SHERIFF v. CROSS, 88 Nev. 423 (1972)

498 P.2d 1341

SHERIFF, CARSON CITY, NEVADA, APPELLANT, v. RICHARD WAYNE CROSS, RESPONDENT.

No. 6810Supreme Court of Nevada.
July 14, 1972

Appeal from First Judicial District Court, Carson City; Frank B. Gregory, Judge.

Robert List, Attorney General, and Michael E. Fondi, District Attorney, Carson City, for Appellant.

Page 424

Gary A. Sheerin, State Public Defender, Carson City, for Respondent.

OPINION
Per Curiam:

Respondent was charged with felony battery under NRS 200.481(2)(c), and following a preliminary hearing was bound over to district court for trial. Respondent sought habeas relief in the district court, contending that the evidence adduced at his preliminary hearing was insufficient to demonstrate probable cause. The district court agreed, and ordered him discharged. The State has appealed.

None of the State’s witnesses saw respondent strike anyone during the brawl out of which the charge against him arose. The State contends, however, that evidence rejected by the magistrate would have established probable cause to hold respondent to trial, and apparently urges that the district court erred in confining itself to the record before it. Obviously, this argument urges us to depart from all orderly procedures, and to determine probable cause ourselves in the first instance, on the basis of evidence the defendant has not had the opportunity to test or rebut.

If the District Attorney feels he has sufficient evidence to proceed, he has avenues to do so. Cf. Martin v. Sheriff, 88 Nev. 303, 496 P.2d 754 (1972).

Affirmed.