Woofter v. Kelly

526 P.2d 337, 90 Nev. 345, 1974 Nev. LEXIS 390

• Court: Nevada Supreme Court
• Decided: September 23, 1974
• Docket: No. 7575
• Status: Published

Opinion

OPINION

Per Curiam:

By complaint filed in the Justice’s Court of North Las Vegas Township, the State attempted to charge certain defendants with grand larceny, murder of a peace officer, and first degree murder. The respondent justice of the peace held defendants to answer on the grand larceny count, but refused to hold them on the murder counts as alleged in the complaint. Instead, the magistrate purported to hold defendants on a charge of “second degree murder,” and in effect purported to discharge them from the complaint insofar as it charged them with any higher degree of murder.

By alternative petition for writ of mandamus or certiorari, the State has therefore sought to challenge the magistrate’s refusal to hold the defendants for trial on the murder charges as alleged, contending that the magistrate’s ruling was without or in excess of his jurisdiction. Numerous arguments are proffered in support of this contention; however, we conclude it is unnecessary to treat them.

Neither certiorari nor mandamus may issue, if the State has a plain, speedy, and adequate remedy in the ordinary course of law, so that it may proceed on the murder charges in the form the State deems proper, and on which the magistrate would not permit it to proceed. NRS 34.020(2); NRS 34.170. In facts like those of this case, such remedies appear available, e.g. by way of information filed pursuant to NRS 173.035(2), or by grand jury indictment, Tellis v. State, 85 Nev. 557, 459 P.2d 364 (1969).

The petition herein is therefore denied.