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Ex Parte Rovnianek

October 1917


Ayres & Gardiner, W. W. Griffin, and Augustus Tilden, for Petitioner.

Edward T. Patrick, Deputy Attorney-General; Wm. McKnight, Deputy Attorney-General, and R. M. Gibson, for Respondent.

By the Court, Coleman, J.:

This is an original proceeding in habeas corpus.

The return to the writ shows that the petitioner is held in custody by John T. Burke, as the duly appointed and constituted agent of the State of Pennsylvania, by reason of a certain executive warrant issued by the governor of this state, upon the requisition of the governor of the State of Pennsylvania, based upon three indictments returned against the petitioner by the grand inquest of Allegheny County, Pa.

The point which is urged in behalf of respondent is that each of the indictments charges a crime within the meaning of article 4, section 2, subdivision 2, of the constitution of the United States. Since the three indictments are, in legal effect, substantially the same, we will, in considering the matter, confine ourselves to one of them. Omitting the formal parts it reads:

“* * * P. V. Rovnianek, * * * being then and there an officer of a certain private bank known as P. V. Rovnianek & Company Bank, unlawfully did then and there take and receive the sum of $55, lawful money of the government of the United States from one John Dzurniak as a deposit in said bank, he, the said P. V. Rovnianek then and there knowing that the said P. V.

[41 Nev. 141, Page 144]

Rovnianek & Company Bank was at the time insolvent, with the intent in him, the said P. V. Rovnianek, to fraudulently embezzle the said sum of $55 lawful money as aforesaid.”

Great reliance is placed by counsel for respondent upon the case of Pierce v. Creecy, 210 U. S. 387, 28 Sup. Ct. 714, 52 L. Ed. 1113, and our attention is especially called to certain language used by the court in that case, which we quote:

“There must be objections which reach deeper into the indictment than those which would be good against it in the court where it is pending. We are unable to adopt the test suggested by counsel, that an objection, good if taken on arrest of judgment, would be sufficient to show that the indictment is not a charge of crime. Not to speak of the uncertainty of such a test, in view of the varying practice in the different states, there is nothing in principle or authority which supports it. Of course, such a test would be utterly inapplicable to cases of a charge of crime by affidavit, which was held to be within the constitution. (In the Matter of Strauss, 197 U. S. 324, 25 Sup. Ct. 535, 49 L. Ed. 774.) The only safe rule is to abandon entirely the standard to which the indictment must conform, judged as a criminal pleading, and consider only whether it shows satisfactorily that the fugitive has been in fact, however inartificially, charged with crime in the state from which he has fled.”

As we interpret that decision, the court held that the indictment or other paper setting forth the charge would be deemed insufficient in habeas corpus unless every element of the crime sought to be charged were alleged, for the court says:

“The indictment, whether good or bad, as a pleading, unmistakably describes every element of the crime of false swearing. * * *”

1. This is our understanding of the law; that is, if the indictment does not allege every substantial element of the crime in question, no crime is in fact charged, and hence the petitioner should be discharged from the custody of the agent of the State of Pennsylvania. In

[41 Nev. 141, Page 145]

the matter of Hyatt v. Corkran, 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657, the court said:

“As was said in Roberts v. Reilly, 116 U. S. 80, 95, 6 Sup. Ct. 291, 29 L. Ed. 544, it must appear to the governor, before he can lawfully comply with the demand for extradition, that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by an indictment or an affidavit, etc. * * *”

See, also, In Re Waterman, 29 Nev. 288, 89 Pac. 291, 11 L. R. A. n. s. 424, 13 Ann. Cas. 926.

Certainly no one can be substantially charged with a crime unless every element of the crime is stated. If one element of a crime can be omitted from the indictment, then why not every element? If this is done, can a paper indorsed “Indictment” be said to be such in the sense contemplated? It is clear, we think, that no matter how inartistically an indictment may be drawn, it may be good in a habeas corpus proceeding if it charges every element of the offense in question. On the other hand, no matter how artistically it may be drawn, if it omits a single essential element of the offense sought to be stated, it is not such a charge of a crime as will justify the remanding of the person sought to be extradited to the custody of the officer. Taking this view, we must inquire if every element of the crime sought to be charged is contained in the indictments against the petitioner. The statute under which the crime is sought to be charged reads:

“Any banker, broker or officer of any trust or savings institution, national, state or private bank, who shall take and receive money from a depositor with the knowledge that he, they or the bank is at the time insolvent, shall be guilty of embezzlement, and shall be punished by a fine in double the amount so received, and imprisoned from ...

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