W. H. Deal and R. Gilroy, for Petitioner.
Geo. B. Thatcher, Attorney-General, and J. A. Callahan, District Attorney, for Respondent.
By the Court, McCarran, J.:
This is an original proceeding in habeas corpus. The writ in this case was heretofore issued upon a duly verified petition alleging that the petitioner was unlawfully confined and restrained of his liberty by the sheriff of Humboldt County.
The petitioner, Alexander Dickson, as appears from his petition, was indicted by the grand jury of Humboldt County, and in said indictment was charged with grand larceny. The indictment is as follows:
The defendant, Alexander Dickson, above is accused by the county of Humboldt, State of Nevada, of a felony committed as follows, to wit: That said defendant, Alexander Dickson, on the 6th day of February, A. D. 1913, or thereabouts, and before the finding of this indictment, at the said county of Humboldt, State of Nevada, did then and there wilfully, unlawfully, and feloniously steal, take, and carry, lead, drive, and entice away one hog, the personal property of one S. A. Dedman. All of which is contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Nevada.
Upon being arraigned under the foregoing indictment, the defendant at first entered a plea of not guilty.
Later, as appears from the record, the defendant with his attorney appeared in court and was permitted to withdraw his plea of not guilty and enter a plea of guilty of petit larceny.
At a later date, to wit, March 14, 1913, the following proceedings took place, as appears from the record: This being the time heretofore designated by the court for pronouncing judgment and sentence upon defendant herein, the said defendant, Alexander Dickson, being present in court and represented by his counsel, W. S. Bonnifield, Jr., Esq., who was also present, the said defendant was informed by the court of the nature of the indictment against him, charging him with having committed the crime of grand larceny, in said county and state on or about the 6th day of February, A. D. 1913, also of the nature of his plea of not guilty thereto, of the fact that on the 13th day of March, A. D. 1913, in open court, he was by permission of the court permitted to withdraw his said plea of not guilty, which plea he did then and there withdraw; of the fact that he was therefore at said last-mentioned time and place permitted to plead guilty of petit larceny, an offense necessarily included within the offense charged in the indictment, which said plea of guilty he did then and there enter; of the nature of said plea of guilty, and to the effect thereofwhereupon the said defendant was asked whether he had any legal cause to show why judgment should not now be pronounced by the court. And no legal cause appearing to the court why judgment should not be pronounced at this time, it is therefore ordered and adjudged, and it is the judgment of this court, that you are guilty of the offense of petit larceny, an offense the commission of which is necessarily included within the offense charged in the indictment, to wit, grand larceny, and it is the sentence of the law pronounced upon you by the court that for that offense, to wit, petit larceny, you be confined in the county jail of Humboldt County, Nevada, at Winnemucca, Nevada, for the term of five months. The said defendant, Alexander Dickson,
was thereupon remanded to the custody of the sheriff of Humboldt County, State of Nevada, for the serving of said sentence.
The petitioner, after serving the greater part of the time for which he was sentenced, comes to this court on petition for a writ of habeas corpus to restore him to his liberty.
Counsel for petitioner contend that the judgment and commitment in this case are void for the reason that the court was without jurisdiction to receive the plea of guilty of petit larceny, under the indictment, or to pass judgment upon the petitioner, by reason of such plea. In general, they contend that the crime of petit larceny is not included within the crime of grand larceny, as set forth in this indictment.
At common law the only subjects of larceny were tangible, movable chattels, something which could be taken into possession and carried away, and which had ...