Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-03-10

convict and punish for certain Grimes |
tnAt il nece@ sarily has the jurisdiction /
over IL subject matter in particular
case. The exercise Of jurisdiction in /
this and all eases of felony depends upon
cc-t'in Indispensable conditions and re
qulremen,s the absence OF which rem
ders the action Of tho court not merely
irregular, erroneous and voidablc, but
absolutely void.
| by Section Y. Article I of tho Constitu-
ton il il provided in prohibitive terms,
among other matters, that "A person sha |
not DO tried for u capital or either
infamous crime t.Srrlt in certain speci-
| fled cas- - of which tho cane at bar is not
oMc) except on prcnentn,cnt or indic.-
ment of grand Jury, and that "A person
shall not hc deprived of his life, libery
or property without duo process of law,
Can it even be pretended that the court
in the face Of these direct and prnhibitive
terms OF the Constitution could render a
valid Judgment of Imprisonment for an
oifensc Of which it has jurie i,ctIrn with
| Out presentment or Indictment charging
the particular offen>'? Noult nor the
action of the court in such proceeding be
utterly void because of excess Of jur!~-
,lction and y .rause it deprives the party
of his liberty without due process OF law?
The question involved is not one of IL
regularity growing cut of rules Of pro-
cenUre, bUt is one of Sut Stantile Law
based upon the dirccr terms Of Il con-ti
tutisnal guarantee. 1t is cia;ined that
.I-
indicted, tried, convicted and sentenced
tor the crime Of n.ucler. BY supplying
prn~umptinus facts this contention is
probably correct. but the proven facts of
The record contradi.-' and impesch these
prescriptions ami show cOnrlusivelv
that the petitioner was convicted of the
crime Of rape, q crime for which he rs
neither intilc nor tried and OF which
he could not have been con- icted un Ter
the charge contained in the inui 'tin,ns.
Finally we conclude that in !,ruceed-
ing on habeaS corpus. where it Is show II
by the return that the petitioner is de-
tanned by virtue of a process issued upon
a Judgment of a competent court of
criminal jurisdiction that such showing
is prima face only of the fact and may
be attacked or impeached by the record
of the action for the purpose OF showing
such excess or want of jurisdiction Of
the court or officers rendering or issuing
the same as to make its action absolutely
void, and that whore the records shows
such excess Of jurisdiction, or such
want of jurisdiction. AS to render the
judgment or process void. the petitioner.
:. under such showing, is entitled to his
discharge.
Believing the Judgment in this case to
! be void because the court had nv jurl~-'
dicticn of the subject matter, that r., ~.
the crime for which he was convictt-t
4 for the reason that the defendant was
g nei Their indicted nor tried for the crime
Of rape, and that the execution of the
y Judgment deprives the petitioner Of hi.
r liberty without due process of law, the
/ commitment issued on said judgmen,
/ does not justify his further detention
: and he will accordingly be discharged.
We concur:
e Bonnifi cid. c. J.
Belknap, }.
Filed March 9TH, 1900.
J. EUGENE HOWELL,
d Secretary of State and EX-oilicio Clerl
e of the Supreme Court.
! Filed with printer for publication
n March :, 1900