In re Boulter

• Citation: 5 Wyo. 329,40 P. 520
• Parties: IN RE BOULTER
• Decision Date: 29 May 1895
• Court: United States State Supreme Court of Wyoming

40 P. 520

5 Wyo. 329

IN RE BOULTER

Supreme Court of Wyoming

May 29, 1895

Information filed in District Court December 5, 1894.

HABEAS CORPUS.

On April 20, 1895, Collingwood Boulter, otherwise called Charles Boulter, applied to the justices of the Supreme Court for a writ of habeas corpus, alleging that he was unlawfully confined in the county jail of Laramie County by the sheriff of said county upon a judgment of conviction for the crime of manslaughter. The grounds upon which such imprisonment was claimed to be illegal are set forth in the opinion. An order for the writ was made by one of the justices, commanding that the sheriff show the cause of such detention. The writ was issued, and the sheriff filed an answer, the substance of which is also recited in the opinion. The cause was heard upon a demurrer to such answer.

Demurrer overruled and petitioner remanded.

Ralph E. Esteb, for petitioner.

Informations must be based upon affidavits which show probable cause arising from facts within the knowledge of the parties making them; the mere belief of the affiant is insufficient. (U S. v. Thureaud, 20 F. 621; Bly v. Tompkins, 2 Abb Pr., 468; Vannata v. State, 31 Ind. 210; State v. Gleason, 32 Kan. 245; Skinner v. Wilhelm, 63 Mich. 568; State v. Spencer, 23 Kan. 119; U. S. v. Smith, 40 F. 755; Lustig v. People, 18 Colo. 217; Myers v. People, 67 Ill. 303; Johnson v. State, 17 Tex. App., 230; Connor v. Com., 3 Binn., 38; Atchison v. Bartolow, 4 Kan. 124; Arch. Cr. Pl. & Pr., 76; Thompson v. Higginbottom, 18 Kan. 42; Rex v. Bull, 1 Wils., 93; Rex v. Willett, 6 Term. R., 294; Rex v. Chilbers, 2 Chit., 163; Rex v. Williamson, 3 B. & A., 582; State v. Mann, 5 Ired L., 45; State v. J. H., 1 Tyler (Vt.), 444; Ex parte Burford, 3 Cranch, 447; Elsee v. Smith, 1 Dowl. & R., 97.) Any legislative act embracing more than one subject is unconstitutional and void. (Const., Art. 3, sec. 24; People v. Collins, 3 Mich. 343; Skinner v. Wilhelm, supra; People v. Mehaney, 13 Mich. 482; Myers v. People, supra; Miller v. Hurford, 13 Neb. 13; Ives vs. Norris, id., 253; Montclair v. Ramsdell, 107 U.S. 147; State v. Lancaster Co., 17 Neb. 85; Cooley's Const. Lim., 147 and 177; State v. Co. Judge, 2 Ia., 282; People v. Denahy, 20 Mich. 349; Stewart v. Society, 24 id., 44; In re. Div. Howard Co., 15 Kan. 195; Antonio v. Gould, 54 Tex. 49; State v. McCracken, 42 Tex. 383.) Chapter 59, L. 1890-91 is void because it violates Sec. 26 of Art. 3 of the constitution, because it amends, repeals and extends many sections of prior laws, which are not re-enacted at length. So long as the grand jury system is at all retained, no person can be proceeded against criminally except by indictment. (Const., Art. 1, Sec. 13; Arts. 5 & 14, Amendments U. S. Const.; In re Lowrie, 8 Colo., 511; Jones v. Robbins, 8 Gray, 342; 2 Kent, 12; Wharton's Cr. L., sec. 452; Story on Const. Constr., secs. 1779, 1785; 3 Wilson's Wks., 363, 364; 2 Sawy., 668; Dartmouth Coll. v. Woodward, 4 Wheat., 519; Rowna v. State, 30 Wis. 129; Hurtado v. Cali., 110 U.S. 635; Mackin v. U.S. 117 U.S. 348; Ragis v. State, 86 Tenn. 272; Moore v. Police Jury, 32 La. Ann., 1013.)

Benjamin F. Fowler, attorney general, and John C. Baird, prosecuting attorney, contra.

The warrant issued by the magistrate, which was the only warrant issued, was based upon an affidavit. The constitutional inhibition extends to seizure and arrest only. (Brown v. People, 20 Colo. 161.) The point was not raised in time. It is too late after trial and conviction. (Lambert v. People, 29 Mich. 71; Chase v. People, 2 Colo., 509.) The mode of prosecution by information is as ancient as the common law (4 Blackstone, 309), though not as to felonies. Art. 5 of Amendments to Constitution of U. S. applies only to prosecutions by the United States. (State v. Keyes, 8 Vt. 63; Noles v. State, 24 Ala. 672; State v. Jackson, 21 La. Ann., 574; State v. Anderson, 30 id., 557; State v. Shumbert, 1 Rich. (S. C.), 85; State v. Cowan, 29 Mo. 339; State v. Barnett, 3 Kan. 250; 7 Pet., 243.) An information is sufficiently verified by the prosecuting attorney upon information and belief. (Washburn v. People, 10 Mich. 372; Hicks v. People, 10 id., 395; State v. Graham, 46 Mo. App., 527; State v. Nulf, 15 Kan. 404; State v. Stoffel, 48 id., 364; Mentor v. People, 30 Mich. 91.) Prosecution by information is due process of law. (Hurtado v. People, 110 U.S. 516; In re Lowrie, 8 Colo., 511; Kalloch v. Sup. Ct., 56 Cal. 229; Rowan v. State, 30 Wis. 131; U. S. v. Black, 4 Sawy., 211; State v. Boswell, 4 N.E. 675; Brown v. Com., 50 Miss. 468.) The term, "due process of law" and "law of the land" are of equivalent import. (Davidson v. N. Orleans, 95 U.S. 97; Murray's Lessee v. H. L.Co., 18 How., 276; Green v. Briggs, 1 Curt., 311; State v. Staten, 6 Cold., 234; Ervine's Appeal, 16 Pa. 256; Parsons v. Russell, 11 Mich. 129; Sears v. Cottrell, 5 id., 251; Banning v. Taylor, 16 Pa. 292; 28 Cent. L. J., 518.) There is but one subject in the act provided for informations and changing the grand jury system.

GROESBECK, CHIEF JUSTICE. CONAWAY and POTTER, J. J., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

The petitioner seeks a discharge from the custody of the sheriff of Laramie County, by whom he is held under and by virtue of a mittimus of the district court for that county, having been convicted of the crime of manslaughter in said court and sentenced under said conviction. The former proceeding in this court under writ of habeas corpus was to secure the admission of the petitioner to bail pending the proceedings in error in this court, which he was about to institute, and his application was refused. In re Boulter, (supra). The illegality of the imprisonment of the petitioner is alleged in his petition to be that he was placed on trial and convicted upon an information charging him with the crime of murder in the second degree, which was verified only upon information and belief, and not upon oath or affirmation, as required by article 1, section 4, of the constitution of this State, and the 4th amendment of the Federal Constitution; that he has been, therefore, deprived of his liberty without due process of law; that the statute under which the information against him was filed is violative of the constitution of the State, and that such trial as he has had under such information is not due process of law, within the meaning of the Federal and State Constitutions.

The sheriff charged with his detention made answer reciting that the petitioner is held by virtue of the commitment of the district court, and further states that petitioner was, on the 23rd day of November, A. D. 1894, duly charged upon the affidavit of Josiah A. Van Orsdel, with the crime of murder in the first degree, before a justice of the peace for Laramie county, and that upon said affidavit a warrant was issued by said justice of the peace for the arrest and detention of the petitioner upon said charge, and that he was arrested and detained thereon until a preliminary examination was held upon the affidavit, and on November 26, 1894, the said justice found that there was probable cause to believe that said Boulter was guilty of murder in the second degree, and that, therefore, "he be held to answer the said charge to the district court for Laramie County forthwith at the present term of the district court in the penal sum of $ 5,000." It is further alleged in the answer that the petitioner was charged with the crime of murder in the second degree in the district court, the information being based upon and made upon the affidavit filed before the justice of the peace, and also upon a transcript of the proceedings had before the justice, which was filed in the office of the clerk of the district court for Laramie County. It further appears from this pleading that Boulter pleaded not guilty to the information, and did not except to the verification of the information by a motion to quash, nor by plea in abatement, by demurrer, nor by pleading in bar. This answer is demurred to, and upon the demurrer the proceedings were submitted to the court for final determination.

1. It is now too late to challenge procedure by information as not "due process of law" under the constitutional provisions relating thereto. The matter has been before this court, and our decision sustaining such a procedure is upheld by an overwhelming weight of authority, if not by all of the precedents. In re Wright, 3 Wyo. 478, 27 P. 565; Rowan v. State, 30 Wis. 129; Hurtado v. California, 110 U.S. 516, 28 L.Ed. 232, 4 S.Ct. 111.

2. We have before us a question never directly decided, and that is the validity of chapter 59 of the session laws of 1890-91. The act provides for the prosecution of all offenses either by indictment or by information; for the procedure in cases of information; that all provisions of the criminal code relating to indictments shall apply, as near as may be, to informations and all prosecutions and proceedings thereon; and further directs that no grand jury shall be summoned or required to attend any of the sessions of the district courts, unless ordered by the court or judge thereof in vacation or recess. When so summoned and ordered the grand jury is to consist of twelve men, possessing the qualifications of petit jurors in the district court, nine of whom shall concur in the finding of an indictment, and that the findings of the district court on all matters connected with the ordering or summoning of a grand jury shall be final and conclusive, and not subject to review by any court or judge. The authority for this law is found in the Declaration of Rights in our State Constitution, Art. 1, sec. 13, which declares: "Until otherwise provided by law, no person shall, for a felony, be proceeded...