Arascada v. Sixth Judicial District Court of the State of Nevada ex rel. County of Humboldt

189 P. 621, 44 Nev. 37

• Court: Nevada Supreme Court
• Decided: April 15, 1920
• Docket: No. 2423
• Status: Published

Opinions

By the Court,

Coleman, C. J.:

This is an application for a writ of prohibition to prevent the destruction of certain liquors, pursuant to an order made by the respondent court in a criminal action pending therein, wherein petitioner was convicted of violating the prohibition statute. Upon arraignment petitioner demurred to the indictment upon the ground that it is duplicitous. The court overruled the demurrer; whereupon petitioner entered a plea of not guilty, and upon the trial was convicted.

Pursuant to section 11 of the prohibition act (Stats. 1919, p. 1), the court ordered that certain liquors which were found upon the premises described in the indictment be destroyed, and appointed respondents Springer and Brady to destroy them.

1. In an opinion this day filed in the habeas corpus proceeding wherein petitioner herein was the petitioner, we held adversely to certain contentions therein, which went to the constitutionality of the act in question. In this proceeding it is conceded that the question now urged is not such a jurisdictional one as would entitle petitioner to be discharged on habeas corpus, but one which justified the writ sought. It is a well-established rule in this state that the writ of prohibition will- issue only in urgent cases, and will not issue at all if the court sought to be restrained- had jurisdiction to hear and determine the matter under consideration. Walcott v. Wells, 21 Nev. 47, 24 Pac. 367; 9 L. R. A. 59; 37 Am. St. Rep. 478; Low v. Crown Point, 2 Nev. 75.

It is said that the indictment was duplicitous, and that, this question having been raised by demurrer, the court had jurisdiction only to sustain the demurrer, and, having ruled erroneously thereupon, was ousted of jurisdiction to proceed to a trial of the case upon the merits.

• The petition for the writ alleges, among other things, that upon the trial of petitioner he—

“was found guilty of the offense of keeping intoxicating liquors in a building owned and used by the defendant as a place where soft drinks are sold; or was found guilty of the offense of keeping liquors for sale — of which offense he was found guilty petitioner has no knowledge.”

2. We do not concede that the indictment complained of is duplicitous (State v. Burns, 25 S. D. 364, 126 N. W. 572), but we do not deem it necessary to decide that question, for the reason that it appears from the petition that petitioner was convicted of one offense only; and, this being true, if there was a defect it was cured by the verdict. 1 New Bish. Crim. Prac. sec. 443. In State v. Merrill, 44 N. H. 625, it is said :

“But it is held that duplicity in an indictment, whether in the same count or different ones, will be cured by a verdict of guilty as to one of the offenses, and not guilty as to the other. Wharton, Am. Cr. Law, 98; Arch. Cr. Pl. 50.”

In State v. Miller, 24 Conn. 522, the court says:

“It is further claimed that the complaint is bad for duplicity. Without expressing any opinion whether there be ground for this objection, we are satisfied the objection comes too late after the verdict. * * * But it is extremely doubtful whether it can be made the subject of a motion in arrest of judgment, or of a writ of error, and it is cured by verdict of guilty as to one of the offenses, and not guilty as to the other, and the present case is that precisely.”

See, also, 22 Cyc. 404, 7.

For the reasons given, it is ordered that the alternative ’writ issued herein be quashed, and that these proceedings be dismissed. '