State ex rel. Porter v. District Court of First Judicial Dist.

• Decision Date: 24 July 1950
• Docket Number: No. 8987,8987
• Citation: 124 Mont. 249,220 P.2d 1035
• Parties: . et al. Supreme Court of Montana
• Court: Montana Supreme Court

Page 1035

220 P.2d 1035

124 Mont. 249

STATE ex rel. PORTER v. DISTRICT COURT OF FIRST JUDICIAL DIST. et al.

No. 8987.

Supreme Court of Montana.

July 24, 1950.

Stanley M. Doyle, Lyle C. Nelson, Polson, Mont., for relator.

Melvin E. Magnuson, County Attorney, John C. Harrison and Michael G. Chilton, Deputy County Attorneys, Floyd O. Small, Sp. Prosecutor, all of Helena, for respondents.

Edmond G. Toomey, Charles N. Wagner, Carl Rasch, Thomas P. Patterson, H. J. Luxan, Jr., Sam D. Goza, Jr., Leo J. Kottas, T. B. Weir, Newell Gough, Jr., E. K. Matson, Sam C. Ford, Victor H. Fall, Hugh D. Galusha, Jr., Gordon R. Hickman, Leif Erickson, William A. Brown, all of Helena, amici curiae.

METCALF, Justice.

Application for a writ of prohibition. The relator is named as defendant in 16 indictments returned against him by the grand jury of Lewis and Clark county. Two of the indictments were returned on October 7, 1949, three on October 18th and the remaining eleven on November 4th.

On October 29, 1949, the relator through his counsel filed a civil action against the grand jurors and others. Allegations in that complaint were deemed contemptuous and Porter and counsel were adjudged guilty of contempt of court and sentenced to pay a fine. A petition for a writ of review was filed in this court to review the contempt proceedings and the order and sentence of the district court was affirmed. See State ex rel. Porter v. First Judicial District, Mont., 215 P.2d 279.

On December 13, 1949, the two district judges of the first judicial district requested that the board of county commissioners of Lewis and Clark county declare an emergency to exist for the purpose of meeting the mandatory public expenditures required for the continuance of the grand jury.

On December 15, 1949, the relator filed a taxpayer's suit seeking a writ of injunction restraining the board of county commissioners from appropriating any further money for grand jury purposes. It was there contended that the grand jury was illegal and invalid for reasons hereinafter discussed.

This court on December 15, 1949, accepted jurisdiction, issued a restraining order, and ordered the defendant county commissioners to show cause why they should not be permanently restrained from making the proposed expenditures for grand jury purposes. Thereupon the two district judges on December 19, 1949, made an order declaring: 'No emergency appropriation was ever necessary or required in the first place, but the same was proposed and contemplated purely for the convenience of the county clerk and the board of county commissioners.' The district judges then declared that the court, 'has the necessary and proper authority to make or authorize any expenditures that may arise in the course of the operation of said court, or for the due and proper operation of any grand jury, or other legally constituted body created by and operating under and by virtue of the authority of this court.' The district court then ordered that all action with respect to the proposed emergency appropriation be discontinued as unnecessary.

On January 4, 1950, the day before argument in the above cause was to be heard in this court, Porter moved that his proceedings in this court be dismissed for the reason that the defendants 'have cancelled and withdrawn their proposed emergency appropriation * * * for the use of the Special Grand Jury, and that the question * * * presented is now moot.' No pleadings had been filed by the defendants or affirmative relief demanded. Therefore this court granted the motion and dismissed the action. Porter v. Knapp, No. 8950, Mont., 214 P.2d 765.

On January 5, 1950, Roger Porter filed and presented a second taxpayer's proceeding to restrain the board of county commissioners of Lewis and Clark county and the county treasurer and auditor from paying any warrants for grand jury purposes. This court declined to accept jurisdiction and the writ prayed for was denied. See Porter v. Thielen, Mont., 214 P.2d 743.

The procedure that led to the filing of the petition at bar began when the relator on November 15, 1949, filed a motion to 'quash' the indictments, alleging, 'That the indictments wholly fail and neglect to fall within the requirements of section 11891, R.C.M. 1935 [R.C.M. 1947, § 94-6601], and particularly Paragraphs 1, 2, 4 and 5 thereof.' The relator also offered to prove other irregularities and departures from the statutes on the part of the grand jury.

The grounds for setting aside an indictment of a grand jury are set forth in section 94-6601, supra, and are exclusive. Territory v. Harding, 6 Mont. 323, 328, 12 P. 750. The trial court properly refused to consider any grounds for setting aside the indictment not enumerated in section 94-6601.

On March 7, 1950, Porter appeared for arraignment. Before pleading it was stipulated that he could withdraw his plea within 25 days and move to set aside the indictments for irregularities set forth in section 94-6601, R.C.M. 1947.

On all 16 of the indictments are endorsed the names of witnesses purporting to have appeared before the grand jury. In addition to other witnesses each indictment had the name of 'John Doe' and 'Richard Roe' endorsed thereon as witnesses. On March 13, 1950, Porter filed a demand for a bill of particulars requesting the true names of the witnesses designated as 'John Doe' and 'Richard Roe' on the indictments. When the requested information was not supplied by the county attorney a demand to produce was filed on March 30, 1950.

On the same day a motion to withdraw the plea of not guilty was filed, together with an amended motion to set aside the indictments. On March 31st in accordance with the aforementioned stipulation of March 7, 1950, leave to withdraw his plea was granted Porter and hearing on the motion to set aside the indictment was set for April 3, 1950. On that date Porter renewed his demand for a bill of particulars to reveal the true identity of witnesses 'John Doe' and 'Richard Roe' endorsed on the indictments. On April 10th the court of its own motion issued an order striking the names of 'John Doe' and 'Richard Roe' from the indictment 'pursuant to agreement of counsel for the state' and in all other respects denying the relator's demand for a bill of particulars. Amended motions to set aside the indictments were heard on April 20th. Relator's counsel on April 20th protested that he had not been served with the court's ruling on his demand for a bill of particulars and attempted to renew his demand. The court said, 'There was consent that these names be stricken from the indictment which indicates there were no such witnesses. In other words, they [the prosecution] are familiar with the rule that the names of witnesses must be endorsed on the indictment before it is returned.' Counsel for the relator insisted that the fictitious names represented two actual witnesses who testified before the grand jury. He further asked that 'special prosecutor' Small be sworn to testify as to whether or not there were other witnesses. Small objected that it would be 'prejudicial error' for him 'to testify to something that has transpired in the grand jury room that is secret.' Small further told the court, 'Neither now or at any future date, if we can help, are we going to be baited by names or otherwise into disclosing things that shouldn't be disclosed and thereby giving them an opportunity, possibly, to have something they don't have now.'

The court sustained the prosecutor's objection and at the conclusion of the hearing denied relator's motion to set aside the indictments.

On May 9, 1950, the relator filed the instant case in which he asked this court to review the record and pleadings summarized above and issue a writ of prohibition or other appropriate writ to prevent the district court from trying him under any of the 16 indictments.

The cause was heard on June 12, 1950, and the respondents on that day filed a demurrer and motion to dismiss the proceedings. Without prejudice to the consideration of the demurrer and motion to dismiss, the respondents were ordered to file an answer, which was done.

Prior to the hearing, 17 members of the bar of Lewis and Clark county petitioned for leave to appear as amici curiae, alleging that the cause at bar 'involves difficult and novel questions of law, the determination of which vitally affects the district courts of the State of Montana, and the interests of the people of the State of Montana.' Leave was granted in accordance with their request.

The relator contends: 1. The name of the prosecuting witness as such was not endorsed on the indictment as required by section 94-6331;

2. The true names of all the witnesses examined before the grand jury were not endorsed on the indictment as required by section 94-6331;

3. Unauthorized persons were present before the grand jury when the charges embraced in the indictments were under consideration.

The failure to endorse the names of witnesses or endorse the indictment as prescribed in the Code and the presence of unauthorized persons before the grand jury are grounds for setting aside the indictment under the provisions of section 94-6601. But section 94-6602 declares that unless the motion to set aside on these grounds be made before the defendant demurs or pleads the grounds of the objection are waived.

It is contended that since these defects can be waived they are not jurisdictional (14 Am.Jur., Courts, sec. 184, p. 380; State v. Vanella, 40 Mont. 326, 333, 106 P. 364, 20 Ann.Cas. 398), and not being jurisdictional defects they cannot be attacked by a petition for a writ of prohibition because section 93-9201 limits the function of the writ of prohibition to arrest 'the proceedings of any tribunal * * * when such proceedings are without or in excess of the jurisdiction of such tribunal. * * *'

However in the exercise of its superintending control over the courts, this court has...