Argument for Petitioner

4. HABEAS CORPUS-IMPERFECTIONS IN INDICTMENT NOT CONSIDERED. On habeas corpus, imperfections in the indictment because it consisted of generalities and conclusions cannot be considered, and if the indictment attempts to state an offense of a kind which the court assuming to proceed has jurisdiction, the question whether the facts charged are sufficient to state an offense will not be examined into.

5. HABEAS CORPUS-EXCESSIVENESS OF BOND NOT CONSIDERED WHERE PETITIONER IS UNABLE TO FURNISH ANY.

Even though the action of the court in raising the bail from $2,500 to $5,000 violated the spirit of Const. art. 1, sec. 6, for· bidding excessive bail, the matter will not be reviewed on habeas corpus, where it appeared petitioner was unable to furnish any bail whatsoever.

ORIGINAL PROCEEDING. Application of Mike Moriarity for a writ of habeas corpus to secure release from the custody of the sheriff of Nye County, who was holding him under indictment. Proceeding dismissed, and petitioner remanded.

M. J. Scanlan, for Petitioner:

There has been unnecessary delay by the prosecution in bringing petitioner to trial. The postponement should have been upon the application of one of the parties. and upon affidavit. There could be no presumption that petitioner had made application for a postponement. Rev. Laws, 7126; State v. Dewey, 88 Pac. 881. Neither can it be said that petitioner waived objection to the postponement, as he was given no opportunity to object. "If good cause therefor existed, that the prosecution would have shown it is readily to be inferred; * * * and certainly it was the official duty of the county attorney to show such cause as existed why this action had not been prosecuted. No good cause existed, we must conclusively presume." Yule v. State, 141 Pac. 570. The affidavit of the deputy district attorney was insufficient to show good cause for the continuance on account of the inability of his witnesses to be in attendance at the trial. "The moving party is bound to give at least reasonable assurance of their attendance at the time proposed for the continuance." 9 Cyc. 182; State v. Nelson, 36 Nev. 403.

Argument for Petitioner

The state has no election as to which of two persons charged with an offense shall be tried first. Laws, 7126.

* * *

Rev.

In all criminal prosecutions the accused shall enjoy the right of a speedy and public trial. Rev. Laws, 6855. "If the defendant, whose trial has not been postponed upon his application, is not brought to trial at the next session of the court, the court shall order the indictment or information to be dismissed." Stats. 1919, sec. 546, p. 433. As there are no "terms" under our laws, the word "session" means the time when the court is open and ready for business. Horton v. New Pass Co., 21 Nev. 184; State v. Jackman, 31 Nev. 511; 35 Cyc. 1439; Stefani v. State, 24 N. E. 254; Lepari v. State, 19 Tex. App. 431; In Re Gannon, 11 Pac. 240. A speedy trial means that "the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation." Ex Parte Stanley, 4 Nev. 116; Ex Parte Larkin, 11 Nev. 90; U. S. v. Fox, 3 Mont. 512. After petitioner had demanded an early trial, and without any application, waiver, or consent to a postponement, it was the duty of the state to prosecute with due diligence. Flagg v. State, 74 S. E. 562; Thornton v. State, 67 S. E. 1055. The indictment upon which the petitioner is held does not state any offense known to the law. U. S. v. Cruikshank, 92 U. S. 569; U. S. v. Hess, 124 U. S. 483; U. S. v. Bopp, 230 Fed. 723.

An indictment must contain every substantive fact necessary to constitute the offense, and must allege the same with such fullness and precision that the defendant may know for what he is prosecuted, to enable him to prepare his defense. State v. Howard, 68 N. W. 1096; State v. Thurston, 58 Am. Dec. 695; Horton v. State, 39 L. R. A. 423; State v. Crouse, 104 Atl. 525. This is particularly true where the statute does not sufficiently define the crime and set forth all the essential elements. The use of the statutory language is not sufficient. State v. Seay, 20 Am. Dec. 66; U. S. v. Carll, 105 U. S. 612.

Argument for Respondent

The criminal syndicalism statute (Stats. 1919) is unconstitutional and void, being class legislation; making an arbitrary and unreasonable distinction between those who advocate and teach crime, sabotage, violence, and unlawful methods as a means of accomplishing industrial or political reform, while it exempts those who advocate and teach the same doctrine in opposing political and industrial reforms. 14th Amendment, U. S. Const.; secs. 20, 21, art. 4, Const. Nevada; 12 C. J. 1186; State v. Holland, 96 Pac. 719.

The question of the constitutionality of the statute has been sufficiently raised. Rev. Laws, 6240. "In habeas corpus proceedings, the person in whose behalf the writ is issued may deny any of the facts set forth in the return, and may challenge matters in avoidance thereof." 21 Cyc. 321; In Re Smith, 143 Cal. 368.

"The right of a person to a writ of habeas corpus does not depend upon the legality or illegality of his original caption, but upon that of his detention." 21 Cyc. 295; Rev. Laws, 6245.

L. B. Fowler, Attorney-General, and H. H. Atkinson, District Attorney, for Respondent:

There has been no unnecessary delay by the state in bringing the case of petitioner to trial. It was understood and agreed that the trial of M. C. Sullivan should proceed that of petitioner. Having consented to the postponement, his case does not come within the province of section 7128, Revised Laws.

Discussions as to sessions and speedy trials are not germane to the question involved, for the reason that petitioner was a party to the delay. Ex Parte Stanley, 1 Nev. 116; Ex Parte Larkin, 11 Nev. 90.

The trial court has a certain discretion in the granting of continuances, and may take into account his own judicial knowledge of conditions in ordering postponements. Ex Parte Stanley, supra; Ex Parte Tranmer, 35 Nev. 78; Ex Parte Bull, 42 Cal. 199.

Petitioner's remedy for the refusal of the lower court

Opinion of the Court-Coleman, C. J.

to grant his motion for a dismissal, on the ground that he was not being given a speedy trial, is by appeal. The writ of habeas corpus is not intended to have the force or operation of an appeal, writ of error or of certiorari, and is not designated as a substitute for either. Ex Parte Smith, 2 Nev. 338; Ex Parte Winston, 9 Nev. 71; Ex Parte Maxwell, 11 Nev. 428; Ex Parte Gafford, 25 Nev. 101; Ex Parte Bull, 42 Cal. 199; People v. Marino, 85 Cal. 515.

Petitioner sets forth nothing to show that the indictment does not state a criminal offense; he does not cite any statement in the indictment that he is unable to understand, and he cannot therefore consistently maintain that it does not state an offense. It is clearly in the language of the statute, charges the offense in the words of the statute creating it, and is therefore sufficient. People v. Logan, 1 Nev. 110; Ex Parte McDermott, 183 Pac. 437.

The act in question is not beyond the legislative power. Ex Parte McDermott, supra.

By the Court, COLEMAN, C. J. :

This is an original proceeding in habeas corpus.

It appears from the return to the writ that petitioner is held by the sheriff of Nye County under an indictment returned by the grand jury of that county.

On January 14, 1920, the petitioner and one M. C. Sullivan were separately indicted by the grand jury of Nye County for similar offenses, and on February 7, 1920, the two cases were set for trial for March 29, 1920, with the understanding that the Moriarity case should follow the Sullivan case. On April 24 the court raised the bond of petitioner from $2,500 to $5,000. Prior to March 29 the defendant Sullivan received word of the serious illness of a brother in Butte, Mont., and the court permitted him to leave the state on his own recognizance. On March 20 counsel for Sullivan (who was at that time, and now is, attorney for this petitioner) sent from Reno the following telegram to the district judge at Tonopah :

Opinion of the Court-Coleman, C. J.

"Sullivan advises death of brother and illness of sister and requests postponement. Any time later suitable for me unless state insists on proceeding with trial of Moriarity."

In pursuance of this telegram, it was agreed that the two cases might be postponed for trial, and on March 29, counsel appearing for both defendants, the Sullivan case was set for May 12 and the Moriarity case for May 19. It also appears that on May 3 the district court of Nye County drew a panel of jurors for the trial of criminal cases to appear May 12, and that on the following day, May 4, the presiding judge of that court received a telegram from Sullivan's attorney, reading as follows:

"Reno, Nevada, May 4, 1920. Judge Averill, Tonopah, Nevada: Just received wire Sullivan subpenaed as witness in murder inquest which will probably last two or three weeks. Request postponement his case. Kindly advise me soon as convenient. M. J. Scanlan."

It also appears that on May 4 the district court of Nye County entered an order vacating the order entered the day before for the service of a panel of jurors to appear May 12, and continued the trial of the Sullivan case to September 6, 1920.

It is alleged in the petition that the petitioner has at all times since February 7 been ready and anxious for a trial of his case, has never asked for nor desired a continuance, and that he has been confined in the jail of Nye County continuously since January 14, 1920, except for the period between March 31, 1920, and April 21, 1920. It is also alleged that on May 7 counsel for petitioner was informed that the said district court had vacated the order setting petitioner's case for trial on May 19, and had indefinitely postponed the same, without informing either the petitioner or his counsel of its intention to hear or consider an application for such an order, and that immediately upon receiving notice of such an order counsel protested against such continuance and insisted upon the trial of petitioner on May 19.