 P. 776

37 Nev. 94

STATE v. TOWERS.

No. 2038.

Supreme Court of Nevada

March 25, 1914

Appeal from District Court, Esmeralda County; Peter J. Somers Judge.

Herbert Towers was indicted for obtaining money under false pretenses. The indictment was set aside, and the State appeals. Affirmed.

Talbot C.J., dissenting.

Cleveland H. Baker, Atty. Gen., J. Emmett Walsh, Dist. Atty., and John F. Kunz, both of Goldfield, and P. F. Carney, of Berkeley Cal., for the State.

Augustus Tilden, of Goldfield, for respondent.

McCARRAN J.

This is an appeal from an order of the district court of Esmeralda county, setting aside an indictment found by the grand jury of that county, by which indictment the defendant, Herbert Towers, was accused of obtaining money under false pretenses.

From the record, it is disclosed that on January 30, 1912, the grand jury of Esmeralda county filed an indictment against the defendant, Towers, charging him with the crime of obtaining money under false pretenses. The defendant was arraigned under the indictment, and interposed a plea of not guilty. Later the district attorney of Esmeralda county moved the court to dismiss the indictment, stating that there was a question in his mind as to the ownership of the money obtained, as alleged in the indictment. Pursuant to his motion the court made an order dismissing the indictment, and at the request of the district attorney entered another order directing that the matter be resubmitted to the grand jury. Thereafter, and on the 21st day of March, 1912, the same grand jury, after having reinvestigated the case, made a report to the court that they found "No true bill." Subsequently, to wit, on the 8th day of August, 1912, approximately 4 1/2 months thereafter, the district attorney moved the court for an order of resubmission to the same grand jury, and pursuant to the motion the court made such order, and on the 9th day of August, 1912, the same grand jury filed an indictment against the defendant charging him with the identical crime--obtaining money under false pretenses. On the 13th day of August the defendant filed a motion to set aside the indictment upon the ground "that at the time of the finding of the present indictment there existed on the part of the grand jury, and every member thereof, a state of mind in reference to the case and to the defendant which prevented it and him from acting impartially and without prejudice to the substantial rights of the defendant." In furtherance of the motion, the defendant asserted: "Said motion is based upon the fact that the grand jurors by which the present indictment was found heretofore, and before the finding of the present indictment, found and returned to this court an indictment, hereinafter referred to as the former indictment, against defendant, for the identical alleged offense attempted to be set forth in the present indictment, and prior to the finding of said former indictment caused to be produced before them, witnesses upon whose testimony they, and each of them, formed a belief in the probable guilt of defendant of said alleged offense and in accordance with which belief they on oath found said former indictment."

The motion to set aside the indictment made in behalf of the defendant was sustained by the court, and, from the order sustaining this motion setting aside the indictment, appeal is taken to this court by the state.

The position taken by the respondent in this case is that, the grand jury having found a former indictment against this defendant for the identical offense, and having filed that indictment in the court, and having thereby accused the defendant of the crime of receiving money under false pretenses, the acts of the grand jury in that respect made its members subject to the challenge as prescribed by the statute (subdivision 6, § 7005), to wit: That a state of mind existed on the part of each and every one of the grand jurors finding such indictment which would prevent them from acting impartially and without prejudice to the substantial rights of the party challenging.

Section 7399 of the Revised Laws prescribes: "The court may, either of its own motion or upon the application of the district attorney, and in furtherance of justice, order any action after indictment to be dismissed; but in such case the reasons of the dismissal shall be set forth in the order, which must be entered on the minutes."

It was pursuant to the foregoing section, upon the motion of the district attorney, that the first indictment was dismissed for the reasons, as stated in the record, that, a defect in the indictment having been drawn to the attention of the district attorney, he moved the court to dismiss the indictment, and resubmit the cause to the grand jury.

Section 7401, Revised Laws of Nevada, prescribes: "An order for the dismissal of the action, as provided in this chapter, shall be a bar to another prosecution for the same offense, if it be a misdemeanor, but it shall not be a bar if the offense charged be a felony." In this particular instance the offense charged was a felony, and hence the state was not barred from further investigation or prosecution of the case under proper procedure.

Section 7044, Revised Laws of Nevada, is as follows: "The dismissal of the charge shall not, however, prevent the same charge from being again submitted to a grand jury or as often as the court shall so direct. But, without such direction, it shall not be again submitted."

As disclosed by the record subsequent to the dismissal of the first indictment, and upon the motion of the district attorney, the court on two occasions ordered the charge submitted to the same grand jury. On the first of those occasions the grand jury returned a report of "No bill." On the second occasion, however, the grand jury returned an indictment.

Section 7101, Revised Laws, provides: "If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to be submitted to the same or another grand jury."

The American courts that have had occasion to pass upon this particular subject are by no means uniform in the rule announced. Some have declared that a grand jury can return a second indictment for the same offense against a party accused, even without additional evidence; but, in each decision rendered on this subject by the several courts of last resort, it would appear that each case rested upon and was decided upon its own particular set of circumstances, and was viewed in the light of statutes peculiar to that state. State v. Peterson, 61 Minn. 73, 63 N.W. 171, 28 L. R. A. 324 (see editor's note 2).

In the case of De Leon v. Territory, the Supreme Court of Arizona, under a statute very similar to that of ours, held in substance that, where an indictment was attacked by demurrer, and upon examination was found to imperfectly or insufficiently set forth the offense with which the grand jury attempted to charge the party defendant, there was no question as to the right of the grand jury to find a second indictment, where the case was resubmitted to them. De Leon v. Territory, 9 Ariz. 161, 80 P. 348.

Counsel for appellant, in their brief, lay considerable stress upon the declaration of the Supreme Court of California in the case of the People v. Northey, 77 Cal. 618, 19 P. 865, 20 P. 129; but it must be observed with reference to that case that the decision rested entirely upon a set of circumstances peculiar to the case itself. Northey was indicted by the grand jury of San Francisco county, after he had appeared as a witness before the grand jury while they were investigating a case and in which case Northey, by his sworn testimony, admitted his own inculpation, and from his testimony, together with other matters brought before the grand jury, they filed their indictment against him. In that case the Supreme Court of California said: "We see no reason why this grand jury should not have indicted Northey on his own testimony as given before it. If it saw proper to call a witness (Woods) as was done in this case, before ordering the indictment, we see no reason why it could not do so. Such a course indicated no bias or prejudice on the part of the grand jury, or any member of it. In fact, in this case he may be said to have been under consideration from the time that he gave his testimony in relation to Morrow and until the indictment against him was found. The disqualifying state of mind referred to in the statute must have existed when the examination of Northey's case was commenced, when he was called before them as a witness, and it is not contended that any such state of mind existed at that time."

The Northey Case is not strictly in point in the matter before us at this time.

Mr. Bishop, in his work on Criminal Procedure, in discussing this subject, says: "The grand jury, at any time during its term of organization and service, even at a subsequent term of the court, may find a second indictment, as a substitute for the first, without hearing the evidence anew."

This principle has been sustained by many jurisdictions. In the case of Ex parte Job, 17 Nev. 184, 30 P. 699, this court held that, although a charge be submitted to three successive grand juries, and they failed to indict, the fourth grand jury may find a valid indictment, and the failure of the respective grand juries to find an indictment was not a bar to further prosecution. This doctrine as laid down in the Job Case, supra, is in harmony with many decisions of courts of last resort in the several states. Commonwealth v....