Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-02-08
eEiaINAL PROCEEDING. APPLICATION
FOB WRIT oil AREAS CORPUS.
5. Truman. for petitioner


The petitioner applied to this court for
4 writ of habeas corpus which was grant
I'd. 1t appears that he is held in custody
ny the Sheriff Of Humboldt County, by
virtue OF a commitment, issues from 4
Justices court, based on a judgment of
that court, which in effect requires the
petitioner to enter into bono to keep the
peace, etc, and in case of tuilure to give
the said bond, that he be imprisoned III
the county Jail of said county for the pc
rod of fifty days.
He alleges by his petition that the lille
gaIity OF his restraint consists of this. to
wit: First. That the jurisdiction of the
Justices court has been exceeded. Sec
nn0. That the commitment was issued
in a case not allowed by law. Third.
That the judgment upon which the com
mitment issued is not authorized by any
provision of law.
The ot1ense charged in the complaint
laid before the Justice is the common law
ntfense of fOrcihle entry. Counse con
tends, substantially, that torCible entry i
not \ public otfense punishable under thu
criminal laws Of this State: that a statute
of his State gives the aggricved party Il
civil remedy, and the Legislature having
thus acted on the subject of forcihle entry
and detainer, the civil action has super
seeded the common law remedy. and that
no such crime as fOrcible entry is desig-
mated by the criminal laws of this STATE.
nor any other punishment permitted nor
Intended except such as is provided i'll
the Act of 1865, concerning forcible en-
tries and unlawful detainers.
We cannot agree with counsel in his
contention. Section Isl of the Act con-
corning crimes and punishments pro
yides: All offenses recognized by the
common law, and not herein enumerated
shall be punished in case of ~felonies, by
imprisonment in the state prison for 4
term not less than one year nor more thar
five years, and in case of misdemeanors
by imprisonment in the county Jail for &
term not exceeding six months or less
than one, or by fine not exceeding five
hundred dollars. or by both. > **
The crime of forcible entry is not emu
merated in said act. But it is a misde
meanor as recognized by the commol
law. 2 Bish. New Grim. Law, Sec. ~,
Harding's case, | G~reenleaf, %; 4 Black
stone, l4S.
An Act concerning forcibla entries an
detainers has not abolished or repeale'
the common law upon this subject.
Cruiser VS.. State. Is New Jersey, 30G.
The New Jersey Act is substantiall
the same as ours.
In the above case Cruiser was charge
as by the common law Of the otienSe {
forcible entry and detainer. there beint
no criminal statute in that state for pun
ishing such offense.
We conclude from the provisions of on
crimes act above referred to and the al
thorities above cited among others, TIL:
the offense of a forcibie entry is punisht
bic as a misdemeanor by fine or impri,
onment or both, as provided by said Sc
! 15l.
But we are of opinion that the juds
ment given in this case by the Justice
/: court is not authorized by wv. Und,
' the charge made by the complaint IL
court had no authority to require the d,
/ PENDANT to give bonds to keep the peac
! nor in default thereof to adjudge that J
be imprisoned. TIL complaint was u
! made under the provisions Of the Grim
| nal procedure for the prevention of PIT,
iic %offenses, but it is a complaint allegis
the commission of certain unlawful a.
which under the common law constitl1
= the ot1ense of forcible entry, and Il
which said Sec. Isl provides the punisI
ment.