Ex parte Graye

• Decision Date: 28 December 1907
• Citation: 36 Mont. 394
• Parties: Ex parte GRAYE.
• Court: Montana Supreme Court

36 Mont. 394

Ex parte GRAYE.

Supreme Court of Montana.

Dec. 28, 1907.

Application by L. Vernon Graye for writ of habeas corpus. Writ denied.

C. A. Spaulding and E. A. Carleton, for petitioner.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

BRANTLY, C. J.

Habeas corpus. The petition filed herein alleges, substantially, that on May 10, 1907, the complainant was by complaint under oath, filed in the police court of the city of Helena, charged with a violation of section 457, of the Penal Code; that, having been brought before the police judge under arrest and duly arraigned, he entered his plea of not guilty, and was admitted to bail; that the cause was not set down for trial, but that on May 20th the court, of its own motion and without any showing by affidavit or otherwise, transferred it to the court of S. W. Langhorne, a justice of the peace of Helena township, and forthwith transmitted the original papers in the cause to said justice; that the justice thereupon entered the cause upon his docket and fixed May 29th, at 2 o'clock p. m., as the date of trial; that on the date fixed the trial was begun, but, not being concluded, was adjourned to May 30th, at 10 o'clock a. m., the same being a legal holiday; that the hearing of the evidence was concluded on that day, and the cause taken under advisement until June 1st, at 10 a. m.; that on the latter date the justice rendered his decision finding the defendant guilty and appointing June 3d, at 10 o'clock a. m., as the time for pronouncing judgment; that at the appointed hour the complainant appeared and was sentenced to pay a fine of $100, and was committed to the county jail until the same should be satisfied; that judgment was thereupon entered by the justice upon his docket; that an appeal was on the same day taken to the district court; and that thereafter, on November 26, 1907, the complainant was by a jury again found guilty, and by the judgment of the court sentenced to a term of four months in the county jail, where he is now detained. It is alleged that this detention is illegal for the following reasons: (1) That the police judge had no power upon his own motion to transfer the cause to the justice's court, and for this reason the justice was without jurisdiction to try it; (2) that, if the justice did have jurisdiction to try it, he lost jurisdiction during the course of the trial by proceeding with it on May 30th, a legal holiday, and by not entering judgment at the close of the trial; and (3) that by reason of the lack of jurisdiction by the justice's court the district court had no power to try the cause and impose sentence. Upon the filing of the petition this court issued the writ to the sheriff, and also a writ of certiorari to the clerk of the district court, requiring him to certify up a copy of the docket of the justice who tried the cause. Upon the production of the prisoner the Attorney General interposed a motion to quash the writ, contending that, since upon the face of the proceedings it appeared that the justice had jurisdiction of the offense, and the complainant voluntarily submitted to a trial, thereafter taking an appeal to the district court, he could not question the jurisdiction of the latter to try the cause and enter judgment. Upon the questions thus raised the cause was submitted for decision.

1. It is conceded by counsel for complainant and the Attorney General that a police judge is authorized by statute to grant a change of the place of trial in a criminal cause, upon a motion supported by a proper showing, either of bias or prejudice of such judge, or prejudice in the citizens of the township, by reason of which in either case the defendant cannot have a fair and impartial trial. Pen. Code, § 2685. We are inclined to the opinion that the concession is properly made, though the question does not arise here, for the reason that the jurisdiction of police judges extends to all misdemeanors enumerated in the statute defining the jurisdiction of these officers (Pol. Code, § 4911, amended by Sess. Laws 1903, p. 27, c. 16), including the offense defined in section 457, supra, and is concurrent with that of justices of the peace. The statute (Pen. Code, § 2682) requires the justice or police judge to enter upon his docket all proceedings in the cause, and, upon a change of the place of trial, to transmit with the files a certified copy of his minutes. For some unexplained reason the police judge failed to observe this requirement.There is no provision in the Penal Code indicating what record shall be transmitted to the district court when an appeal is taken. But we must presume that the original files, together with a copy of the docket minutes, constitute the record. This is the requirement in civil cases, the trial being de novo upon the papers filed in the justice's court, unless the court for good cause permit others to be filed. Code Civ. Proc. § 1761. Since in criminal cases the trial is also de novo (Pen. Code, § 2717), in the absence of specific provision on the subject, we must conclude that the same method of procedure must be followed in criminal cases. At any rate, in the absence of specific provision on the subject, this course would seem most appropriate, and it would seem to be necessary, for the reason that the plea is oral, and an appeal may be taken by oral notice at the time of the rendition of the verdict or judgment. Pen. Code, § 2713. A copy of the docket is necessary to show the nature of the plea that a judgment has been entered and that the appeal has been properly taken. Furthermore, on appeal in civil cases each party has the benefit of all legal objections taken in the justice's or police court, and since no bill of exceptions is provided for, the docket furnishes the only means by which some, at least, of the objections may be made to appear. These remarks dispose of the incidental question, made by the attorney general, whether the transcript of the docket properly forms part of the record on appeal.

The absence of the copy of the docket of the police judge does not, however, affect the merits of this application. The justice's docket recites that, when the defendant, accompanied by his counsel, appeared before him on May 20th, he set the cause for trial on May 29th, “all informalities and irregularities being waived by counsel for defendant.” It is not a material inquiry, therefore, whether the change of the place of trial was ordered by the police judge of his own motion, or whether it was made upon the application of the defendant. Since it is conceded that he had jurisdiction of the offense under the statute that a complaint was filed giving him jurisdiction of the particular cause, and that the defendant had been properly arrested and brought before him, he could upon proper application order a change of the place of trial. The justice had jurisdiction of the offense. The irregularity of the procedure by which the cause was brought into his court was expressly waived by the defendant. He submitted to a trial upon a complaint charging him with the particular offense. He cannot now be heard to say that the justice did not have jurisdiction of the cause or of his person. He was entitled to make his objection at the time. Having failed to do so, or, rather, having expressly waived the irregularities, the court had jurisdiction to proceed. In Woldenberg v. Haines, 35 Or. 246, 57 Pac. 627, there was an application to the justice by the defendant for a change of venue after answer. The affidavit for the...