Gambar halaman
PDF
ePub

Opinion of the Court-Coleman, C. J.

The return shows that on May 19 the petitioner was brought into court, at which time his counsel called the attention of the court to the fact that it was the time previously fixed for the trial of his case. It also appears that the matter was continued by the court until the following day, May 20, when the court heard a motion interposed by the defendant to dismiss, and also an application by the state for a continuance of the case for trial, which motion to dismiss was denied and an order entered continuing the case until the next calendar. Hence these proceedings.

1, 2. That a person charged with a crime is entitled to a speedy trial no one will deny (Rev. Laws, 6855; Ex Parte Stanley, 4 Nev. 113; Ex Parte Larkin, 11 Nev. 90), but as to what constitutes a speedy trial is frequently a question of considerable difficulty to determine. Counsel for petitioner contends that our statute settles the question, so far at least as this matter is concerned, and to sustain his position our attention is directed to section 546 of our Criminal Practice Act as amended (Stats. 1919, p. 436, sec. 92), which reads as follows:

"If a defendant whose trial has not been postponed upon his application, is not brought to trial at the next session of the court at which the indictment or information is triable, after the same is found or filed, the court shall order the indictment or information to be dismissed, unless good cause to the contrary be shown."

It is asserted that there was a session of court on May 19, and, no good cause being shown as a ground for continuance, petitioner was denied a speedy trial, and hence is entitled to his discharge. As to this contention, we may say that there was no such session of court on the date mentioned as is contemplated by the section of the practice act quoted. In most of the states of the Union the law requires the holding of regular terms of court, and such was the law in Nevada for a while, but in view of the conditions existing in this state it was thought

Opinion of the Court-Coleman, C. J.

wise to dispense with regular terms of the district court. State v. Jackman, 31 Nev. 511, 104 Pac. 13.

The term "session of the court," as used in the section quoted, does not refer to every occasion when court convenes, for, as is well known, the court may convene to hear matters which require only the consideration of the presiding judge, but the term "session of the court," in the connection in which it is used in the section quoted, necessarily alludes to a "session" when the court is organized to hear and determine criminal cases. It cannot be so organized unless a jury lawfully drawn and served is present, ready to participate and perform its function, since a trial by jury is one of the constitutional guarantees enjoyed by those charged with crime. The Supreme Court of Pennsylvania, in Clark v. Commonwealth, 29 Pa. 129, speaking of a similar statute, in which a kindred question to that here presented was involved, said:

"Now, the evident construction of this section is, that the 'term, session, or court' intended by the act is a legally constituted and competent term, session, or court. It meant that a prosecutor should not allow two such terms or sessions of the court, at each of which the defendant might be legally indicted or tried, to elapse without bringing on the prosecution. But to constitute a competent court, several things are necessary: The presence of the president judge and jurors, grand and petit, drawn, summoned, and impaneled according to law. It is only after two terms, at both of which it was possible to indict and try them according to law, that they became entitled to discharge. The statute was made to restrain the malice and oppression of prosecutors, and to relieve wrongful imprisonment; not to embarrass the administration of the criminal law; not to relieve righteous imprisonment and to defeat public justice."

* * *

See, also, Commonwealth v. Brown, 11 Phila. 370.

3. It is next contended that the act under which

Opinion of the Court-Coleman, C. J.

petitioner was indicted in unconstitutional, in that it is class legislation, and denies each person equal protection of the law. There is no merit whatever in this contention. The statute (Stats. 1919, p. 33) makes any one of certain acts a felony, and provides that "any person" who commits any of the acts mentioned shall be guilty of a felony. The statute does not aim at any class, nor does it deny to any person equal protection of the law, but it is expressly intended to reach "any person," regardless of the class to which he belongs, who commits any of the acts designated. In the very recent matter of Ex Parte McGee, 44 Nev. 23, 189 Pac. 622, we held that the test of whether or not a statute denies the equal protection of the law is whether all persons similarly situated are affected alike in respect to the privileges conferred and the liabilities imposed. The act in question does not offend against this rule.

4. The third contention, to the effect that the indictment does not charge a crime because it consists of generalities and conclusions, cannot be considered in a habeas corpus proceeding. We think the correct rule on this point is stated by the Supreme Court of California in Ex Parte Ruef, 150 Cal. 665, 89 Pac. 605, wherein it is said:

"It is claimed that the indictments fail to state a public offense. On habeas corpus the inquiry into the sufficiency of an indictment is limited. We think the true rule is that, where an indictment purports or attempts to state an offense of a kind of which the court assuming to proceed has jurisdiction, the question whether the facts charged are sufficient to constitute an offense of that kind will not be examined into on habeas corpus. Here the indictments clearly attempt to charge extortion, a crime defined by section 518, et seq., of the penal code, and within the jurisdiction of the superior court. Without expressing any opinion as to whether these indictments should be held to be good on demurrer or other direct attack, they are at least not, under the

Opinion of the Court-Coleman, C. J.

rule stated, so defective as to permit us to hold them void in this proceeding."

This rule is sustained by an overwhelming weight of authority, as appears from a note to Ex Parte Robinson, L. R. A. 1918B, 1148.

5. Counsel for petitioner seems to be of the impression that great wrong and oppression was wrought by the raising of the bond of petitioner from $2,500 to $5,000, and by the denial by the court on May 20 of the request to permit petitioner to go on his own recognizance. It may be that the spirit of the provision of the constitution against excessive bail (article 1, section 6) has been outraged; but this is not an application to have the bond reduced, nor does the petition or the return justify such an order, for in the petition it is said that petitioner is unable to furnish bond in any sum. Hence, we decline to consider the question of ordering a reduction of the bond.

It is not contended that the district court abused its discretion or in any way violated the rights of the petitioner in entering the order of May 4, vacating the order of the previous day for the service of a panel of jurors to appear May 12.

For the reasons given, it is ordered that these proceedings be dismissed and that the petitioner be remanded to the custody of the officers.

Argument for Appellant

[No. 2440]

PEARL GREINSTEIN, RESPONDENT, v. MOSE GREINSTEIN, APPELLANT.

[191 Pac. 1082]

1. APPEAL AND ERROR-ASSIGNMENT OF ERRORS UNNECESSARY ON APPEAL ON JUDGMENT ROLL.

On appeal upon the judgment roll alone on which only errors appearing on the face of the judgment roll can be considered under 3 Rev. Laws, p. 3344, no assignment of errors is necessary.

2. DIVORCE-COURT CAN REQUIRE DEFENDANT HUSBAND TO CONVEY PART OF HIS SEPARATE ESTATE TO WIFE.

Under Rev. Laws, 5843, authorizing the court to set apart such portion of the husband's property as may be necessary to support the wife, to whom a divorce is granted, the court had authority to require the husband to convey a life interest in the home, which was his separate property, and was to convey his remainder in escrow to secure a cash payment which the husband was ordered to make.

3. DIVORCE-IN ABSENCE OF EVIDENCE, SUPREME COURT CANNOT REVIEW JUSTICE OF PROPERTY DIVISION.

On appeal from a divorce decree on the judgment roll alone, where the evidence is not before the supreme court, that court cannot consider whether the judgment and orders dividing the property are just and equitable.

APPEAL from Sixth Judicial District Court, Humboldt County; James A. Callahan, Judge.

Action for divorce by Pearl Greinstein against Mose Greinstein. Judgment decreeing divorce to plaintiff, and requiring defendant to pay alimony and convey certain property to plaintiff, and defendant appeals from that part of the judgment requiring the conveyance of the property. Affirmed.

Warren & Hawkins, for Appellant:

Where the appeal is upon the judgment roll alone, no assignment of errors or bill of exceptions is necessary. Talbot v. Mack, 41 Nev. 245; Miller v. Walser, 42 Nev. 497.

There is no authority in the court granting a divorce on the ground of extreme cruelty to make any order disposing of the separate property of the husband, or

« SebelumnyaLanjutkan »