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In Re Oxley and Mulvaney

December 31, 1915


James Dysart and J. M. McNamara, for Petitioners.

Geo. B. Thatcher, Attorney-General, for Respondent.

By the Court, Norcross, C. J.:

This is an original proceeding in habeas corpus. Upon a complaint sworn to on the 24th day of May, 1915, charging petitioners with the crime of grand larceny, petitioners were arrested, and thereafter, upon a preliminary examination held before the justice of the peace in and for Elko township, county of Elko, on the 29th day of May, 1915, petitioners were ordered discharged from custody upon the ground of insufficiency of the evidence offered to justify holding the petitioners to answer. Thereafter and on the same day, following the discharge of petitioners, a second complaint was sworn to before said justice of the peace by the district attorney of Elko County, charging petitioners with the same offense upon which the examination had previously been held and petitioners discharged. Upon a warrant issued on the complaint last mentioned petitioners were arrested and brought before the magistrate. Thereafter, and on the 7th day of June, 1915, over the objection of counsel for petitioners that the court was without jurisdiction to conduct a second preliminary examination, a preliminary examination was held before such justice of the peace, and, following the conclusion of the same on the 9th day of June, 1915, petitioners were held to answer upon the charge of grand larceny, and in the absence of bail were committed to the sheriff of Elko County, who now holds petitioners in custody upon such commitment.

It is the contention of counsel for petitioners that the commitment is void for the reason that the justice of the peace was without jurisdiction to commit petitioners upon a second preliminary examination following a discharge upon a previous preliminary examination; the offense

[38 Nev. 379, Page 382]

charged being the same in both the proceedings. It is further contended that petitioners are held without reasonable or probable cause. Section 9 of an act entitled “An act providing for the prosecution and punishment of crimes, misdemeanors and offenses by information,” approved March 24, 1913, as amended February 12, 1915, reads as follows:

“An information may be filed against any person for any offense when such person has had a preliminary examination as provided by law before a justice of the peace, or other examining officer or magistrate, and has been bound over to appear at the court having jurisdiction, or shall have waived his right to such preliminary examination. If, however, upon such preliminary examination the accused has been discharged, or the affidavit or complaint upon which the examination has been held has not been delivered to the clerk of the proper court, the district attorney may, upon affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the person or persons charged with the commission thereof, upon being furnished with the names of the witnesses for the prosecution, by leave of the court first had, file an information, and process shall forthwith issue thereon.”

[1] Unless the section of the statute above quoted provides an exclusive method of procedure in case the defendant has been discharged upon a preliminary examination, the fact that a defendant accused of the commission of a felony has been so discharged does not bar another preliminary examination upon a complaint charging the same offense. (Ex Parte Fenton, 77 Cal. 183, 19 Pac. 267; People v. Dillon, 197 N. Y. 254, 90 N. E. 820, 18 Ann. Cas. 552; Ex Parte Robinson, 108 Ala. 161, 18 South. 729; State v. Jones, 16 Kan. 608; Gaffney v. Circuit Judge, 85 Mich. 138, 48 N. W. 478; In Re Garst, 10 Neb. 78, 4 N. W. 511; State v. Munroe, 26 R. I. 38, 57 Atl. 1057; Commonwealth v. Sullivan, 156 Mass. 487, 31 N. E. 647;

[38 Nev. 379, Page 383]

Bishop's Criminal Law, vol. 1, sec. 114; 12 Cyc. 313; 17 Am. & Eng. Ency. Law, 586.)

[2] We do not think there is anything in the provisions of section 9 of the act authorizing the district attorney to proceed upon information, quoted supra, which would justify this court in construing the provisions of that section to operate to change the well-settled law that a preliminary examination, resulting in the discharge of a defendant, is not a bar to a second preliminary examination for the same offense. A preliminary examination is in no sense a trial and hence does not operate to place a defendant in jeopardy, and this is the reason assigned by the courts why a discharge upon one preliminary examination does not operate as a bar to a subsequent examination upon the same charge. A “prosecution,” as that term is technically understood in the constitution and statutes, is not instituted until an indictment or information is filed against a defendant. The object of a preliminary examination is simply to determine whether sufficient evidence exists to warrant holding the defendant to answer, either upon an indictment returned by a grand jury or information filed by a district attorney. A discharge of a defendant upon a preliminary examination has never been held to affect the right of a grand jury to proceed and indict such defendant notwithstanding such discharge. While a constitutional or statutory provision must exist to authorize a prosecution upon information, whether the defendant has or has not been held to answer, unless there is something in the statute clearly negativing the power in a magistrate to hold a second preliminary examination after a discharge upon a prior preliminary examination for the same offense, the mere fact that the statute provided a method of procedure, whereby an information could be filed against a defendant who had been previously discharged, would not, we think, operate to change the prior existing law governing such examination.

We come now to a consideration of the contention of

[38 Nev. 379, Page 384]

counsel that petitioners were held without reasonable or probable cause. The state offered the testimony of two witnesses against petitioners at the preliminary examination, but the only testimony that could be considered material was given by the witness Howard Madden. The witness Madden testified that, on or about the 10th day of May, 1915, he met the petitioners, together with one Bently, driving a team hitched to a farm wagon along the road at Town Creek, in Elko County; that traveling ahead of the team was a bunch of eight or ten cattle; that Bently requested the witness to ride in ahead of the cattle, which he did, whereupon the petitioner Mulvaney shot one of the cattle with a rifle; that the witness did not remain after the animal was shot, but rode on; that he was only present about two minutes; that he saw that the animal shot was branded with a figure “3”; that the brand belonged to Weeks; that the animal had earmarks, but he could not tell what it was; that upon the former preliminary examination he testified that he did not see any brand or earmarks on the animal killed; that the reason he so testified was because he had forgotten that he had seen such brand or earmarks, but had since remembered that he did; that one of the officers had told him he had better tell all that he knew—that he might “go the road” if he didn't tell all that he knew; that he did not remember what side the brand was on; that his brother told him to think about whether he could remember that he saw a brand or earmark on the animal killed; that he knew the animal belonged to Weeks; that he was sure of it; ...

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