Warden, Nevada State Prison v. Shuff

541 P.2d 1105, 91 Nev. 719, 1975 Nev. LEXIS 756

• Court: Nevada Supreme Court
• Decided: November 4, 1975
• Docket: No. 8361
• Status: Published

Opinion

OPINION

Per Curiam:

Henry E. Shuff, convicted of murder in the second degree by a Clark County jury, was, on November 3, 1969, sentenced to a twenty (20) year term in the Nevada State Prison. His conviction was affirmed in Shuff v. State, 86 Nev. 736, 476 P.2d 22 (1970).

In March 1975, Shuff petitioned for habeas corpus (post-conviction) relief in the First Judicial District Court, Carson City, contending his conviction must be set aside because of an infirmity in the information upon which he was tried and convicted. The district judge, relying on our decision in Simpson v. District-Court, 88 Nev. 654, 503 P.2d 1225 (1972), voided Shuffs conviction because the information did not “specify the means by which the crime was committed.”

Effectiveness of the district judge’s order was deferred, if the state appealed, which it did.

Appellant contends the district judge’s reliance on Simpson was misplaced and we are, therefore, compelled to reverse. We agree.

In Simpson we ruled that “. . . when an accused proceeds to trial without challenging the indictment ... he should not be heard to complain if the indictment, with the Grand Jury transcript, gave notice of what later transpired at trial; . . .” 88 Nev. at 661, 503 P.2d at 1230. This language is equally applicable to an information and the transcript of a preliminary examination. Here, it appears from the record that Shuff had pulled a knife from his pocket and thrust it into the victim’s throat.

Since Shuff chose to go to trial without challenging the information and he neither raised the issue during trial nor on his appeal, he is proscribed from bringing the challenge at this late date. Simpson, supra. Cf. NRS 177.375(2).

Reversed.