In re Pierce

• Decision Date: 14 January 1902
• Citation: 8 Idaho 183,67 P. 316
• Parties: IN RE E. W. PIERCE
• Court: Idaho Supreme Court

67 P. 316

8 Idaho 183

IN RE E. W. PIERCE

Supreme Court of Idaho

January 14, 1902

HABEAS CORPUS-CRIMINAL LAW-DEMURRER-NEW INFORMATION.-Application for a writ of habeas corpus will be denied where it appears from the petition therefor that the defendant is confined in the penitentiary under a judgment of conviction upon a new information filed by the prosecuting attorney, under an order of court sustaining a demurrer to the former information and granting leave to file a new information, as such order is in effect, a compliance with the provisions of sections 7745, 7746, 7747 of the Revised Statutes.

(Syllabus by the court.)

An original proceeding for a writ of habeas corpus.

Writ denied.

W. A Stone, for Petitioner.

No brief filed.

OPINION

PER CURIAM

This is an application by E. W. Pierce, by petition, for a writ of habeas corpus. The petitioner claims that he is unlawfully restrained of his liberty by the warden of the state penitentiary of the state of Idaho under the following circumstances: That prior to December 4, 1901, an information by the public prosecuting attorney of Canyon county was filed in the district court of the third judicial district, in and for Canyon county, charging the petitioner with the crime of embezzlement, to which information the defendant filed a demurrer. That on the fifth day of December, 1901, the said district court, after hearing argument upon said demurrer made the following order, to wit: "The court, after due deliberation, sustains the demurrer, and grants the county attorney leave to file a new information." That thereafter, in the said court, and pursuant to said order, the prosecuting attorney of Canyon county filed another information against defendant, charging him with the same offense. That thereafter, in the said district court the defendant moved to dismiss the action for the reason that the said information was filed by the prosecuting attorney without direction of the court, which motion was by the court overruled and denied. Thereafter the defendant was tried by a jury, convicted, and duly sentenced to imprisonment in the state prison under which judgment of conviction he is now being detained by the said warden of the penitentiary.

It is argued that the order sustaining the demurrer to the first information terminated the action, and was a bar to further proceedings inasmuch as the district court did not specifically direct the prosecuting attorney to file another information. This contention is based upon the provisions of sections 7745-7747 of the Revised Statutes, which are as follows:

"Sec. 7745. Upon considering the demurrer, the court must give judgment either allowing or disallowing it, and an order to that effect must be entered upon the minutes.

"Sec. 7746. If the demurrer is allowed, the judgment is final upon the indictment demurred to and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to be resubmitted to the same or another grand jury.

"Sec. 7747. If the court does not direct the case to be resubmitted the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he has deposited money instead of bail, the money must be refunded to him."

In behalf of the petitioner's contention we are cited to the following authorities: People v. Jordan, 63 Cal 219; People v. O'Leary, 77 Cal. 30, 18 P. 856; Ex parte Williams, 116 Cal. 512, 48 P. 499; State v. Comfort, 22 Minn. 271. In People v. Jordan, supra, a demurrer was sustained to the information. The trial court, after hearing argument upon the demurrer, intimated that it would later make an order sustaining the demurrer; and, before the demurrer was sustained, the prosecuting attorney filed a second information based upon the same offense. Afterward the trial court made an order sustaining the demurrer to the first information, and the supreme court says: "No leave of the court was asked or given for filing the second...