People ex rel. Chandler v. McDonald

• Decision Date: 25 October 1895
• Citation: 42 P. 15,5 Wyo. 526
• Parties: THE PEOPLE EX REL. CHANDLER v. McDONALD
• Court: Wyoming Supreme Court

42 P. 15

5 Wyo. 526

THE PEOPLE EX REL. CHANDLER v. McDONALD

Supreme Court of Wyoming

October 25, 1895

APPLICATION for writ of habeas corpus.

Isaac Chandler having been convicted of an assault and battery with intent to kill and murder, and sentenced to imprisonment for the term of fourteen years, was in the penitentiary, and in the custody of the warden thereof. Chandler applied for the writ of habeas corpus to be directed to N. D. McDonald, the warden of the State penitentiary. The case was heard upon the petition for the writ. The facts are stated in the opinion.

Writ of habeas corpus denied.

Charles F. Tew, for the petitioner.

The repeal of the law giving the accused the right to a change of magistrate at a preliminary examination is ex post facto as to Chandler, the crime which he is alleged to have committed having been committed prior to such repeal. (7 Am. & Eng Ency. Law, 526; Kring v. Mo. 107 U.S. 221; Garvey v. People, 6 Colo., 559; U. S. v. Hall, 2 Wash., 366; Calder v. Bull, 3 Dall., 386.) A preliminary examination is necessary before an information can be filed. (Chap. 21, L. 1893.) An examination or waiver thereof is required before the district court can acquire jurisdiction. (White v. State, 44 N.W. 443; People v. Chapman, 62 Mich. 280; People v Smith, 25 id., 497; State v. Sorenson, 84 Wis 30; Martin v. State, 79 Wis. 165; In re Wright, 3 Wyo. 487.) A preliminary examination is a judicial determination. (Rev. Stat., Secs. 3188, 3191, 3193, 3200, 3201; People v. Evans, 40 N.W. 473; Yaner v. People, 34 Mich. 286; Brown v. People, 39 id., 37; People v. Thompson, 84 Cal. 598; State v. Boutler, 39 P. 883.) A preliminary examination serves for a presentment by a grand jury, and is a substantial right. (State v. Sorenson, 84 Wis. 27.) In United States cases a presentment by indictment is necessary, and without it a conviction is void. (Ex parte Bain, 121 U.S. 1; ex parte Lange, 18 Wall., 183; ex parte Parks, 93 U.S. 18; ex parte Wilson, 114 id., 417.) The right to secure a change of magistrate was a substantial right.

Benjamin F. Fowler, attorney-general, in opposition to the petition.

A law which operates as a mere change of criminal procedure, without affecting any substantial right of the accused, is not ex post facto as applied to crimes committed before it took effect. (Cooley's Const. Lim., 329; State v. Manning, 14 Tex. 402; State v. Corson, 59 Me. 147; State v. Williams, 2 Rich., 418; People v. Phelps, 5 Wend., 9; Rand v. Com., 9 Gratt., 738; 7 Am. & Eng. Ency. L., 531; In re Wright, 3 Wyo. 478; Com. v. Hall, 97 Mass. 570; Dowling v. State, 13 Miss. 664; Gut v. State, 9 Wall., 35.) The repealing statute was not ex post facto. No substantial right of the accused was affected. (Holt v. State, 2 Tex. 363; 1 Kent, 408; 3 Dallas, 386; 1 Blackf., 193; 6 Cranch, 138; State v. Cooler, 30 S.C. 105; Com. v. Phillips, 11 Pick. 27; People v. Mortimer, 46 Cal. 114; 13 Colo. 810; Marion v. State, 20 Neb. 233; Walston v. Com., 16 B. Mon. 16; Warren v. Com., 37 Pa. 45.)

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

OPINION

GROESBECK, CHIEF JUSTICE.

The petitioner for the writ of habeas corpus, Isaac Chandler, was convicted in the district court for Laramie County of the crime of assault and battery with the intent to kill and murder, and on the 7th day of June, A D. 1895, was sentenced to imprisonment in the penitentiary for the term of fourteen years. He applies for the writ of habeas corpus, alleging that his imprisonment is unlawful, because the justice of the peace before whom he was examined on said charge refused to grant him, upon his sworn application therefor alleging the prejudice of the magistrate, an examination before some other justice of the peace of the county wherein the offense was alleged to have been committed. The time fixed in the information or complaint before the justice of the peace when the offense was committed was January 3, 1895. At the time of the commission of the offense as alleged in the complaint, the statute, Section 3441 of the Revised Statutes of Wyoming, as amended by Chapter 17 of the Session Laws of 1890, provided among other things that if upon the return of the process or the appearance of the parties in any civil cause or proceeding "or upon any criminal examination" either party, his agent or attorney shall make affidavit that from prejudice, bias or other cause, he believes that the justice of the peace before whom the cause is pending will not decide impartially in the matter, the said justice shall transfer said suit and all papers appertaining thereto to some other justice of the peace of the same or adjoining precinct against whom no such objection has been raised, who may thereupon proceed to hear and determine the same in the same manner as it would have been lawful for the justice before whom the cause or proceeding was commenced to have done. This last mentioned act was repealed and Section 3441 of the Revised Statutes amended thereby, was re-enacted in such manner as to remove all reference to criminal proceedings or criminal examinations, by Chapter 84 of the Session Laws of 1895, which by its terms took immediate effect and which became a law upon the approval of the Governor, February 18, 1895, two days before the complaint was made before the justice of the peace and before the preliminary examination of the petitioner.

The petitioner at his preliminary examination, notwithstanding the repealing statute, filed his affidavit and motion before the examining magistrate, the affidavit alleging that the "affiant has been reliably informed and verily believes that there exists in the mind of H. Glafcke (the magistrate) a prejudice against said defendant, such as would preclude said Glafcke from giving said defendant a fair and impartial hearing or examination," and further, "that said affiant has been informed and verily believes that there exists in the mind of L. E. Stone, a justice of the peace of Cheyenne precinct in Laramie County, Wyoming, and in the mind of one Charles Carlstrum of Pine Bluffs precinct in said county and State, and a justice of the peace within and for said precinct, a prejudice, such as would preclude both said L. E. Stone and said Carlstrum from giving said defendant a fair and impartial examination in said matter." The objection was therefore made to three justices of the peace of the county wherein the offense was alleged to be committed by this affidavit. The justice of the peace refused the application for change of venue, doubtless because of the passage of the repealing statute taking away the right of a defendant in a criminal cause or proceeding to a change of venue in a preliminary examination.

The attention of the district court was called to this matter by a plea in abatement before the trial and by a motion in arrest of judgment, both of which were overruled by the trial court.

The petitioner claims that the statute, Chap. 84, Sess. Laws 1895, in repealing or attempting to repeal, without a saving clause, the prior statute providing for a change of venue in a preliminary examination before a justice of the peace in criminal cases, is ex post facto and void as to him, as the offense with which he was charged was alleged to have been committed January 3, 1895, and that the act of February 18, 1895, could not deprive him of the right to object by affidavit to the justice of the peace before whom he was brought to be examined on said charge, upon the grounds mentioned in the statute in force at the time of the alleged commission of the offense. He contends that notwithstanding the repeal of the statute providing for a change of venue in preliminary examinations, he was entitled to it, when he applied therefor under the law as it existed at the time of the commission of the offense alleged; that the jurisdiction of the justice as an examining tribunal or court of inquiry was defeated after the application for change of venue had been made; that the magistrate was without jurisdiction to proceed with the examination; that as the subsequent proceedings of the magistrate were void, the accused had no preliminary examination; and that therefore, as the statute then provided for such an examination in trials upon information of the prosecuting attorney and where the accused had not been indicted by a grand jury, the district court was without jurisdiction to try the defendant; and that all its proceedings resulting in the conviction and sentence of the petitioner are wholly void. The relator insists that he has been deprived of a substantial right by the repealing statute, that of the right to object to the examining magistrate upon the belief of the petitioner of his bias and prejudice, and to secure, by merely filing an affidavit stating such belief, a change of place of trial or in the personnel of the examining tribunal.

It is doubtful if the record discloses sufficient facts to enable us to determine whether or not the offense with which the petitioner is charged occurred prior to the passage of the statute of February 18th, which took away the right to a change of the place of the examination or in the examining magistrate. We do not have before us in this proceeding the record of the district court sufficient to show when the alleged offense was committed. The allegation in the information filed before the examining magistrate on the 20th of February, 1895, alleges that the offense occurred on the 3d day of January of that year, but this is not conclusive upon the prosecution, and under a familiar rule of criminal law, the prosecution may lay one day in the information and prove that the offense was committed upon any day prior to the filing of the accusation. The offense may then have occurred...