Gasper v. District Court of Seventh Judicial Dist., in and for Canyon County

• Decision Date: 10 November 1953
• Docket Number: No. 8061,8061
• Citation: 264 P.2d 679,74 Idaho 388
• Parties: ., IN AND FOR CANYON COUNTY et al. Supreme Court of Idaho
• Court: Idaho Supreme Court

Page 679

264 P.2d 679

74 Idaho 388

GASPER v. DISTRICT COURT OF SEVENTH JUDICIAL DIST., IN AND FOR CANYON COUNTY et al.

No. 8061.

Supreme Court of Idaho.

Nov. 10, 1953.

Meek & Miller, Caldwell, for plaintiff.

C. Robert Yost, Pros. Atty., Caldwell, Arnold T. Beebe, Nampa, for defendants.

Jones & Hicks, Boise, and Thomas Y. Gwilliam, Nampa, amici curiae.

TAYLOR, Justice.

This is an original proceeding in prohibition. Based upon petitioner's affidavit, an alternative writ of prohibition was issued. The defendants have filed a motion to quash the alternative writ and return thereto. Attached to the return are certain affidavits and other documents intended to controvert the allegations of plaintiff's affidavit, or to establish facts relied upon by the defendants. Attorneys for two other parties, strangers to these proceedings, were allowed to appear as amici curiae upon petitions representing that said parties were indicted by the same grand jury which indicted the plaintiff herein, and desire to urge the same errors in the proceedings of the grand jury which are urged by the plaintiff.

Petitioner has moved to strike the affidavits from the return upon the ground that they are not a proper part thereof, and also has filed an application for a trial either by referee or jury of the issues of fact raised by the plaintiff's application and defendants' return thereto. Counsel appearing amici curiae have demurred to the return and moved to strike it on ground that it is based upon affidavits and exhibits not a part of the record in prior proceedings.

These various motions are noticed only insofar as they affect, or are affected by, the decision herein.

It appears from plaintiff's affidavit that on the 31st day of July, 1953, a grand jury in session in Canyon County returned an indictment charging him with the crime of murder in the second degree. Plaintiff's counsel thereafter filed a motion to set aside the indictment. The motion was denied and plaintiff brought this proceeding challenging the jurisdiction of the district court to try him upon the indictment. As grounds of such challenge the plaintiff sets up various alleged errors in the proceedings of the grand jury, most of which were urged by him in the district court in his motion to set aside the indictment.

The office of the writ of prohibition is to arrest the proceedings of the lower court 'when such proceedings are without or in excess of the jurisdiction of such' court. § 7-401, I.C. It is not available where there is 'a plain, speedy and adequate remedy in the ordinary course of law.' § 7-402, I.C. Prohibition is primarily concerned with jurisdiction, and is not available to review errors committed in the exercise of jurisdiction. Skeen v. District Court, 29 Idaho 331, 158 P. 1072; Fitts v. Superior Court, 4 Cal.2d 514, 51 P.2d 66, Annotation 102 A.L.R. 298; State ex rel. Sibbald v. Huntington, 1 Wash.2d 413, 96 P.2d 446; Olson v. District Court, 106 Utah 220, 147 P.2d 471; McFarland v. Superior Court, 88 Cal.App.2d 153, 198 P.2d 318.

Even in cases where jurisdiction may be lacking or exceeded, prohibition will not ordinarily issue if another adequate remedy is available, such as review, § 7-202, I.C., or appeal. Pfirman v. Probate Court, 57 Idaho 304, 64 P.2d 849; Murphy v. McCarty, 69 Idaho 193, 204 P.2d 1014; Common School District No. 58 v. Lunden, 71 Idaho 486, 233 P.2d 806; 42 Am.Jur., Prohibition, § 22.

This court along with many others has held that appeal from a conviction in a criminal action ordinarily affords a plain, speedy and adequate remedy to correct errors in rulings of an inferior court on issues involving its jurisdiction. Thompson v. Adair, 36 Idaho 790, 214 P. 214; Kaseris v. Justice Court, 65 Idaho 347, 144 P.2d 469.

In Smith v. Young, 71 Idaho 31, 225 P.2d 466, 469, the applicant for prohibition urged that he should not be required to stand trial on a charge of violating an ordinance which he contended was unconstitutional and for that reason conferred no jurisdiction upon the police court to try him. After reviewing prior decisions of this court, we there said:

'There are no circumstances shown in the amended application for writ of prohibition that are exceptional nor is it shown that any present right of applicant will be jeopardized by requiring him to pursue his remedy by appeal or that any hardships exist in this case over and above those ordinarily borne by a defendant in a criminal prosecution.'

This rule would seem to be applicable in this case and sufficient for the determination of these proceedings. It is conceded that the district court has jurisdiction in grand jury proceedings and to receive indictments and to proceed to trial thereon. Errors and irregularities in such proceedings do not oust the court of jurisdiction to proceed upon the indictment. The adverse ruling of the court on plaintiff's motion to set aside the indictment is subject to review by this court upon appeal from a judgment of conviction. State v. Roberts, 33 Idaho 30, 188 P. 895; People v. Minet, 296 N.Y. 315, 73 N.E.2d 529, 4 A.L.R.2d 386.

However, there is one ground urged in the motion to set aside the indictment which is not a statutory, § 19-1601, I.C., ground for such motion; namely, alleged errors in the court's charge to the grand jury. There may be some question as to whether the defendant in case of conviction might have such errors reviewed on appeal. For this reason and because there are other indictments depending on the decision herein, we will consider the issues presented. Olson v. District Court, 106 Utah 220, 147 P.2d 471; State ex rel. Porter v. District Court, 124 Mont. 249, 220 P.2d 1035.

First, plaintiff urges that the 'indictment was not found endorsed and presented as prescribed in § 19-1401, I.C., in that said indictment is not endorsed 'a true bill' and the foreman signed no such endorsement.' The statute referred to requires that an indictment 'must be indorsed, a true bill, and the indorsement must be signed by the foreman of the grand jury.' A copy of the indictment is attached to the plaintiff's affidavit. From this it appears that the words, 'true bill' were placed thereon under the title of the court opposite the title of the cause. Thereafter follows the body of the indictment containing the name of the accused, the crime charged, the manner and date of its commission, and the date of the indictment. Below this appears the name of the foreman--presumably his signature--followed by his title as foreman of the grand jury. We think this is a sufficient and substantial compliance with the statute.

Section 19-1419, I.C., provides:

'No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits.'

The defect here is a matter of form which does not tend to prejudice any substantial right of the defendant. 27 Am.Jur., Indictments and Informations, §§ 41 and 42; 42 C.J.S., Indictments and Informations, § 61.

Plaintiff next urges that unauthorized persons were permitted to be present at sessions of the grand jury during the time his case was being investigated and while witnesses in his case were being interrogated. Section 19-1111, I.C., is in part as follows:

'* * * The prosecuting attorney of the county may at all times appear before the grand jury for the purpose of giving them information or advice relative to any matter cognizable by them, and may interrogate witnesses before them whenever they or he think it necessary, but no other person is permitted to be present during the sessions of the grand jury, except the members and witnesses actually under examination, and an interpreter, when necessary, and no person must be permitted to be present during the expressions of their opinions, or giving their votes upon any matter before them.'

Complaint is made of the appearance of one Arnold Beebe, an attorney at law. In his affidavit plaintiff avers:

'That on the 19th day of June, 1953, the Prosecuting Attorney of Canyon County, Idaho, C. Robert Yost, by a letter informed the Clerk of the Board of County Commissioners of Canyon County that he had named Arnold Beebe as a Deputy Prosecutor pursuant to a conversation had with said Clerk, and on said 19th day of June, 1953, the Board of County Commissioners administered the oath and approved the bond of said Arnold Beebe, all of which appears from the minutes and records of the Board of County Commissioners of Canyon County.

'That the appointment of said Arnold Beebe as Deputy Prosecuting Attorney did not conform to the requirements of 31-2602, Idaho Code, in that no finding was made by such Board of County Commissioners, that such appointment was necessary for the proper conduct of the office of the Prosecuting Attorney.

'And said appointment was invalid for the further reason that the appointment was not filed in the office of the County Recorder as required by Section 31-2007, Idaho Code.'

Exhibit seven, attached to the return, is a copy of the letter by the prosecuting attorney naming Beebe as a deputy, with an endorsement thereon, 'Approved June 19, 1953, C. M. Van Slyke, Chairman County Commissioners', and the certificate of the clerk and ex officio auditor and recorder, that the letter is on file in the office of the county recorder. It is thus made to appear that the deputy was duly appointed by the prosecuting attorney; that he took the oath of office and filed bond; that his appointment and bond were approved by the county commissioners; that his appointment was filed in the office of the county recorder; and that he entered upon the duties of the office. The only defect appearing is the failure of the board of commissioners to make and enter in its minutes a finding that the appointment was necessary for the proper conduct of the office of prosecuting...