GARDNER v. STATE, 93 Nev. 556 (1977)

571 P.2d 108

JOSEPH GARDNER, APPELLANT AND CROSS-RESPONDENT, v. SHERIFF, CLARK COUNTY, NEVADA, RESPONDENT AND CROSS-APPELLANT.

No. 10204Supreme Court of Nevada.
November 16, 1977

Appeal from Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge

Larry C. Johns, Las Vegas, for Appellant and Cross-Respondent.

Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and L.J. O’Neale, Deputy District Attorney, Clark County, for Respondent and Cross-Appellant.

OPINION
Per Curiam:

An indictment filed in the Eighth Judicial District Court, Clark County, charged Joseph Gardner with (1) perjury (a felony under NRS 199.120); and, (2) failure to report child abuse (a misdemeanor under NRS 200.502 and NRS 200.507). Gardner challenged the indictment with a pretrial petition for a writ of habeas corpus. At the conclusion of the

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hearing habeas was granted on the perjury charge and denied on the failure to report child abuse charge. Both sides have appealed.

1. The record is barren of any evidence to support the perjury charge. Therefore, we perceive no reversible error in the district judge’s determination to grant habeas on that charge. NRS 172.155.

2. The record is also barren of any evidence to support the misdemeanor charge against Gardner; thus, the district judge should have granted habeas on that count. NRS 34.390.[1]

Accordingly, on Gardner’s appeal from the order denying the habeas corpus challenge to the misdemeanor count, we reverse. On the state’s cross-appeal from the order granting habeas corpus on the felony count, we affirm.

[1] In view of our disposition of the case it is unnecessary to either comment on or consider the district court’s failure to forward the misdemeanor indictment to a justice court, as contemplated by NRS 172.285(1)(b). See NRS 4.370(3)(c), which grants the justice court jurisdiction to try “all misdemeanors.”Cf. State of Nevada v. Rising, 10 Nev. 97 (1875).