H. V. Morehouse, for Petitioner.
Geo. B. Thatcher, Attorney-General, W. E. Baldy, District Attorney, and W. M. Kearney, for Respondent.
By the Court, McCarran, C. J.:
This is an original proceeding in habeas corpus. Petitioner was arrested on a warrant issued pursuant to criminal complaint filed before the justice of the peace of Carson township. Trial and conviction followed. An appeal was taken to the district court for this district, and a trial de novo and conviction resulted there.
This court is asked to release petitioner on habeas corpus on several alleged grounds, one of which we deem sufficient, namely, that the complaint upon which petitioner was tried and convicted does not state facts sufficient to constitute a public offense. It is as follows:
Personally appears before me this 14th day of April, A. D. 1917, A. Ambrose, of Ormsby County, Nevada, on oath, makes complaint, and deposes and says: That on or about the 5th day of April, A. D. 1917, in the county of Ormsby, State of Nevada, the crime of misdemeanor was committed, to wit, by Robert Schultz, who then and there did wilfully and unlawfully open, break into, interfere, and tamper with a certain ditch then and there belonging to the Mexican Dam and Ditch Company, a corporation, then and there existing under and by virtue of the laws of the State of Nevada, the said ditch being known as and called the
Mexican Ditch,' and being in Ormsby County, Nevada; and that the said Robert Schultz did then and there wilfully, unlawfully, and with intent to injure, interfere with, and break into said ditch by lowering certain water boxes and take-outs, and by placing a new water box in the said Mexican ditch and the said ditch being the property of the said Mexican Dam and Ditch Company, and being in Ormsby County, Nevada, all of which is contrary to the form of statute in such cases made and provided, etc.
The complaint in this action was laid under subdivision 1 of section 468 of the crimes and punishments act of this state (Rev. Laws, 6733). The language of the statute is as follows:
Every person who wilfully, and with intent to injure or defraud, opens, breaks into, taps, or connects with any pipe, flume, ditch, conduit, reservoir, wire, meter, or other apparatus belonging to or used by any water, gas, irrigation, electric, or power company or corporation, or belonging to or used by any other person, persons or association, or by the state, or by any county, city, district or municipality, and takes and removes therefrom or allows to be taken, removed or flow therefrom any water, gas, electricity or power belonging to another; * * * is guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment in the county jail not to exceed six months, or by both such fine and imprisonment in the discretion of the court. * * *
The act that is made criminal by subdivision 1 of section 468 of the crimes and punishments statute is the opening, breaking into, tapping, or connecting with any pipe, flume, ditch, conduit or reservoir, and the taking and removing therefrom, or allowing to be taken or removed therefrom, any water belonging to another. It is not the mere opening, breaking into, tapping, or connecting with any pipe, flume, ditch, conduit, or reservoir that constitutes the crime sought to be established by the
statute. The taking or removing of water belonging to another from the pipe, flume, ditch, conduit, or reservoir, or the act of allowing the same to be taken or removed, is the all-essential element which the statute declares to be of the gravamen of the crime. A crime under this section is not alleged unless the complaint asserts the act of opening or breaking into or tapping or connecting, coupled with the act of taking or removing or allowing to be removed, the specified thing, whether it be water, gas, electricity, or power, belonging to a person other than the party charged. The complaint here fails to measure up to this test. It charges that:
Robert Schultz * * * did wilfully and unlawfully open, break into, interfere and tamper with a certain ditch, * * * and that the said Robert Schultz did then and there wilfully, unlawfully, and with intent to injure, interfere with and break into said ditch by lowering certain water boxes and take-outs, and by placing a new water box in the said Mexican ditch.
Nowhere does the complaint, either directly or inferentially, allege the taking or removing of water belonging to another. Nowhere does it allege the act of allowing the water of another to be taken, removed, or to flow from the ditch. It is not the act of breaking into or interfering or tampering with a ditch, or the lowering of water boxes and take-outs, or the placing of new water boxes that constitutes a crime under this statute. These acts constitute but a preliminary part of the statutory offense. To ...