State ex rel. Nolan v. Brantley
| Decision Date | 11 October 1897 |
| Citation | 20 Mont. 173 |
| Parties | STATE ex rel. NOLAN, Atty. Gen., v. BRANTLEY, Judge. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Application by the state of Montana, on the relation of C. B. Nolan, attorney general, for a writ of certiorari to review the action of Theodore Brantley, judge of the Third judicial district, in granting a writ of habeas corpus on the application of William Day, who had been convicted of murder in the first degree. Reversed, and habeas corpus proceedings dismissed.
C. B. Nolan, Atty. Gen., in pro. per.
M. J. Cavanaugh and John N. Kirk, for respondent.
HUNT, J. Certiorari.
William Day applied to the district court of Deer Lodge county for a writ of habeas corpus. The district court granted the writ. The state asks this court to review the action of the lower court. On September 15, 1896, an information was filed in the district court of Silver Bow county charging William Day with the crime of murder in the first degree. When the information was filed, Day had not been examined and committed by a magistrate, or admitted to bail upon any charge, and it would appear from the record that he was at liberty when the information was filed. Leave of court was asked by the county attorney to file the information. The application for leave was in writing, filed September 15, 1896, and subscribed by the county attorney of Silver Bow county. This application was not sworn to or affirmed by any person. The presumption is, however, that the information was filed after leave of the court was granted. The information did not contain any oath or affirmation. It was simply subscribed by Melville L. Wines, as county attorney of Silver Bow county, Mont. The prisoner was arraigned on this information in due form, and entered his plea of not guilty. He was tried and convicted of murder in the second degree, and thereafter sentenced to the penitentiary for 60 years. No motion was made at the time required by law to set aside the information, nor did the prisoner interpose any demurrer within the time allowed him by statute; and it is conceded that the proceedings in the arraignment and trial of the prisoner and the judgment of the court and his commitment to the penitentiary were regular.
The specific ground upon which the prisoner claims he is illegally deprived of his liberty is that the information charging him with murder was not verified, and that no showing upon oath or affirmation was made by the county attorney or any other person at the time of the filing of the application for leave to file the information, and that there was no examination had upon the charge of murder or any charge by a magistrate wherein probable cause, supported by oath or affirmation, was made to appear. The attorney general concedes these facts. The question therefore is: Have the prisoner's constitutional rights been violated by the negligence or omission of the authorities to proceed under limitations of section 7 of article 3 of the constitution of the state? That section reads as follows: “The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place or seize any person or thing, shall issue without describing the place to be searched, or the person or thing to be seized, nor without probable cause, supported by oath or affirmation, reduced to writing.” The learned judge of the district court was of the opinion that section 7, supra, guaranties to the citizen rights which even he is not permitted to waive, and that a conviction had upon an information not verified, and upon one where, when leave of the court is asked to file an information, no showing has been made to the court of the probable cause in writing, signed by the party making the charge under oath, is absolutely void ab initio, and that no valid judgment can be rendered thereon.
In our careful deliberations upon the question presented, several points have arisen involving the full meaning of the constitutional section quoted, which lead us to reserve for final decision, in the absence of brief and argument, just to what entire extent the provisions of section 7, supra, may restrict procedure by information where leave of court is asked, and where no preliminary examination has been had. If all kinds and methods of prosecutions are affected, yet an information is a statement of probable cause when filed by the county attorney; and if he, being a sworn officer, need attach no special verification, but his official signature is to be regarded as supporting the information by his oath, the prisoner herein cannot complain, for he has not been wronged. It is therefore only necessary for us to consider the phase of the question presented and particularly insisted upon, namely, that based upon the argument that a verification to an information is necessary, and that, because of its absence, the district court never acquired jurisdiction to hear the case and render judgment.
It is fundamental that the trial of a case involves the exercise of judicial power. Ex parte Milligan, 4 Wall. 2. Judicial power is conferred and regulated almost exclusively by the constitution and statutes of the state. A court obtains jurisdiction of the...
To continue reading
Request your trial
-
State v. McKenzie
...only difference is that a period was placed after the word "seizures", and then started again with a new sentence. In Nolan v. Brantly, (1897), 20 Mont. 173, 178, 50 P. 410, this Court held this provision to apply to probable cause to obtain a warrant of arrest for a person. Since there is ......
-
State v. Martin
...360, 40 Pac. 873;State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026;State v. Little Whirlwind, 22 Mont. 425, 56 Pac. 820;State v. Brantly, 20 Mont. 173, 50 Pac. 410. Subsequently, and before trial, defendant filed his petition for a change of place of trial, on the ground of prejudice of the ......
-
State v. District Court of First Judicial Dist.
...adjudications of guilt by the other district courts throughout the state and by this court. As a case in point, he cites State v. Brantly, 20 Mont. 173, 50 P. 410, in which he says a gross wrong would have been done but the timely interposition of this court by means of certiorari to annul ......
-
State v. Ostmann
...Held, that the verification of an information is not essential to the jurisdiction of the court, and may be waived.—State v. Brantly, 20 Mont. 173, 50 Pac. 410. [x] (N. M. 1887) Under the rules of the common law as adopted in the various states, it is not essential that an information filed......