State ex rel. Borberg v. District Court of Thirteenth Judicial Dist. in and for Yellowstone County
| Decision Date | 11 February 1952 |
| Docket Number | No. 9137,9137 |
| Citation | 240 P.2d 854,125 Mont. 481 |
| Parties | . IN AND FOR YELLOWSTONE COUNTY et al. Supreme Court of Montana |
| Court | Montana Supreme Court |
Arnold H. Olsen, Atty. Gen., Charles B. Sande, Co. Atty., Richard J. Carstensen, Deputy Co. Atty., Arnold A. Berger, Deputy Co. Atty., all of Billings, for appellant.
Wood, Cooke & Moulton, Billings, for respondents.
Certiorari. Original proceeding, wherein relator Emil Borberg as justice of the peace of Billings township in Yellowstone county, petitioned for and was granted a writ to review certain proceedings, orders and adjudications of the respondents, the district court of Yellowstone county and the Honorable F. V. Watts, district judge presiding in district court Case No. 25689. Respondents appearing by counsel made return to the writ so issued and filed a brief on which they submitted their case, waiving oral argument. Relator, appearing by the county attorney of his county, filed briefs and orally argued the cause whereupon it was submitted for decision.
Case No. 7576. December 23, 1950, the county attorney of Yellowstone county commenced in the justice court of Billings township, before Emil Borberg, a justice of the peace, criminal case No. 7576, by filing a criminal complaint against the Elmo Club, a corporation and Robert J. Porter, defendants, charging that 'on or about the 18th day of Dec., A.D. 1950' upon their premises licensed to sell liquor at retail, they committed the crime of selling liquor after closing hours in that they did there sell whisky 'after the hour of two o'clock A. M. and before the hour of one o'clock p. m., to-wit at 3:20 o'clock A. M. of said day contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State of Montana.'
The allegations of the complaint meet the requirements of the statute. R.C.M.1947, Sec. 94-100-1. Therein facts are stated which constitute a public offense and charge a violation of the provisions of R.C.M.1947, Sec. 4-414, being a misdemeanor, R.C.M.1947, Sec. 4-439, within the jurisdiction of the justice of the peace court to try. R.C.M.1947, Secs. 94-4916, 94-114, 94-116; State v. Holt, 121 Mont. 459, 478, 194 P.2d 651, 662. The complaint is good.
On the day the complaint was filed defendants entered a plea of not guilty. Four days later the defendant Porter and the county attorney appeared in such justice's court, where, on motion of the county attorney and his representation to the court that an error was made in setting forth the time of the commission of the offense the justice of the peace ordered the complaint dismissed.
Case No. 7582. Simultaneously with the dismissal of the foregoing complaint, without objection and in the presence of the defendant Porter, the county attorney commenced in said justice of the peace court criminal case No. 7582 by filing a new criminal complaint against the same two defendants, charging that 'on or about the 17th day of December, A.D. 1950,' upon their premises licensed to sell liquor at retail, they committed the crime of selling liquor after closing hours in that they did there sell whisky 'after the hour of two o'clock A. M., and before the hour of one o'clock P. M., to-wit: at 3:20 o'clock A. M. of said day.'
Not only is there no statute forbidding the filing of the new complaint but there is an express statute which provides that if a demurrer to any criminal complaint is sustained for any other cause than that of a want of jurisdiction in the court to hear the offense charged 'a new complaint may be made against the defendant.' R.C.M.1947, Sec. 94-100-10.
Except for the allegation in the complaint in the first case charging an offense committed 'on or about the 18th day of Dec.' and that in the second case charging an offense committed 'on or about the 17th day of December' the allegations of the complaint in each case are identical. Immediately upon the filing of the complaint in the second case (No. 7582) the defendant Porter was arrested, arraigned and released on bail to appear and plead on January 5, 1951.
January 5, 1951, the defendants, appearing by counsel, served and filed an instrument in writing designated 'Special Plea in Bar of Defendants' wherein they averred that the justice of the peace was and is without jurisdiction or right to entertain the complaint in the second case (No. 7582) contending that, under the provisions of R.C.M.1947, Sec. 94-9507, the state's voluntary dismissal of the complaint in the first case (No. 7576) is a bar to the prosecution of defendants for the offense of which they are accused by the complaint in the second case and praying for an order dismissing such second case,--releasing defendants from custody and exonerating their bail.
January 13, 1951, the county attorney filed in the second case an instrument in writing designated 'Answer to Special Plea in Bar of Defendants' and upon the same date the defendants filed a written motion to strike therefrom all of the seventh paragraph thereof 'as legally insufficient as an answer or defense to the said Defendants' special plea in Bar' and moved to dismiss the action in accordance with the prayer of defendants' so-called special plea in bar.
January 19, 1951, the county attorney served and filed an instrument in writing designated 'Amended Answer to Special Plea in Bar of Defendants' in the seventh paragraph whereof is set forth the facts, circumstances and reasons for the voluntary dismissal of the complaint in case No. 7576 and for the simultaneous filing of the complaint in case No. 7582, said paragraph of said so-called amended answer concluding: 'and consequently the dismissal of the Complaint under case number 7576 is not a bar to the prosecution of the offense as set forth in case number 7582.'
January 22, 1951, the defendants jointly and severally served and filed a second written motion to strike from the county attorney's so-called amended answer the above last quoted portions of the seventh paragraph thereof, as being redundant and irrelevant matter, and also moved for the dismissal of the action in accordance with the prayer of the so-called special plea in bar.
We find no authority in the law of this jurisdiction for such procedure in a criminal case brought and prosecuted in a justice's court. Here both the defendants and the state departed from the prescribed practice and this we may not condone. In a criminal prosecution the only pleading on the part of the defendant is either a demurrer or a plea. R.C.M.1947, Sec. 94-6701. To a criminal complaint in a justice's court the defendant may make the same plea as upon indictment or information. 'His plea must be oral, and entered in the minutes.' R.C.M.1947, Sec. 94-100-4. (Emphasis supplied.) The four kinds of pleas authorized by the Codes are enumerated in R.C.M.1947, Sec. 94-6801, while R.C.M.1947, Sec. 94-6802 prescribes the form for each plea and provides that every plea 'must be oral'.
February 19, 1951, the justice of the peace denied defendants' above motions of January 13th and 22nd,--overruled the so-called 'Special Plea in Bar of Defendants' and ordered defendants to make their pleas to the complaint.
Case No. 25689. February 26, 1951, the defendants commenced, in the district court of Yellowstone county, cause No. 25689, wherein they petitioned for and, by order that day made by the Honorable Ben Harwood, a judge thereof, were granted a writ of certiorari directed to Emil Borberg, as justice of the peace of Billings township in said county, requiring such justice of the peace to certify and return to said district court a complete transcript of the record and proceedings had before him in criminal cases Nos. 7576 and 7582, the district court proceeding being entitled
March 3, 1951, the justice of the peace made his return to the writ and filed in the district court a certified copy of the proceedings had and done in criminal cases Nos. 7576 and 7582.
March 8, 1951, the county attorney, appearing on behalf of the justice of the peace, interposed a motion to quash the writ so issued out of the district court on the grounds that certiorari is not the proper remedy; that the affidavit initiating the proceeding fails to state facts sufficient to authorize the issuance of the writ; that such affidavit fails to state facts sufficient to show that adequate relief could not be obtained in the justice of the peace court; that such affidavit fails to state any facts sufficient to show that adequate relief would not be afforded by appeal and that it fails to state any facts showing that there is no plain, speedy, or adequate remedy other than by certiorari.
April 9, 1951, the justice of the peace was served with defendants' notice of a motion to strike from the files the motion to quash the writ or, in the alternative, to dismiss such motion to quash. At this stage of the proceeding the Honorable F. V. Watts, district judge of the fourteenth judicial district of the state of Montana, was called to preside in the case and on April 17, 1951, he assumed jurisdiction and ordered the motions and other matters then pending continued to a date to be subsequently fixed and thereafter set July 19, 1951, for hearing the matters at which time, pursuant to stipulation of counsel, same were submitted to the court on briefs.
October 3, 1951, Judge Watts denied the defendant's motion to strike the motion to quash the writ,--denied the motion of the justice of the peace to quash the writ and rendered a formal judgment wherein he specifically found, inter alia, 'that the Special Plea in Bar * * * should have...
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