No. 2423 | Nev. | Apr 15, 1920
Lead Opinion
By the Court,
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
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.
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.”
“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" court="Conn." date_filed="1856-02-15" href="https://app.midpage.ai/document/state-v-miller-6576983?utm_source=webapp" opinion_id="6576983">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. '
Rehearing
On Petition for Rehearing
Rehearing denied.