# In re Murray for a Writ of Habeas Corpus

> Nevada Supreme Court · April 15, 1916 · 39 Nev. 351

URL: https://www.frixlaw.com/law-library/cases/8042236

## Case

- **Full name:** In the Matter of the Application of JOHN MURRAY for a Writ of Habeas Corpus
- **Court:** Nevada Supreme Court
- **Decided:** April 15, 1916
- **Citations:** 39 Nev. 351; 157 P. 647
- **Precedential status:** Published
- **Opinion:** Concurrence by McCarran
- **Judges:** Coleman, McCarran, Norcross
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8042236

## Opinion text

McCarran, J.,
concurring in the order:
I concur in the order, because I believe that the writ should be denied for other reasons than those set forth in the opinion of Mr. Justice Coleman.
Section 7517, Revised Laws, applicable to criminal cases appealed from the justice court to the district court, provides:
"The complaint, on motion of defendant, may be dismissed upon the following grounds:
"1. That the justice did not have jurisdiction of the offense;
"2. That more than one offense is charged therein;
"3. That the facts stated do not constitute a public offense.”
Section 7518, Revised Laws, provides:
"If the defendant does not object to the complaint for any of the causes above specified, or if his objections are overruled, he must be required to plead as to an indictment without regard to any plea entered before the justice. In other respects, the proceedings shall be the same as in criminal actions originally commenced in *358 the district court, and judgment shall be rendered and carried into effect accordingly.”
It appears from the record that after the appeal was perfected to the district court, and before proceeding to trial, the petitioner interposed and filed objections to the complaint under the provisions of sections 7517 and 7518, Revised Laws. In view of this fact, and in the light of the statute as set forth in section 7518 of the Revised Laws, can we safely say that petitioner waived his obj ection, when in due time in the district court, after appeal to that tribunal, he interposed this objection? I think not.
The case of Dowdell v. United States, cited and quoted from in the prevailing opinion, cannot be said to be in point nor an authority in this case, in view of section 7518 of our statute.
In the light of the provisions of our code, the case of Ex Parte Talley, 3 Okl. Cr. 398, 112 Pac. 36 , 31 L. R. A. n. s. 805, cannot avail to support the conclusions reached in the prevailing opinion. The Supreme Court of Oklahoma, in the Talley case, said:
"The proper and only manner to raise the question of verification is by motion to quash or set aside the information on that ground, and that if no such motion be filed and presented before pleading to the information, the defect is waived. ”
By the section of our statute quoted above, the right was specifically afforded petitioner to challenge the sufficiency of the complaint in the district court for the first time. Petitioner appears to have availed himself of this right, and interposed his objections under the sections of the statute quoted. Under our constitutional provision, the district court was the court of last resort in this case. Petitioner could not avail himself of the privilege of appeal as suggested in the Talley case.
The prevailing opinion concludes the rights of petitioner here, for the reason that, notwithstanding the fact of his having interposed his objections under section 7518 before proceeding to trial in the district court, he was guilty of *359 waiver because he failed to interpose these objections in the justice court. I am unable to see how this conclusion can be arrived at while section 7518 remains a part of our criminal procedure. There was undoubtedly ample reason for the enactment of this statute having to do with criminal cases on appeal from the justice court. A justice of the peace is not required to be, nor is he presumed to be, versed or trained in the law. The legislature, in its wisdom, provided by these statutory enactments that the complaint filed against a party in the justice court might be challenged in the district court, where the challenge was based upon grounds requiring the application of the technical rules and principles of the law. Just as the statute provides that the proceedings in the district court shall be a trial anew, so, in furtherance of that principle, it provides that these certain objections going to the legality of the proceedings might be raised for the first time on appeal in the.district court. I fear we are establishing a dangerous precedent when we hold the petitioner guilty of a waiver for not having presented his objections in the justice court. Section 7518 must be given its full force and effect, and its language is plain and unmistakable. Petitioner appears to have availed himself of the provisions of this section. As I view this statute, it was-not necessary for these objections to be raised for the first time in the justice court. Petitioner could not, in my judgment, be guilty of a waiver, when he raised his objections under the provisions of this section in the district court on appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8042236. Public record. Not legal advice.