State v. Allen

• Citation: 117 P. 849,20 Idaho 263
• Parties: STATE, Respondent, v. OVA J. ALLEN, Appellant
• Decision Date: 28 September 1911
• Court: United States State Supreme Court of Idaho

117 P. 849

20 Idaho 263

STATE, Respondent, v. OVA J. ALLEN, Appellant

Supreme Court of Idaho

September 28, 1911

CRIMINAL LAW-INFORMATION-INDORSING NAMES.

(Syllabus by the court.)

1. Rev Codes, sec. 7656, requires that the prosecuting attorney shall indorse upon the information filed in a criminal case the names of witnesses known to him at the time of filling the same, and at such time before the trial of any case as the court by rule or otherwise may prescribe, the names of such other witnesses as shall be known to him.

2. This statute, however, does not mean that an information will be quashed or that the prosecution shall in no case be permitted to have names indorsed upon the information after the same is filed, where good cause is shown at the time the application is made why the name or names were not indorsed at the time the information was filed, or why application was not sooner made after such information was filed.

3. If good cause be shown by the prosecuting officer why such indorsement was not made in accordance with the statute, and it appears that the failure to indorse the witness' name upon the information has in no way prejudiced or misled the defendant, then in such case the defendant can in no way be injured, and none of his rights will be denied by permitting the name of a witness to be indorsed after the information is filed.

4. A showing supporting a motion for permission to indorse a name upon the information after the information is filed and the trial begun, which shows that the witness whose name the prosecution asks to have indorsed upon the information was a witness at the preliminary examination, and that the defendant knew that such witness was an important and material witness for the prosecution, and the only reason why such name was not indorsed was the oversight and neglect of the prosecuting attorney, and no showing is made on behalf of the defendant to the effect that such defendant was in any way misled or deceived by the failure to indorse such name on the information, and that the court offered to grant a continuance giving the defendant time to secure necessary and material evidence made necessary by such indorsement, such showing is sufficient to warrant the court in permitting such name to be indorsed upon the information.

5. It is not error for the trial court to overrule a motion for a continuance in a criminal case upon the ground of absence of witnesses, where the showing fails to state the names of such witnesses, what the defendant believes such witnesses will testify to or show the materiality of the evidence of such witnesses.

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.

Prosecution for battery. Judgment of conviction. Defendant appeals. Affirmed.

Affirmed.

Frank Harris, for Appellant.

The requirement of sec. 7656, Rev. Codes, is mandatory, and to depart from the rules therein established is to invade the legal rights of the defendant. (State v. Wilmbusse, 8 Idaho 608, 70 P. 849; State v. Crea, 10 Idaho 88 76 P. 1013; State v. Barber, 13 Idaho 65, 88 P 418.)

"To say that a statute is directory approaches so near legislative discretion that this rule of construction ought to be applied by the courts with reluctance, and only in extraordinary cases, where great public mischiefs would otherwise occur." (Koch v. Bridges, 45 Miss. 247; 36 Cyc. 1157; Corbett v. Bradley, 7 Nev. 106.)

D. C. McDougall, Attorney General, J. H. Peterson and O. M. Van Duyn, Assistants, for Respondent.

Upon reading the statute, it becomes obvious that its purpose is to prevent the prosecution from surprising a defendant with witnesses whose testimony he is not prepared to combat, and that he is entitled to know before the trial who will testify against him in order that he might be in a position to combat or rebut such testimony. In the case at bar, the defendant was not taken by surprise.

"It is not necessary at common law that the names of witnesses examined before the grand jury shall be indorsed or otherwise appear on the indictment, but this is sometimes required by statute. As a general rule, it is held that these statutes are merely directory, and that a failure to comply with them will not render an indictment invalid." (22 Cyc. 258, par. 5, and cases cited; Commonwealth v. Glass, 107 Ky. 160, 53 S.W. 18; Reed v. State, 75 Neb. 509, 106 N.W. 649; State v. Thompson, 76 Kan. 365, 91 P. 79; State v. Bundy, 71 Kan. 779, 81 P. 459; State v. Jeffries, 210 Mo. 302, 109 S.W. 614, 14 Ann. Cas. 524; People v. Weil, 243 Ill. 208, 134 Am. St. 357, 90 N.E. 733; State v. Wilson, 223 Mo. 173, 122 S.W. 675; People v. Crowey, 56 Cal. 38, 39.)

STEWART, C. J. Sullivan, J., concurs. Ailshie, J., did not sit at the hearing.

OPINION

STEWART, C. J.

On January 25, 1911, the prosecuting attorney of Washington county filed an information in the district court of said county, charging the appellant with the crime of assault by means of force likely to produce great bodily injury. The defendant upon arraignment pleaded not guilty to the information and the cause came on for trial. A jury was impaneled to try the cause and the clerk read the information to the jury and stated the plea of the defendant, and the prosecuting attorney made a statement of the case to the jury. Thereupon the prosecuting attorney called one Melissa Buriff as a witness. She was asked by the prosecuting attorney her name, and made reply thereto, and thereupon the defendant, the appellant herein, through her counsel, objected to the witness giving testimony in the case upon the part of the state, for the reason that her name is not indorsed upon the information as required by sec. 7656 of the Rev. Codes of Idaho. Upon this objection being made the prosecuting attorney requested the court for a recess for the purpose of preparing and filing an affidavit showing the reason why the name of such witness was not indorsed upon the information. This was granted, and upon reconvening of the court the prosecuting attorney presented his affidavit, which in substance stated as follows: That he filed the information in the above-entitled action, and by an inadvertence and oversight failed to indorse the name of Melissa Buriff, the complaining witness, upon the said information, and was not apprised of the fact that said name was not indorsed until the witness was called to testify and objection was made by the defendant; that the witness is a material and necessary witness in the action, and that the defendant knew that such witness would be called at the trial; that the witness testified in the probate court at the preliminary examination of said defendant, and that upon the arraignment of the defendant, her counsel stated in open court that the defendant would probably ask for a continuance, and thereupon the prosecuting attorney stated to counsel in open court that Melissa Buriff, the complaining witness in the action, lived in Iron Mountain, Montana, and that it would not only be a great inconvenience but a very great expense to put the trial over the term and to bring the witness back later for trial; that the defendant knew the facts that the said Melissa Buriff would be called as a witness, and in no wise has been disappointed or surprised or prejudiced on account of the failure of the name of the said witness to be indorsed on the information.

Thereafter counsel for defendant and appellant filed a motion to strike the affidavit from the files because the same fails to show any lawful reason why the name of the said Melissa Buriff should be indorsed on the information as a witness, and submits with such motion an affidavit in which counsel for appellant makes oath in substance as follows: That he is attorney for defendant and has been during the preliminary examination in the case and attended the preliminary examination as such, and that one E. R. Coulter, of record as one of the attorneys for the state, was present at such preliminary examination as associate counsel for the state and acted as such and advised with the prosecuting attorney, and that such Coulter before and after the preliminary examination stated at the office of affiant that he had been employed as counsel in the case and intended to act as such; that the state from the beginning of the preliminary examination of the case on the 28th day of January, 1911, has been represented by the prosecuting attorney and the said Coulter, and that there is no valid reason for excusable neglect, inadvertence or oversight in leaving the name of Melissa Buriff off the information as claimed by the prosecuting attorney.

The court thereupon stated that the preliminary examination showed that at the trouble between the witness, Melissa Buriff, and the defendant, no one else was present except the said witness Buriff and the defendant, and therefore ordered that the motion of the defendant to strike the affidavit and motion of the state from the files be overruled, and that the name of the witness, Buriff, should be indorsed upon the information. To this ruling counsel for defendant excepted.

Thereupon counsel for the defendant made a motion for a continuance for the term upon the affidavit of Charles Allen, made on behalf of the defendant. In this affidavit Mr. Allen swears that he is the husband of the defendant, and has had charge of the defense, employed and consulted with counsel; and that after the information was filed counsel for defendant informed affiant that the information did not contain the name of Melissa Buriff as a witness, and that the law required that the names of all witnesses known to the prosecuting attorney at the time of filing the information should be indorsed upon the...