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

inpe.,vh the recltaiS in the commitment,
haslng this conclusion upon the just and
logical reason that it being the office of
the writ to ascertain whether the piis-
oner is unlawfully imprisoned, there
would otherwise be no method OF show
ing the want or excess of jurisdiction in
the court rendering the judgment.
In the Matter of Devine, 81 How. Pr.
On. W 80.
In later case tbs Court Of Appeals Of
the saGe State exhaustively discusses
and reviews the principle involved and
concludes, 'If the process is valid on it's
"face it will be deemed pri ma facie legal.
land the prisoner must assume the bur
then then Of impeaching its validity by
Showing a want of jurisdiction. Error,
sirregularty. or want Of form is no OBJ
lection, nor is any defect which may be
"amended or remedied by the court from
(which it issued. If there was no legal
power to render the judgment or decree,
cor issue the process, there was no com
"petent court amt consequently no judg-
''ment or process. All Is c0rGm non
'ju7ice and void. -
People vs.. LiScoiah, so y. y. 81.
/ A very full discussion of the doctrine
will also be found in Eek Parte LANCE, IS
! Wal. ace, 1913.
/ The Supreme Court Of California has
practically held to the same effect. The
same doctrine IS held to be he law by
this court iii EX Pa,:te Winston, . Ne
vada, "A.
u,
/ the court on habeaS corpus has no power
to inquire into merc irregularities or
errors growing out Of methods of pro-
cedure which are properly renewable on
appeal. yet under d proper case it viii in
such proceedings inquire into the jlyi>
dicti"n of the court rendering the par
ticular Judgment to ascertain whether
SNch Judgment is void for want or excess
of jurisdiction aud to ascertain in like
manner whether the process issued upon
such Judgment under which the petit
Toner is held is also void
The petitioner was indicted for tho
crime of murder alleged to have been
committed in the preparation of the
crime of rape. He was tried for the
crime of murder, the jury returning a
verdict which in direct terms convicts
him of the crime of rape. The cour,
sentenced him to twenty years imrris-
Onment for the commission of the crime
Of which he had been convi ted Muir
der is defined by our statute Gen. Stats.
1879 as the unlawful killing of human
being with malice af-rethought, either
expressed or implied. The unlawful
killing may be effected by any of the
various means by which death may be
occasioned. By Section II of the Act
Gen. Stats. 45Sl) it is provided, among
other matters, that all murder which
shall be perpetrated by means Of poison.
or lying in wait, torture. or by any other
kind of willfnl, deliberate and premedi
tated killing, or which shall be commit
ted in the preparation or attempt to per
petrate any arson, rape, robbery or bur
gary, shall be deemed murder in the
first degree and shall be punished by tn,
death of the person committing.
By Section 4l2 of the Criminal Pro
cedure Gen. Stats. 1922 it is provided
that in all cases the defendant may b,
found guilty Of any otfense the commits
sion of which is necessarily included il
that with which he is charged in thu
I indictment, or may be found guilty of Al
) attempt to commit the crime charged. w,
presume the judgment of the court i'm
prisoning the petitioner was based upol
this section Of the statute. 1t is hardly
necessary to discuss the question as t
whether or not the crime Of rape i
necessarily included in the crime 0
murder. Murder is distinct class o
otfense under our law. 1t is = generi
offense. Rape is of another class
1t also is generic offense. Tn
Legislature in passing the Act max
ing all murder which shall
committed in the preparation Of arson
rape etc. murder in tho first degree, di'
net create new crime, but merely mad
distinction with a view of different d.
grees Of punishment based upon differ
ent grades Of crime. 1t was not nece:
sary at coramon law to even charge tn.
murder was committed in the perpetrs
tioa of another crime, and it was suffic
ont to charge it in the common form an
upon proof that the crime was commi
ted in the preparation of another Grim
I such proof stood in lieu Of the proof
\ malice aforethOught.
This doctrine is sustained by amp
e authority Of the courts Of other Stat
under statutes: similar to ours.
the State VS.. Meyers, 80 Me. lib, it is sa
u by the court: Tho preparation or t
attempt to perpetrats any Of the felo
" les mentioned in the statute duril
which attempt, etc. the homicide
or committed, stands in lieu Of and is t
legal equivalent of that prsmeditatit
deliberation, etc. which otherwise 8
necessary attributes Of murder in
first degree
To the same effect are the followi
e. authorities:
People VS.. Giblin, lis N. Y. 1877.
State VS.. Johnson, Y Iowa, 400.
Titus VS.. The State, N. J. L. sc.
Commonwealth VS.. Flanagan, w