18 P.2d 449 | Nev. | 1933
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The district court has no jurisdiction of this action, because the lower court could not render a valid judgment therein. If the lower court had no power to render a valid judgment, surely the district court, by amendment or in any manner, cannot acquire a greater *378
or different jurisdiction. When the basic instrument falls, so does the entire prosecution. The complaint in the police court was radically and fatally defective. 43 C.J. 461, 463; Wagner v. State (Neb.),
The amending of the complaint in a matter of substance was beyond the jurisdiction of the respondent court and judge. 43 C.J. 467; State v. Runnals,
Prohibition is as properly granted where the inferior court acts upon a false view of the law fixing its jurisdiction or a misconstruction of a statute conferring jurisdiction, as where it arbitrarily usurps jurisdiction in total disregard of law. Baldwin v. Cooley,
It is our contention that when the defendant fails to demur in the lower court and there is a trial de novo on appeal, the appellate court has the right to allow an amendment of the complaint or allow a new one to be filed, so long as the nature of the offense charged is not *379
changed. 43 C.J. 487, sec. 732; Salt Lake City v. Larsen (Utah),
That the court could allow an amendment is definitely decided in Ex Parte Williams,
Section 9 of City Ordinance No. 431 of the city of *380 Reno, Nevada, provides as follows: "Section 9. Intoxicatedpersons: It shall be unlawful for any person while in an intoxicated condition, or under the influence of intoxicating liquor, to ride or drive any animal, or to have charge or control of any animal or vehicle in a public street."
The petitioner seeks the writ of prohibition to prevent his trial in the district court upon the ground that said court has no jurisdiction by reason of fatal defects in the complaint. His first contention is that the complaint is fatally defective in being entitled "City of Reno, plaintiff," against the petitioner, instead of "The State of Nevada," etc. He contends also that the municipal court had no jurisdiction to render a judgment, because the complaint failed to state a public offense; hence the appellate district court acquired no jurisdiction to try him; and that the granting of permission to amend the complaint in a matter of substance was beyond the jurisdiction of the appellate court.
1, 2. It will be seen, by referring the complaint in the municipal court and the complaint as amended in the district court to the ordinance, that the amendment is one of substance. The complaint, by omitting to charge that the operation of the automobile was in a public street, failed to state an essential element of the public offense defined by the ordinance. In so far as the complaint shows to the contrary, the automobile might have been driven upon the petitioner's own premises or other places in the city of Reno than on a public street. If the public character of the place is an element of the offense defined by ordinance, the complaint should show that the place was of such a character. 43 C.J. 463. See, also, Wagner v. State,
It was held, therefore, that the information did not charge a misdemeanor.
In Re Worthington,
We are of the opinion that the complaint in the municipal court in this case did not charge an offense. This being so, could the district court acquire jurisdiction on appeal? Counsel for respondents insist that it did, because the fact that the complaint failed to state an offense did not deprive the lower court of jurisdiction, and that the district court had authority to allow the amendment by virtue of statutory provisions.
Several decisions from other jurisdictions have been cited by counsel for respondents which support his contention that the jurisdiction of a court in a criminal case does not depend upon the sufficiency of the complaint, information, or indictment, as the case may be. In regard to this point, and without undertaking to decide it, we refer to the following cases in our own jurisdiction: In Re Waterman,
3. We deem it unnecessary to determine the questions, for we are of the opinion that if, under the circumstances of this case, the district court has no jurisdiction, the remedy of habeas corpus is available to petitioner. Ex Parte Greenall,
The writ of prohibition should be denied. The alternative writ of prohibition heretofore issued in this case is vacated, and the peremptory writ asked for denied.
Addendum
Rehearing denied.