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State v. District Court

December 31, 1918

THE STATE OF NEVADA, EX REL. JOHN ESSER, PETITIONER, V. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF NYE, AND THE HON. MARK R. AVERILL, JUDGE OF SAID COURT, RESPONDENTS.


Thomas & Ham, Charles E. Barrett, and C. L. Richards, for Petitioner.

H. H. Atkinson, District Attorney, for Respondents.

By the Court, McCarran, C. J.:

This is an original proceeding in prohibition. The petitioner, John Esser, was informed against by the district court of Nye County, the information reading as follows:

“That John Esser, on or about the 12th day of March, 1917, * * * did then and there commit the following felony, to wit: That then and there the said John Esser did feloniously steal, take, and carry away nine head of cattle, then and there not the property of the said John Esser, but then and there the property of L. P. Kimball and E. S. Van Dyke, against the peace and dignity of the State of Nevada.”

Our statute provides (Rev. Laws, 6640; section 375, Crimes and Punishments Act):

“Every person who shall feloniously steal, take and carry, lead, drive, or entice away any horse, mare, gelding, colt, cow, bull, steer, calf, mule, jack, jenny, or any one or more head of cattle or horses or any sheep, goat, hog, shoat, or pig, not his own property but belonging to some other person; * * * shall be deemed guilty of grand larceny, and upon conviction shall be punished by imprisonment in the state prison for any term not less than one year nor more than fourteen years.”

It appears that in the justice court the petitioner and one Joe May had been jointly charged with the crime

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of grand larceny, in which charge it was alleged that they did steal, take, and drive away nine head of cattle or more, the same being the property of L. P. Kimball and E. S. Van Dyke. Separate informations were filed against May and Esser in the district court. On the trial of May, the state called the petitioner, Esser, as a witness, and he was interrogated and examined in behalf of the prosecution.

Petitioner contends that this court should interfere by way of prohibition, and rests his contention upon several grounds: First, that the district attorney had no power or authority to file an information in this court against this defendant, for the reason that such information was filed for a purported violation of section 6640 of the Revised Laws of Nevada, the same being a purported act of the legislature of the State of Nevada, whereas they contend this act of the legislature was never approved or passed by the legislature of the State of Nevada. Second, that the said section 6640 of the Revised Laws of Nevada was never passed by the legislature of this state, and, if passed, is in violation of section 17 of article 4 of the constitution of Nevada. It is asserted that this statute was never published as provided by law. Further, it is contended that the information is too indefinite and uncertain, the word “cattle,” as used in the information, including quadrupeds of all description, such as horses, mares, cows, steers, sheep, and other animals. Again, it is contended by petitioner that, inasmuch as he was called as a witness by the prosecution against Joe May, he became then and there discharged from the charge against him. It is also contended that the district court had no power or authority to permit the district attorney to file an information in that court until a preliminary trial and hearing or examination had been accorded to the petitioner. By section 4 of chapter 209, Statutes of 1913, it is provided that the information shall be sufficient if it can be understood therefrom:

“That the act or omission charged as the offense is

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clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”

Paragraph 7 of the same section provides that the information shall be sufficient if it can be understood therefrom:

“That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

Keeping these provisions in mind, we inquire as to the sufficiency of the information, in view of the fact that the cattle alleged to have been stolen are described ...


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