Ex Parte LEO BUNCEL
Ex parte Buncel
Ex Parte LEO BUNCEL.
[No. 1594.]
Ex Parte LEO BUNCEL.
Criminal Law — Arson—Affidavit for Arrest — Sufficiency—Information and Belief. Under Comp. L. 1900, see. 4073, providing that, when a complaint is laid before a magistrate of the commission of a public offense, he must examine on oath the complaint, etc., provided, if a complaint by proper affidavit setting forth the nature of the charge and the facts within the knowledge, information, or belief of the party making the same, be filed with the magistrate, and it sufficiently appears that an offense has been committed by some person, known or unknown to the affiant, triable within the county, the justice may issue a warrant of arrest, an affidavit charging a person with the crime of arson on information and belief of the affiant, and stating the facts constituting the oifense, is sufficient to authorize the issuance of a warrant.
Original proceeding. Application by Leo Buncel for a ■ writ of habeas corpus to W. H. Mclnnis, Sheriff of Washoe County.
Writ denied.
The facts appear in the opinion.
E. E. Copeland, for Petitioner.
W. D. Jones, Attorney-General, and E. L. Williams, District Attorney, contra.
Per Curiam:
The application of the petitioner charges that he is unlawfully imprisoned and restrained of his liberty by W. H. Mclnnis, sheriff of Washoe county, Nevada, in the county jail of said county. The illegality of such imprisonment is said to consist of his arrest by virtue of a warrant issued by a justice of the peace upon a charge of arson based upon an affidavit or complaint charging the applicant with the crime of arson upon information and belief of the party making the same.
The affidavit, in effect, charges Leo Buncel, on information and belief, with having, at the county of Washoe, State of Nevada, on the 2d day of September, 1900, committed the crime of arson, to wit: that said applicant, in the daytime, then and there unlawfully, feloniously, and maliciously did burn a certain building known as the "Bottling Works of the Washoe Brewery," of the value of more than $50, the property of the estate of Samuel W. Bowman, deceased.
The applicant contends that this affidavit was insufficient, under our statute, to authorize the issuance of the warrant for the arrest of the defendant, and therefore in excess of jurisdiction. Certain decisions of 'the Supreme Court of California are cited in support of this contention, but we do not regard them as controlling the matter, because of the very marked difference between the California statute and our statute regulating these proceedings.
By section 103 (Comp. L. 1900, sec. 4073) it is provided that, when a complaint is laid before a magistrate of the commission of a public offense triable Avithin the county, he must examine on oath the complainant or prosecutor, and any witness he may produce, and may require their depositions to he reduced to Avriting, and subscribed by the parties making them, if the magistrate deem it advisable; provided, if a complaint by proper affidavit setting forth the nature of the charge and the facts within the knowledge, information, or belief of the party making the same, be filed with the magistrate, and it sufficiently appears that an offense has been committed by some person, known or unknown to the affiant, triable within the county, the justice may issue a warrant of arrest.
The proviso of the above section is not found in the California statute. This proviso authorizes the issuance of a warrant upon the complaint made upon information and belief. The nature of the charge and the facts constituting the same sufficiently appear in the complaint.
The defendant will therefore be remanded to the custody of the sheriff for such further proceedings before the magistrate as the law may authorize.