Frost v. Sheriff, No. 11899

No. 11899 | Nev. | Nov 13, 1979

OPINION

Per Curiam:

In this appeal from an order of the district court denying his pretrial petition for a writ of habeas corpus, Kelly Frost contends the indictment charging him with murder (NRS 200.010; NRS 200.030), attempted robbery with the use of a deadly weapon (NRS 200.380; NRS 208.070; NRS 193.165), and burglary with the use of a deadly weapon (NRS 205.060; NRS 193.165) must be dismissed because (1) illegal evidence was used to obtain the indictment, (2) the grand jury system is unconstitutional, and (3) insufficient evidence was presented to the grand jury to support the charge of burglary with the use of a deadly weapon.

Evidence presented to the grand jury indicates that Frost and two confederates engaged in a plan to rob Billie Ray Tyner of marijuana and money. Frost and his confederates drove to Tyner’s apartment and Frost and one of his companions entered the apartment while the other companion waited outside in the car. In the attempted perpetration of the robbery inside the apartment, Frost shot and killed Tyner.

All contentions herein raised by Frost are without merit, except his challenge to the burglary charge. As to that, we reverse the order of the district court insofar as it relates to the allegation that a deadly weapon was used in the commission of the burglary, since it appears from the grand jury transcript that the burglary was complete upon entry of the apartment and, therefore, could not have been perpetrated with the use of a deadly weapon. Carr v. Sheriff, 95 Nev. 688, 601 P.2d 422 (1979).

In all other respects the order below is affirmed.