[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The district court has no jurisdiction of this action, because the lower court could not render a valid judgment therein. If the lower court had no power to render a valid judgment, surely the district court, by amendment or in any manner, cannot acquire a greater *Page 378 or different jurisdiction. When the basic instrument falls, so does the entire prosecution. The complaint in the police court was radically and fatally defective. 43 C.J. 461, 463; Wagner v. State (Neb.), 206 N.W. 732; People v. Blue, 222 Ill. App. 255,257; State v. Claire (Minn.), 140 N.W. 747; Peer v. Dickson (N.J.), 83 A. 180; Lerch v. City of Sandusky, 155 N.E. 393; Ex Parte Worthington (Cal.), 132 P. 32; Ex Parte Hernandez (Cal.),220 P. 423.
The amending of the complaint in a matter of substance was beyond the jurisdiction of the respondent court and judge. 43 C.J. 467; State v. Runnals, 49 N.H. 498; State v. Dolby,49 N.H. 483; State v. Chamberlain, 6 Nev. 257; Edina v. Brown,19 Mo. App. 672.
Prohibition is as properly granted where the inferior court acts upon a false view of the law fixing its jurisdiction or a misconstruction of a statute conferring jurisdiction, as where it arbitrarily usurps jurisdiction in total disregard of law. Baldwin v. Cooley, 1 S.C. 256; Thomas v. Mead, 36 Mo. 232; State v. Superior Court, 36 P. 443; State v. Clendenning, 112 N.E. 1029; State v. Kimmel, 183 S.W. 651. If the complaint had been attacked in the municipal court for insufficiency, it could have been amended, but it was not. Instead of applying for a writ of habeas corpus, to test the jurisdiction of the court, after conviction the defendant appealed to the district court. He thereby waived the lack of jurisdiction of the municipal court, if it were lacking, although he still had the right to attack the complaint for lack of jurisdiction in the district court. Ex Parte Murray, 39 Nev. 357, at p. 647.
It is our contention that when the defendant fails to demur in the lower court and there is a trial de novo on appeal, the appellate court has the right to allow an amendment of the complaint or allow a new one to be filed, so long as the nature of the offense charged is not *Page 379 changed. 43 C.J. 487, sec. 732; Salt Lake City v. Larsen (Utah),151 P. 353; State v. Koerner (Wash.), 175 P. 175; City of Seattle v. Savage et al. (Wash.), 174 P. 1183; Donoghy v. State (Del.),100 A. 696; State v. Hartley (Conn.), 52 A. 615; State v. Muse, 20 N.C. 463; O'Brien v. People (Ill.), 75 N.C. 108; Village of Germantown v. Apke, 165 Ill. App. 431; State v. Smith (R.I.),72 A. 710; State v. Colwell (Wash.), 290 P. 878.
That the court could allow an amendment is definitely decided in Ex Parte Williams, 43 Nev. 342, 186 P. 673. The same may be said of the cases of Ex Parte Hernandez (Cal.), 220 P. 423, and Ex Parte Worthington (Cal.), 132 P. 32.
OPINION This is an original proceeding in prohibition. Petitioner was charged with a public offense in a written complaint in the municipal court of the city of Reno, Nevada. The charging part of the complaint was that he "committed the crime of unlawfully operating an automobile while in an intoxicated condition in Reno, Nevada." He was tried in said court, found guilty, and appealed to said Second judicial district court. A demurrer and motion to dismiss the complaint were filed, but were not argued or called to the attention of the court by counsel for petitioner. He was tried in the district court, and the jury disagreed. An amended motion to dismiss was filed and argued. The motion was denied by the court and the city attorney was allowed at his request to file an amended complaint. The case was reset for trial. The complaint as amended in the charging part reads as follows: "* * * Unlawfully driving and having control of a vehicle, to-wit, an automobile, on a public street in the City of Reno, while in an intoxicated condition."
Section 9 of City Ordinance No. 431 of the city of *Page 380 Reno, Nevada, provides as follows: "Section 9. Intoxicatedpersons: It shall be unlawful for any person while in an intoxicated condition, or under the influence of intoxicating liquor, to ride or drive any animal, or to have charge or control of any animal or vehicle in a public street."
The petitioner seeks the writ of prohibition to prevent his trial in the district court upon the ground that said court has no jurisdiction by reason of fatal defects in the complaint. His first contention is that the complaint is fatally defective in being entitled "City of Reno, plaintiff," against the petitioner, instead of "The State of Nevada," etc. He contends also that the municipal court had no jurisdiction to render a judgment, because the complaint failed to state a public offense; hence the appellate district court acquired no jurisdiction to try him; and that the granting of permission to amend the complaint in a matter of substance was beyond the jurisdiction of the appellate court.
1, 2. It will be seen, by referring the complaint in the municipal court and the complaint as amended in the district court to the ordinance, that the amendment is one of substance. The complaint, by omitting to charge that the operation of the automobile was in a public street, failed to state an essential element of the public offense defined by the ordinance. In so far as the complaint shows to the contrary, the automobile might have been driven upon the petitioner's own premises or other places in the city of Reno than on a public street. If the public character of the place is an element of the offense defined by ordinance, the complaint should show that the place was of such a character. 43 C.J. 463. See, also, Wagner v. State, 114 Neb. 171,206 N.W. 732, 733. The court in that case said: "Under section 8396, supra, the crime is the doing of the thing charged in the road, meaning public highway, street, or alley. Neither of these words appear in the information, nor their equivalents. The alleged acts might have occurred on defendant's own premises, or on premises lawfully possessed by him, or on a private way, so far as reflected by it. *Page 381 The statute is plain, and its words defining the essential elements of the crime, or the equivalent thereof, must be contained in the information."
It was held, therefore, that the information did not charge a misdemeanor.
In Re Worthington, 21 Cal. App. 497, 132 P. 82, the court held as follows: "Per Curiam. It appearing to the court that the act which petitioner is charged with having violated is one entitled `An act governing the use of automobiles upon public highways,' and it not being averred in the complaint that the defendant used or operated his automobile upon a public highway, the complaint failed to state any public offense, and for that reason it is ordered that petitioner be discharged. * * *"
We are of the opinion that the complaint in the municipal court in this case did not charge an offense. This being so, could the district court acquire jurisdiction on appeal? Counsel for respondents insist that it did, because the fact that the complaint failed to state an offense did not deprive the lower court of jurisdiction, and that the district court had authority to allow the amendment by virtue of statutory provisions.
Several decisions from other jurisdictions have been cited by counsel for respondents which support his contention that the jurisdiction of a court in a criminal case does not depend upon the sufficiency of the complaint, information, or indictment, as the case may be. In regard to this point, and without undertaking to decide it, we refer to the following cases in our own jurisdiction: In Re Waterman, 29 Nev. 288-298, 89 P. 291, 11 L.R.A. (N.S.) 424, 13 Ann. Cas. 926; Ex Parte Davis, 33 Nev. 309- 313, 110 P. 1131; Eureka County Bank Habeas Corpus Cases,35 Nev. 80-105, 126 P. 655, 129 P. 308.
3. We deem it unnecessary to determine the questions, for we are of the opinion that if, under the circumstances of this case, the district court has no jurisdiction, the remedy of habeas corpus is available to petitioner. Ex Parte Greenall, 153 Cal. 767,96 P. 804. Such remedy would be plain, speedy, and adequate. *Page 382
The writ of prohibition should be denied. The alternative writ of prohibition heretofore issued in this case is vacated, and the peremptory writ asked for denied.
ON PETITION FOR REHEARING March 6, 1933.