Augustus Tilden, for Petitioner.
Geo. B. Thatcher, Attorney-General, and Thos. E. Powell, District Attorney of Humboldt County, for Respondent.
By the Court, Sanders, J.:
This is an original proceeding in habeas corpus.
The petitioner, A.G. Crane, was jointly indicted with H. H. Dunbar by the grand jury of Humboldt County for the crime of obtaining money by false pretenses. In execution of judgment and sentence he was committed to the custody of the sheriff of Humboldt County, and now asks his release by a writ of habeas corpus. In his petition he alleges that his imprisonment and restraint are illegal in this:
That said indictment does not state facts sufficient to constitute a public offense. That if said indictment states facts sufficient to constitute a public offense the same was and is a misdemeanor of which the justice's court had and has exclusive jurisdiction, and of which neither said grand jury nor the said district court had or has jurisdiction. It is also stated in said petition:
That petitioner has not first applied to said district court for such writ for the reason that the objections to said indictment hereinabove specified were presented to said district court in the course of petitioner's said trial, upon an objection made by petitioner to the admission of any evidence under said indictment, and was by the said court passed upon and overruled.
1. The indictment is quite lengthy and contains more than is necessary to state the offense sought to be charged, and more by way of description of the offense than is required by the statute (Rev. Laws, 6704).
The indictment must be direct and contain * * * the particular facts of the offense charged so far as necessary to constitute a complete offense, but the evidence tending to prove the charge need not be stated. (Rev. Laws, 7052.)
As the law does not require the superfluous circumstances to be alleged, so, although they have been improvidently stated, the law, in furtherance of its object, will reject them as mere surplusage, and will no more regard them than if they had not been alleged at all. (Starkie on Ev. 9th ed. 569.)
Applying this rule, and eliminating from the indictment all useless and redundant matter, and considering the averments together, and their legal effect, the indictment states a public offense.
2. Whether the offense charged be a felony or a misdemeanor is to be determined by the statement of the facts constituting the offense and the language employed. (State v. Anderson, 3 Nev. 254.)
3. Counsel for petitioner claims that the indictment shows the transaction complained of to be between A. G. Crane, president, and H. H. Dunbar, general manager, of the Interstate Life Insurance Company of Nevada, a corporation, and the prosecutrix, Lena Scott, and further shows that in the course of the transaction, in order to induce the prosecutrix to become a shareholder in the company, the said Crane and Dunbar jointly and severally made certain false statements, known to be false, of and concerning the affairs, status, and financial condition of the said corporation. It is urged that the offense thus stated comes within the purview of section 73 of the general incorporation law, being section 1174, Revised Laws, and is therefore punishable as a misdemeanor. Section 73 is as follows:
Any person who, being a director, manager or officer of any corporation or body corporate or company, shall make, circulate or publish, or concur in making, circulating or publishing, any written statement or account which he shall know to be false in any material particular, with intent to deceive or defraud any member, shareholder or creditor of any such body corporate, corporation or company, or with intent to induce any person to become a shareholder therein, or to intrust or advance any property to such ...