State ex rel. Wong Sun v. District Court of First Judicial Dist. in and for Lewis and Clark County

• Decision Date: 05 June 1941
• Docket Number: 8213.
• Parties: STATE ex rel. WONG SUN v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.
• Court: Montana Supreme Court

113 P.2d 996

112 Mont. 153

STATE ex rel. WONG SUN v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.

No. 8213.

Supreme Court of Montana

June 5, 1941

Original proceeding by the State, on relation of Wong Sun, against the District Court of the First Judicial District of the State of Montana in and for the County of Lewis and Clark, and George W. Padbury, Jr. a judge thereof, for a writ of supervisory control directing the District Court to grant an order requiring the State of Montana to furnish a bill of particulars in a criminal proceeding against relator.

Writ issued.

O. F Goddard, of Billings, and W. D. Rankin and Arthur Acher, both of Helena, for relator.

J Miller Smith, Jr., and E. M. Hall, both of Helena, for respondents.

ANGSTMAN Justice.

This is an application for a writ of supervisory control directing the district court to grant an order requiring the State of Montana to furnish a bill of particulars in a criminal proceeding against relator. He alleges that he is charged with the commission of a misdemeanor by an information filed in the district court of Lewis and Clark county. He filed a motion for a bill of particulars which was denied.

The material part of the information is as follows: "Wong Sun is accused by the county attorney of Lewis and Clark County, Montana, by this information of the crime of practicing medicine without a license committed as follows That at the County of Lewis and Clark in the State of Montana, on or about the 10th day of July, A. D., 1940, and before the filing of this information, the said Wong Sun did wilfully, knowingly, and unlawfully practice medicine within the State of Montana without first having obtained a certificate to practice as provided by law."

The contention of relator is that the information does not sufficiently apprise him of the nature of the accusation to enable him to prepare his defense, and that the refusal of his demand for a bill of particulars is a violation of his constitutional rights. The provisions of the Constitution claimed to be violated are Article III, section 16, of the Montana Constitution, which reads in part: "In all criminal prosecutions the accused shall have the right to appear and *** to demand the nature and cause of the accusation."

And the Sixth Amendment of the Constitution of the United States, which in part reads: "In all criminal prosecutions the accused shall enjoy the right *** to be informed of the nature and cause of the accusation," etc.

Respondents resist the petition on the following grounds:

First, that there is no statute authorizing or giving the court or judge the right to require the state to furnish a bill of particulars in a criminal cause.

Second, that the information does sufficiently apprise the relator of the nature and cause of the accusation to enable him to prepare his defense within the meaning of the constitutional provisions relied upon by him; and

Third, that the relator by his plea of "not guilty" waived the right to demand a bill of particulars.

The rule applicable to a bill of particulars in a criminal case is set out in 14 Am.Jur. p. 852, as follows: "In most jurisdictions when the indictment does not clearly set forth the charge against the accused, he may move for a bill of particulars for specification of the acts on which the prosecution intends to rely, and such motion will be granted whenever it appears to be necessary to enable the defendant to meet the charge against him. In a few jurisdictions, however, this practice is not recognized."

This state has no statute requiring the giving of a bill of particulars in a criminal case since the repeal of the prohibition law. (Laws of 1927, Appendix, p. 603.) However, the right to demand a bill of particulars exists by virtue of the constitutional provision which gives the accused the right to "demand the nature and cause of the accusation," where the information fails to furnish the necessary particulars. To hold that there must be statutory sanction of the right to demand sufficient particulars to enable him to make his defense, would be to question the supremacy of the constitutional law. See State v. Davis, 39 R.I. 276, 97 A. 818, Ann.Cas.1918C, p. 563. This court has recognized the existence of the right in a criminal case. State v. Sedlacek, 74 Mont. 201, 239 P. 1002; State v. Shannon, 95 Mont. 280, 26 P.2d 360; State v. Hahn, 105 Mont. 270, 72 P.2d 459; State v. Gondeiro, 82 Mont. 530, 268 P. 507.

The next question presented is whether the information gives the accused the necessary information to meet the charge against him. The statute under which relator stands charged is section 3122, Revised Codes. That section provides in part as follows: "Any person practicing medicine or surgery within this state without first having obtained a certificate to practice, as provided by law, and after his certificate to practice has been revoked, or contrary to the provisions of this article, shall for each violation of the provisions of this code, or any...