32 Nev. 346 | Nev. | 1910
By the Court,
This is an application for a peremptory writ of prohibition against the District Court of the Seventh Judicial District of the State of Nevada, in and for Esmeralda County, and Hon. Peter J. Somers, judge of said court, to restrain and prohibit the said respondent from proceeding or taking any further action- upon certain indictments pending in said court against the relator, Bart Knight.
The contentions of petitioner, as raised by his plea in abatement, and which are interposed in this court in justification of his right to the issuance of the writ prayed for, are as follows: First, that, complaints having been filed before a magistrate, the grand jury was without jurisdiction to investigate the matters involved in those complaints during the pendency, and before the determination of the issue of probable cause before the magistrate, and that the procedure in the State of Nevada, while permitting the presentation of a charge of crime before a grand jury, contemplates and requires that, when an investigation before a magistrate is initiated, it must be concluded, and until it is concluded the grand jury cannot consider it; second, that in the case presented by the petitioner the plea in abatement in the district court discloses that the action of the district attorney and the justice of the peace in not proceeding with the matter vitiates the indictments found by the grand jury, for the reason that they are irregular, and not found in accordance with law.
After a very careful examination of the law cited by counsel in behalf of petitioner, in support of his contentions, and a due consideration of the very able and eloquent appeal in behalf of his client, we are of the opinion that his contentions are not sufficient to warrant this court in intervening in this proceeding by the issuance of a writ of prohibition. While we agree with counsel for petitioner that a person accused of and arrested for crime is entitled to a prompt examination, and that his substantial rights must be protected at all times, and that his examination should not be unnecessarily delayed to suit the accommodation or convenience of the officers of the law, still we are of the opinion that the grand jury are authorized, under the law in this state, to indict a person accused of crime, notwithstanding that the case may be pending on preliminary examination before a justice of the peace. (Comp. Laws, 4167.) The law is well established that the grand jury may investigate and indict one charged'with a felony, although
The grand jury has unquestioned power to investigate any criminal offense and find an indictment without any previous preliminary examination of the accused; and, even when a preliminary examination of an accused person is pending, the grand jury has full power to make inquiry and find an indictment against such person, notwithstanding such preliminary examination. No matter what the action of the justice of the peace may be in his determination of the preliminary examination, his action cannot relieve the grand jury from their bounden duty, or deprive them of their right to investigate and act upon the charges against the accused, and under no circumstances can an examination before a justice of the peace divest the grand jury of their power to investigate the charge against the accused. (17 Am. & Eng. Ency. Law, 1280; State v. Whalen, 148 Mo. 286, 49 S. W. 989; State v. Gieseke, 209 Mo. 331, 108 S. W. 525; State v. Bringer, 42 La. Ann. 1091, 8 South. 279, 10 L. R. A. 137; State v. Jeffries, 210 Mo. 302, 109 S. W. 615; People v. Horton, 4 Parker, Cr. R. (N. Y.) 212; People v. Hafferman, 5 Parker, Cr. R. (N. Y.) 393.)
The indictment being regular on its face, and the district court having jurisdiction of the person named in the indictment, this court will not intervene by writ of prohibition, as relator appears to have another remedy, even conceding any errors were committed. Plowever, believing as we do, that the plea in abatement was properly overruled, it is not necessary to further consider any of the other points urged in the petition. (Ex Parte Easton, 95 U. S. 77, 24 L. Ed. 373; Fraser v. Freelon, 53 Cal. 644; Walcott v. Wells, 21 Nev. 47, 9 L. R. A. 59, and notes p. 60, 37 Am. St. Rep. 478; 16 Ency. Pl. & Pr., p. 1128; Bell v. District Court, 28 Nev. 280, 1 L. R. A. 843, 113 Am. St. Rep. 854.)
The application for the writ is denied.