Patrick v. State

• Decision Date: 22 December 1908
• Citation: 98 P. 588,17 Wyo. 260
• Parties: PATRICK v. STATE
• Court: Wyoming Supreme Court

98 P. 588

17 Wyo. 260

PATRICK v. STATE

Supreme Court of Wyoming

December 22, 1908

ERROR to the District Court, Natrona County, HON. CHARLES E CARPENTER, Judge.

The facts are stated in the opinion.

Affirmed.

Allen G. Fisher, for plaintiff in error.

The court was without jurisdiction. A warrant was issued without any copy of complaint or information attached, and was served in a different county. The information showed upon its face that the defendant was not guilty and that from natural causes no one could be guilty of importing from without the state into Natrona County any live stock, that being an interior county of the state. The section under which the prosecution was brought is void for defect in the title of the act. It is void also because of a plain regulation of interstate commerce; a regulation extending to prohibition or great or unfair discrimination. (Gibbons v. Ogden, 9 Wheat. 203; Kosciusko v. Slomberg, 48 Am. St. 281; Hannibal v. Houston, 95 U.S. 468; Salsenstein v Mavis, 91 Ill. 391; R. R. Co. v. Ohio, 173 U.S 285; Scott v. McDonald, 165 U.S. 91.) The information did not allege any violation of law. The section does not forbid causing of diseased sheep to be brought into the state. It forbids only wilfully and knowingly bringing them in. The defendant admitted by his plea of guilty only that he did bring into the state and cause to be brought into the state the sheep in question. If he caused this to be done some other party was guilty of bringing them in. How can the court say which of these the defendant did? But there is no charge that he brought them into any border county of the state, that is to say, across the state line. It is not made a crime to bring them into the county where this prosecution was brought, but only into the state. (Surface v. R. R. Co., 63 Mo. 452.)

W. E. Mullen, Attorney General, for the State.

The jurisdiction of the trial court and the sufficiency of the information seem to be the only questions to be considered upon the merits of the case. Want of jurisdiction must affirmatively appear upon the record. The court was one of original jurisdiction for the trial of persons accused of crimes and misdemeanors. The record clearly shows jurisdiction of the subject matter and of the person. No warrant or summons are in the record, but it does appear by an indorsement by the clerk of court upon the information that the defendant waived service of a certified copy thereof and thereupon entered a plea of guilty. The judgment and sentence show an arraignment; that the defendant was advised by the court as to his rights; and that thereupon he entered a plea of guilty to the offense charged. A fine was thereupon imposed and it was ordered that in default in payment of fine and costs the defendant be imprisoned in the county jail. The so-called motion in arrest of judgment was not only filed after judgment but it does not follow the statutory form, and if it presents any question it would be that of jurisdiction or sufficiency of the information. There is nothing in the record showing the payment of fine and costs under protest, or at all, and for anything appearing to the contrary the defendant may now be in the county jail serving out said fine and costs.

There would appear to be no question as to the jurisdiction of the court to render judgment and fix the punishment prescribed by law upon the facts shown by the record. (Hollibaugh v. Hehn, 13 Wyo. 276.) The proposition that the court in an interior county would not have jurisdiction of the offense is hardly worthy of serious discussion, as the sheep were brought in on the railroad and consigned direct to Casper, Natrona County. They were just as much in the state when in that county as if they had been unloaded in a county located on the state line. The offense was not complete until the sheep were unloaded in the state at destination, for had they been carried through and out of the state, no offense would have been committed. The act is not void as a regulation of interstate commerce, but falls clearly within the police power of the state. The information is sufficient. The objection relates to the manner in which the offense was charged and could have been taken advantage of only by motion to quash, plea in abatement, or demurrer. (Koppala v. State, 89 P. 576; Wilbur v. Territory, 3 Wyo. 268; Tway v. State, 7 Wyo. 74; Miller v. State, 3 Wyo. 657.)

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

An information was filed by the county and prosecuting attorney of Natrona County in the district court of that county charging the plaintiff in error, E. W. Patrick, with the crime of bringing into the state sheep that were infected with scab. The charge contained in the information being as follows: "that E. W. Patrick, late of the county aforesaid, on or about the sixth day of December, A. D. 1906, in the County of Natrona, in the State of Wyoming, did wilfully and knowingly bring into the State of Wyoming and County of Natrona and did willfully and knowingly cause to be brought into the county and state aforesaid 188 head of bucks, the said bucks being then and there infected with scab." To this information he pleaded guilty and was sentenced to pay a fine of $ 725, and costs. From that judgment he brings the case here on error.

There is no bill of exceptions in the case, and hence the only alleged errors that can be considered here are such as appear upon the face of the record. The record contains the information, the plea of guilty by the defendant, the judgment, and what is entitled a motion in arrest of judgment, and the order of the court denying said motion. The assignment of errors as contained in the petition in error are, "1. The district court of Natrona County was without jurisdiction of the subject matter of said prosecution. 2. The said information filed herein on December 8, 1906, wholly failed to state facts which constitute any violation of the laws of Wyoming. 3. The court was without jurisdiction to give judgment. 4. The court erred in overruling the motion of defendant in arrest of judgment. 5. The court erred in overruling the motion of defendant to set aside his plea of guilty."

In the absence of a bill of exceptions it is clear that this record presents but two questions, viz: the sufficiency of the information to state an offense; and the jurisdiction of the district court of the subject matter of the action. The statute upon which the information is based is Sec. 2090, R S. 1899, as amended and re-enacted by Sec. 4, Ch. 98, S. L. 1905, and is as follows: "It shall be unlawful for any person to bring into this state any sheep infected with scab or any other infectious or contagious disease, or that have in any manner been exposed to such disease. If any person shall violate the provisions of this section, he shall, upon conviction thereof, be...