Platt & Sanford, for Petitioner.
Geo. B. Thatcher, Attorney-General, and J. E. Campbell, District Attorney, for Respondent.
By the Court, Norcross, C. J.:
This is an original proceeding in habeas corpus. It appears from the return of the sheriff of Lyon County, who is charged in the petition with the unlawful detention of the petitioner, that on the 9th day of October, 1914, in the district court in and for Lyon County, the grand jury returned an indictment against petitioner; that thereafter and on the same day, upon motion of the district attorney, the said indictment was ordered dismissed, upon the ground that a clerical error appeared therein, and it was further ordered that the grand jury reconvene at the hour of 11 o'clock a. m. of said day; that thereafter and on the same day the grand jury
returned a second indictment against the petitioner, which was substantially in the same form as the first indictment, except that in the second indictment the name of the petitioner was inserted in a blank space where it evidently had been omitted through inadvertence in the preparation of the first indictment; that thereafter, and on the 10th day of October, 1914, petitioner interposed a plea of not guilty to the said indictment; that thereafter, and on the 15th day of December, 1914, the case coming on for trial in accordance with the previous setting, and before the beginning of the trial, counsel for defendant, petitioner herein, moved the court to withdraw the plea of defendant in order to permit counsel to both demur to the indictment and to interpose a motion to quash the same.
The certified copy of the minutes of the court filed by petitioner does not show that any order was entered permitting the plea to be withdrawn, but the minutes do show that counsel proceeded with the argument of the demurrer and the motion to quash, and that thereafter and on the same day the court ordered that the demurrer be overruled and the motion to quash denied, to which orders counsel for defendant were given the benefit of an exception. Upon the following day it appears from the minutes of the court that counsel for the defendant were permitted to resume further argument upon the motion to quash, and the same was thereafter taken under advisement until 1 o'clock p. m. of that day; thereafter and on the same day, and before any further order was made by the court upon the motion to quash, the district attorney made the following statement and motion:
After having examined the records of the stenographer taken at the time that this second indictment was returned by the grand jury, and prior thereto, I am convinced that the order for resubmitting the same to the grand jury after the dismissal of the first indictment was not in fact made, and that the resubmission was an informal submission, and sufficiently informal that it didn't comply
with the letter of the statute, although the record shows the reconvening of the grand jury, and, not desiring to carry this case into the supreme court, and through interminable litigation, I ask at this time, and I therefore move the court to dismiss the present indictment against this defendant, Wesley Hironymous, and enter its order resubmitting the same to the grand jury of Lyon County, next to be convened.
To the foregoing statement and motion the minutes of the court show that counsel for defendant replied: We do not desire at this time to interpose any objection to your honor quashing this present indictment, but for the purpose of preserving the record, we desire to interpose an objection to the court resubmitting the case again for the consideration of the grand jury. The ground of objection being that the present order of resubmission, if made, must be predicated upon a proper basis of dismissal of the original indictment, and order a resubmission upon that, and the fact that the second indictment was brought without an order of resubmission after the dismissal of the first indictment destroys the foundation for an order of resubmission at the present time.
The court thereupon ordered that the case be dismissed, upon motion of the district attorney, and the court now orders that the matter be resubmitted to the present or a future grand jury to be drawn in Lyon County. Thereafter, and on the 13th day of January, 1915, the following order was entered:
It appearing to the court that the defendant has been held to answer in the above-entitled case, * * * and that the charge pending against him as yet remains undisposed of, it is ordered that the district attorney proceed at once to make a full examination of said charge, and take such steps towards prosecution, either by indictment or by information, as he may deem advisable in the premises, and that any previous order of this court, in so far as it conflicts with this order, be and the same is hereby vacated and set aside.
That thereafter, and on the 2d day of ...