186 P. 673 | Nev. | 1920
By the Court,
Petitioner was informed against for embezzlement. To the information a demurrer was filed which, after argument, was sustained by the court. The district attorney, anticipating the result, had prepared a new information, and at the time the demurrer was sustained asked leave of court to fine a new information, which was granted. Thereafter counsel for defendant made a motion to dismiss the information upon the ground that it had been filed without due authority of law. After argument and due consideration, the motion was denied.
“If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to be submitted to the same or another grand jury; provided, that after such order of resubmission, the defendant may be. examined before a magistrate, and discharged or committed by him, as in other cases.”
It is contended that, while the court might direct the filing of a new information, it had no jurisdiction to grant leave to the district attorney to file it. In support of the contention our attention is directed to the cases of In Re Williams, 116 Cal. 512, 48 Pac. 499, People v. Jordon, 63 Cal. 219, and People v. O’Leary, 77 Cal. 30, 18 Pac. 856.
It will be seen that the section quoted makes no allusion to situations arising because of the sustaining of a demurrer to an information, but our information act (Stats. 1913, p. 293) provides that all provisions of law applying to prosecutions upon indictments shall apply to informations, as near as may be.
The Jordon case is not in point, for the reason that the second information was filed without any order whatever having been made by the court permitting or directing the filing of the same. Nor is the O’Leary case in point, because an entirely different question was involved there than that here presented. Furthermore, it appears from the opinion in that case that “the court directed the district attorney to file a new information. * * * ” From a reading of Ex Parte Williams, we are of the
But in Ex Parte Hughes, 160 Cal. 388, 117 Pac. 437, in an opinion by Henshaw, J., who wrote the opinion in the Williams case, it was practically held that it was not a jurisdictional requirement that the court direct that a new information be filed; for it was held in that case that it was sufficient where the court said that it was of the “opinion that a new information should be filed, which would do away with the obj ection and be sufficient in all respects.” In the Hughes case the court neither granted leave to file a new information nor directed the filing of one, but merely expressed its opinion as to what should be done.
It will be noted that two of the judges expressed an opinion that the rule declared in the Williams case should have been expressly overruled. As we construe the opinion of the court, it was clearly an abandonment of
In a case in which the facts were identical with those in the Williams case, supra, the Supreme Court of Idaho (In Re Pierce, 8 Idaho, 183, 67 Pac. 316) refused to adopt the views of the California court, and the logic of the Idaho case appeals to our reason. In that case the court said:
“In the case under consideration the order which sustained the demurrer to the information granted leave to the prosecuting attorney to file a new information. This was, in effect, directing the district attorney to reconsider the matter, and if, in his judgment, it was proper to file a new information, to do so. If the petitioner had been prosecuted by indictment instead of by information, the order sustaining the demurrer to the indictment should have directed the resubmission of the case to the grand jury, but it would not have been proper for the court to have directed the grand jury to find a new indictment. The county attorney is an officer of the court, and to some extent subject to. the control of the court. We think that the order granting him leave to file a new information, whether made at his request or not, is tantamount to the resubmission of the matter to him, which is all that the statute cited supra contemplates should be done in case of an indictment to which a demurrer has been sustained; and we fail to see wherein any substantial right of the petitioner was prejudiced.”
We would feel perfectly justified in resting our conclusion upon the Idaho case, but we might say that in our opinion there is another reason why we should not follow the Williams case. As we have said; section 6 of our information statute provides that all provisions of our law applying to prosecutions upon indictment shall apply to prosecutions by information, as near as may be. While section 7101, above quoted, contemplates the filing of a second indictment, the reason which might justify us in holding that the provision as to directing the submission of the matter to the same or another grand jury
It is ordered that the petition be dismissed, the writ discharged, and that the petitioner be remanded to the custody of the sheriff.