Ex parte Bottjer

• Decision Date: 10 November 1927
• Docket Number: 5126
• Parties: In re JOHN H. BOTTJER
• Court: Idaho Supreme Court

260 P. 1095

45 Idaho 168

In re JOHN H. BOTTJER

No. 5126

Supreme Court of Idaho

November 10, 1927

CRIMINAL LAW-HABEAS CORPUS-INDICTMENT AND INFORMATION-PROBATE COURT PROCEEDINGS-DEFECTS WAIVED WHERE-VIOLATION OF EMBEZZLEMENT STATUTE-CONSTITUTIONAL LAW-STATUTE NOT CLASS LEGISLATION-SINGLE SENTENCE HELD PROPER.

1. Where complaint was filed in probate court charging petitioner with embezzlement, preliminary examination was waived, and petitioner pleaded guilty to information filed in the district court, defects in proceedings in probate court were waived, where petitioner filed no motion to quash demurrer or in arrest of judgment, under C. S., secs. 8870, 8878, and only attack made on proceedings was in application for writ of habeas corpus.

2. Where no motion to quash information or in arrest of judgment was made, under C. S., secs. 8878, 9019, information sufficient to charge embezzlement under section 5279, a crime over which court had jurisdiction, was not vulnerable to attack by habeas corpus, on ground that it did not allege an offense under such statute, because it did not charge with "intent to injure or defraud the bank."

3. C S., sec. 5279, defining embezzlement from banks, and applying to all persons following occupation of banking, is not class legislation, as singling out bankers as a particular class.

4. Though information under C. S., sec. 5279, contained three counts, since under secs. 8812, 8829, but one offense could be charged therein, defendant's plea of guilty applied to but one offense, and, under section 5279, a single sentence could be pronounced, and sentence to five to twenty years on each of other two counts was surplusage and void, under section 9035.

APPLICATION of John H. Bottjer for a Writ of Habeas Corpus. Writ quashed and petitioner remanded.

Writ quashed and the petitioner remanded to the custody of the warden.

A. H Oversmith and Wm. M. Morgan, for Petitioner.

An information filed in the district court can contain only one offense. (C. S., sec. 8829; People v. Bailey, 23 Cal. 577; People v. Alibez, 49 Cal. 452; People v. Plath, 166 Cal. 227, 135 P. 954; State v. Bilboa, 33 Idaho 129, 190 P. 248; State v. Gutke, 25 Idaho 737, 139 P. 346.)

If it was the intent of the prosecutor to charge petitioner with the commission of a crime as defined in C. S., sec. 5279, the information as filed in the district court was insufficient, because the act charged is not distinctly set forth in such language so as to enable a person of common understanding to know what was intended, nor is the act charged set forth with such degree of certainty as to enable the court to pronounce judgment upon conviction, according to the right of the case. (C. S., secs. 8825, 8834.)

The provisions of C. S., sec. 5279, are unconstitutional, void and class legislation. (Const., art. 3, sec. 19, subd. 2; State v. Williams, 32 S.C. 123, 10 S.E. 876; Brown v. Alabama G. S. R. Co., 87 Ala. 370, 6 So. 295; Ragio v. State, 86 Tenn. 272, 6 S.W. 401; State v. Garbroski, 111 Iowa 496, 82 Am. St. 524, 82 N.W. 959, 56 L. R. A. 570; In re Jacobs, 98 N.Y. 98, 50 Am. Rep. 636; State v. Savage, 96 Ore. 53, 184 P. 567, 189 P. 427; Ex parte Brady, 65 Cal.App. 345, 224 P. 252.)

Information filed in the district court fails to allege an offense, under the provisions of C. S., sec. 5279, for the reason that there is omitted therefrom an essential element of the crime, namely, embezzlement "with intent to injure or defraud the bank," and petitioner is entitled to his discharge on a writ of habeas corpus. (Ex parte Rickey, 31 Nev. 82, 135 Am. St. 651, 100 P. 134; Ex parte Dickson, 36 Nev. 94, 133 P. 393; State v. Levy, 119 Mo. 434, 24 S.W. 1026; Ex parte Harris, 8 Okla. Cr. 397, 128 P. 156; 12 R. C. L. 1190; People v. Bartnett, 15 Cal.App. 89, 113 P. 879; Merchant v. State, 12 Okla. Cr. 360, 157 P. 272; City of Astoria v. Malone, 87 Ore. 88, 169 P. 749; Williams v. State, 11 Okla. Cr. 628, 150 P. 90.)

Under a plea of guilty the jurisdiction of the court to pronounce sentence is limited to the penalty prescribed for the crime alleged in the information. (Ex parte Dickson, supra.)

The entire record of the case at bar shows that petitioner is now being deprived of his liberty "without due process of law," and contrary to the constitution of Idaho. "Due process of law" is synonymous with "law of the land." (Const., sec. 13, art. 1; 3 Words & Phrases, pp. 2227-2256; Words & Phrases, 2d series, pp. 167-181; Reed v. Commonwealth, 138 Ky. 568, 128 S.W. 874; In re Francis, 136 F. 912; In re Lowrie, 8 Colo. 499, 54 Am. Rep. 558, 9 P. 489; Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097; State v. Crawford, 32 Idaho 165, 179 P. 511; State v. Smith, 25 Idaho 541, 138 P. 1107; Polk v. State (Okl.), 224 P. 194; In re Durbon, 10 Mont. 147, 25 P. 442; Hovey v. Elliott, 145 N.Y. 126, 39 N.E. 841, 39 L. R. A. 449 and note.)

Frank L. Stephan, Attorney General, and H. O. McDougall and Leon M. Fisk, Assistant Attorneys General, for Respondent.

Duplicity in criminal pleading is an irregularity which is not of so fundamental a character as to deprive the court of jurisdiction, and unless advantage thereof is taken as provided by statute the defect is waived. (State v. Bilboa, 33 Idaho 128, 190 P. 248; People v. Nash, 1 Idaho 206; C. S., secs. 8870-8878; Connella v. Haskell, 158 F. 285.)

In habeas corpus proceedings the court has no authority to go back of the commitment or process on which petitioner is held and examine the sufficiency of the complaint upon which petitioner is held or the validity or regularity of the warrant issued thereon. Such errors can only be reviewed on appeal. Failure to object to sufficiency of complaint as prescribed by statute waives the defect. (In re Dawson, 20 Idaho 178, 117 P. 696, 35 L. R. A., N. S., 1146; In re Davis, 23 Idaho 473, 130 P. 786; State v. Hinckley, 4 Idaho 490, 42 P. 510; In re Alcorn, 7 Idaho 101, 60 P. 561; C. S., secs. 8870-8878.)

Where the court rendering judgment is one of general jurisdiction, habeas corpus will not lie unless the lack of jurisdiction appears on the face of the record. The determination of whether or not particular acts constitute a specific offense is an exercise of jurisdiction, and if the court has general jurisdiction of that class of offenses, error in its determination cannot be corrected by habeas corpus. (In re Knudtson, 10 Idaho 676, 79 P. 641; In re Drennan, 33 Cal.App. 193, 164 P. 807; In re Heigho, 18 Idaho 566, Ann. Cas. 1912A, 138, 110 P. 1029, 32 L. R. A., N. S., 877; In re Gregory, 219 U.S. 210, 31 S.Ct. 143, 55 L.Ed. 184; Rehyn v. McDonald, 82 Neb. 552, 118 N.W. 136; C. S., sec. 8609.)

A law is not a special or local law within the meaning of the constitution if its provisions operate upon all persons and subjects in like situations, and C. S., sec. 5279, complies with this rule and is therefore a general law not controlled by the provisions of sec. 19 of art. 3 of the constitution. ( Jones v. Power County, 27 Idaho 656, 150 P. 35; Gillesby v. Commissioners of Canyon Co., 17 Idaho 586, 107 P. 71; Robertson v. People, 20 Colo. 279, 38 P. 326; Imboden v. People, 40 Colo. 142, 90 P. 608; In re Finley, 1 Cal.App. 198, 81 P. 1041; In re Martin, 157 Cal. 51, 106 P. 235, 26 L. R. A., N. S., 242.)

Punishment in excess of the power of the court to impose is void only as to the excess, and is valid to the extent that the court had power to impose under the statute under which the party is convicted. (In re Chase, 18 Idaho 561, 110 P. 1036; In re Setters, 23 Idaho 270, 128 P. 1111; In re Erickson, 44 Idaho 713, 260 P. 160.)

GIVENS, J. Wm. E. Lee, C. J., and Budge, Taylor and T. Bailey Lee, JJ., concur.

OPINION

GIVENS, J.

A criminal complaint was filed against petitioner in the probate court charging him with embezzlement stated as three separate offenses. Preliminary examination was waived, and after being bound over to the district court, without being represented by counsel, petitioner plead guilty to the information filed, and the court pronounced an indeterminate sentence of from five to twenty years upon each of the three separate counts in the information.

The petition charges some twenty-three defects which may be grouped under the following heads:

1. Defects in the proceedings in the probate court.

2. Defects in the information filed in the district court.

3. The unconstitutionality of C. S., sec. 5279.

4. Defects in the judgment of the district court.

The points raised by the petitioner relative to the defects in the proceedings before the probate court and in the district court were waived, no motion to quash, demurrer or motion in arrest of judgment having been filed, and the petitioner's first and only attack made upon the proceedings being in the application for the writ herein. ( State v. Bilboa, 33 Idaho 128, 190 P. 248; In re Davis, 23 Idaho 473, 130 P. 786; In re Dawson, 20 Idaho 178, 117 P. 696, 35 L. R. A., N. S., 1146; In re Alcorn, 7 Idaho 101, 60 P. 561; State v. Hinckley, 4 Idaho 490, 42 P. 510; C. S., secs. 8870-8878.)

Petitioner contends that the information fails to allege an offense under C. S., sec. 5279, for the reason that it did not charge "with intent to injure or defraud the bank."

Whether by conclusion or otherwise the information did in fact charge embezzlement, and it is evident from all the allegations of the information that it was the pleader's intent to charge a violation of sec. 5279, a crime over which the court had jurisdiction; hence the information is not vulnerable to attack by habeas corpus. (C. S., secs. 8878, 9019; In re Dawson, supra; Ex parte Webb, 225 U.S. 663, 32 S.Ct. 769, 56 L.Ed. 1248; Connella v. Haskell, 158 F. 285; Ex parte Kaster, 52 Cal.App. 454, 198 P. 1029; In re Robinson, ...