Kaseris v. Justice Court of Pocatello Precinct

• Decision Date: 22 December 1943
• Docket Number: 7136
• Citation: 144 P.2d 469,65 Idaho 347
• Parties: MIKE KASERIS, Appellant, v. JUSTICE COURT OF THE POCATELLO PRECINCT, BANNOCK COUNTY, IDAHO; and CHARLES HYDE, Justice of the Peace; and ALMA MARLEY, Sheriff of Bannock County, Idaho, Respondents
• Court: Idaho Supreme Court

144 P.2d 469

65 Idaho 347

MIKE KASERIS, Appellant, v. JUSTICE COURT OF THE POCATELLO PRECINCT, BANNOCK COUNTY, IDAHO; and CHARLES HYDE, Justice of the Peace; and ALMA MARLEY, Sheriff of Bannock County, Idaho, Respondents

No. 7136

Supreme Court of Idaho

December 22, 1943

Rehearing denied January 18, 1944.

1. Jury

The statute giving either county jurisdiction of an offense committed within 500 yards of the boundary of two or more counties is not unconstitutional as depriving accused of the right to trial by jury in the county where offense was committed. (I.C.A., sec. 19-305; Const., art. 1, sec. 7.)

2. Prohibition

Where accused demurred to criminal complaint on ground that justice court was without jurisdiction because offense was committed in another county, and on further ground that statute giving either county jurisdiction of offenses committed within 500 yards of the boundary line of two or more counties was unconstitutional, upon overruling demurrer, accused's remedy at law by appeal was adequate, and prohibition would not lie to restrain justice court from hearing offense. (I.C.A., secs. 13-402, 19-305; Const., art. 1, sec. 7.)

Rehearing Denied January 18, 1944. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from the District Court of the Fifth Judicial District, for Bannock County. Hon. D. H. Sutphen, Presiding Judge. Order refusing a permanent writ of prohibition, and discharging the temporary writ theretofore issued, Affirmed.

Jones, Pomeroy & Jones, and B. A. McDevitt for appellant.

A defendant in a criminal case has not had due process of law when he has been tried and convicted by a jury which did not measure up to the constitutional and statutory requirements. (State v. Nadlman, 118 P.2d 62 Ida.).

The right of trial by jury secures that right as it existed under the common law. (Christiansen v. Hollingsworth, 6 Ida. 87, 53 P. 211; Shields v. Johnson, 10 Ida. 476, 79 P. 391; People v. Burnham, 35 Ida. 522, 207 P. 589; State v. Nadlman, 63 Idaho 153, 118 P.2d 58, Ida.).

Common law right of trial by jury in a county was unconditional. (People v. Powell, 87 Cal. 348, 25 P. 481.).

C. M. Jeffery for respondents.

Courts of other states, passing upon the jurisdiction of offenses committed within a designated distance of a county line have held that either county has jurisdiction. (State v. Lehman, 130 Ore. 132, 279 P. 283; Ryan v. State, (Wis.) 168 Wis. 14, 168 N.W. 566; People v. Donaldson, (Mich.) 243 Mich. 104, 219 N.W. 602; Bayliss v. People, 46 Mich. 221, 9 N.W. 257; State v. Pugsley, (Iowa) 75 Iowa 742, 38 N.W. 498; State v. Stewart, (Wis.) 60 Wis. 587, 19 N.W. 429; Commonwealth v. Costley, 118 Mass. 1; Commonwealth v. Mathews, 167 Mass. 173, 45 N.E. 92; Carter v. Barlow, 105 Iowa 78, 74 N.W. 745.).

BUDGE J. AILSHIE, J. (Concurring specially). GIVENS, J. DUNLAP, J., dissenting. Holden, C.J., concurs in this dissent.

OPINION

BUDGE, J.

The facts in this case are substantially as follows: On or about February 8, 1943, Alma Marley, respondent sheriff of Bannock County, by and through his deputy, procured a search warrant and a criminal complaint against appellant out of the Justice Court of Pocatello Precinct, Bannock County. Pursuant thereto, appellant was arrested in Power County and certain property belonging to the "30 Club" was confiscated by the respondent sheriff of Bannock County. Appellant was taken into Bannock County, and arraigned before Charles Hyde, justice of peace of Pocatello Precinct, Bannock County, in which court bond was fixed, and furnished by appellant. To the criminal complaint, a demurrer was interposed. Thereafter, the prosecuting attorney of Bannock County filed an amended complaint, to which a demurrer was also interposed setting up the ground that the Justice Court of Pocatello Precinct was without jurisdiction of either the person or the offense charged, and that the complaint did not state facts sufficient to constitute a public offense. The demurrer was over-ruled, the case set for trial and appellant filed a petition in the District Court for a writ of prohibition. An alternative writ was issued, which respondents answered. The cause was submitted to Judge Sutphen, district judge of the Fourth Judicial District (to whom the case had been referred by the judges of the Fifth Judicial District), who heard and decided the cause, dissolving the alternative writ and refusing to issue a permanent writ of prohibition. This appeal is prosecuted From "that certain order dated the 26th day of May, 1943, and filed and entered in the above entitled action on the 1st day of June, 1943, refusing a permanent writ of prohibition, discharging the temporary writ heretofore issued * *."

Appellant assigns and relies upon six assignments of error, in which he urges that the court erred in deciding that the Justice Court of Pocatello Precinct and the respondent sheriff of Bannock County were not acting in excess of their jurisdiction and that the Justice Court had jurisdiction to hear and determine the offense charged in the criminal complaint; that the court erred in holding that appellant could be prosecuted criminally in Bannock County for an alleged offense committed in Power County but within 500 yards of the county line; that the court erred in holding that the temporary writ should be vacated and in denying appellant's application for a permanent writ of prohibition, and in holding that the Justice Court of Pocatello Precinct had jurisdiction beyond the geographical boundaries of Bannock County and in refusing to grant a permanent writ of prohibition enjoining and restraining said Justice Court from proceeding further in the cause.

In short, all assignments of error raise but one question, namely, whether or not sec. 19-305, I.C.A., is constitutional. Said section provides:

"When a public offense is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county."

Said section was adopted by the Idaho Territorial Legislature in 1864 and has since been incorporated in the laws of the state. It is identical with sec. 782 of the Penal Code of California and has been construed and upheld by the Supreme Court of California in the following cases: People v. Wooley, 44 Cal. 494; People v. Alviso, 55 Cal. 230; People v. Velarde, 59 Cal. 457; People v. Salorse, 62 Cal. 139; People v. Cipolla, 155 Cal. 224, 100 P. 252; People v. Padilla, 86 Cal.App. 95, 86 Cal.App. 95, 260 P. 394. The following courts, in passing upon the jurisdiction of offenses committed within a designated distance of a county line, have held that either county has jurisdiction: Ryan v. State, 168 Wis. 14, 168 N.W. 566; People v. Donaldson, 243 Mich. 104, 219 N.W. 602; Bayliss v. People, 46 Mich. 221, 9 N.W. 257; State v. Pugsley, 75 Iowa 742, 38 N.W. 498; Commonwealth v. Costley, 118 Mass. 1; Commonwealth v. Mathews, 167 Mass. 173, 45 N.E. 92; Carter v. Barlow, 105 Iowa 78, 74 N.W. 745; see also 7 Cal. Juris. 911, sec. 57.

In State v. Lehman, 130 Ore. 132, 279 P. 283, in the course of that opinion, the following language is used:

"In 16 C.J. it is said: 'While there are some eases to the contrary, the weight of authority is that these statutes do not deprive accused of the constitutional right to a trial by an impartial jury of the county where the offense was committed.'

"In 1 Brill's Cyclopedia of Criminal Law, sec. 290, it is stated: 'Statutory provisions, giving adjoining counties concurrent jurisdiction over offenses committed on or within a certain distance of the county line, are common, and have been upheld in many of the states, although some courts have held that they violate constitutional provisions giving the accused a right to be tried in the county where the offense is committed, in so far as they permit a prosecution in any other county.'

"Authorities contrary to the rule which we have announced may be found in 8 R.C.L., p. 99 * * *.

"It is argued that, if the legislature can extend the jurisdiction one mile from the boundary line of Washington county, its jurisdiction may be extended 20 or 30 miles. It will be time enough to meet that question when it arises. It is sufficient to say that designation by the legislature of the one-mile strip wherein the criminal jurisdiction of the court of Washington county was extended is not an unreasonable exercise of legislative discretion.

"Neither do We think that the jurisdiction of the court necessarily depended upon the uncertainty of the location of the boundary line between the counties. It was necessary for the state to establish beyond a reasonable doubt that the crime was committed in Washington county as charged in the indictment. If the crime was committed 900 feet from the boundary line, and the place in the light of the statute is not to be considered as being in Washington county, then it logically follows that the court would have no jurisdiction. If, on the other hand, this one-mile strip, for purposes of determining criminal jurisdiction, is to be considered as a part of Washington county, there can be no violation of defendant's constitutional rights.

"We are not unmindful that the courts are much in conflict on the question before us. We have deemed it proper, however, to follow those decisions which, in our opinion, tend towards the administration of justice and which do not, like some which have been cited, obstruct it." (Italics ours.)

In State v. Stewart, 60 Wis. 587, 19 N.W. 429, that court, construing their sec. 4618, R.S. 1878, which is similar to ...