12 Nev. 219 | Nev. | 1877
By the Court,
In January, 1874, the petitioner was convicted of a felony in the district court for Lander county, and is now confined in the state prison under sentence pronounced upon that conviction.
The time within which he might have appealed from the judgment having elapsed, he presents this petition for a writ of certiorari, commanding the district court to certify its proceedings on the trial of the indictment.
It appears from the petition and accompanying affidavit that when the petitioner was arraigned in the district court he stated that he was too poor to employ counsel; that the judge requested every member of the bar present in court to act as his counsel, but that they each and all declined to do so, and that a gentleman, not a licensed attorney, was then appointed and induced by the court to aid the prisoner in his defense. A plea of not guilty was thereupon entered and the case set down for trial. On the day appointed for 'the trial, the petitioner filed an affidavit, and moved for a continuance on the ground of absence of material witnesses, and this motion being overruled, objected to any further proceedings in the case until he could procure the assistance of professional counsel. The court, however, ordered the trial to proceed, with the result above stated.
It is alleged that the district court grossly abused its discretion, and did not regularly pursue its authority in overruling the motion for a continuance, and requiring the trial to proceed without providing the petitioner or giving him a further opportunity to provide himself with sufficient counsel.
The question to be decided is whether these are sufficient grounds to authorize the issuance of the writ of certiorari. It is objected in the first place that the petitioner might have appealed from the judgment, and that the fact that the time within which he might have appealed has elapsed does not make this a case in which there is no appeal. But to
The statute says: “The writ shall be granted in all cases when an inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal,” etc. (Sec. 1497.)
“The review upon this writ shall not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.” (Sec. 1503.)
This being the rule by which we are bound, it is plain that we have no power to reverse or annul the judgment of the district court in the proceeding which we are asked to review unless that court either exceeded its powers or (which is in reality the same thing) departed from the forms prescribed to it by law, and it is equally plain, upon the petitioner’s showing, that the court did neither. The court had jurisdiction of the case and of the petitioner, and its judg