State v. Andrus

Citation156 P. 421,29 Idaho 1
PartiesSTATE, Respondent, v. FRANK W. ANDRUS, Appellant
Decision Date05 April 1916
CourtUnited States State Supreme Court of Idaho


1. The jurisdiction of a justice of the peace, sitting as a committing magistrate, extends throughout the county, and such a magistrate with whom a criminal complaint is filed charging that a felony or an indictable misdemeanor has been committed, and who entertains the complaint and issues a warrant for the arrest of the accused, thereby acquires jurisdiction to hold a preliminary examination of such charge and cannot be ousted therefrom by the officer who makes the arrest.

2. The right to a preliminary examination is one which the accused may waive, and when a defendant is arrested and is taken before a magistrate, other than the one who issued the warrant, in the county wherein the crime is alleged to have been committed, and fails to make objection, but waives his preliminary examination, his right to be taken before the magistrate who issued the warrant is waived.

3. An indictment or information must contain a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended to be charged thereby. No indictment or information will be held to be insufficient, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the accused upon its merits.

4. Where no showing has been made that an act of sexual intercourse had been recently committed, or attempted, upon the prosecutrix, and no attempt has been made to impeach her testimony, it is error to permit the prosecution, as a part of its case in chief, to introduce evidence in detail of a complaint made by her to third persons, not in the presence of appellant, to the effect that he had been molesting and bothering her.

5. Where the testimony of the prosecutrix is contradictory, or her general reputation for truth, honesty and integrity in the community wherein she resides is shown to be bad, and where the accused testified and denied specifically her accusations and was corroborated by other witnesses, the testimony of the prosecutrix, standing alone and without corroboration, will not warrant a conviction. By corroboration is meant evidence other than that of the prosecutrix which, in itself and without the aid of her testimony, tends to connect the accused with the commission of the offense.

[As to necessity and sufficiency of corroboration of prosecutrix in prosecutions for rape, see note in Ann.Cas. 1913D, 660]

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. J. J. Guheen, Judge.

Appellant was convicted of the crime of incest. Judgment reversed.

Reversed and remanded.

A. L Merrill and Budge & Barnard, for Appellant.

When this defendant was taken before Justice of the Peace Knowles of Pocatello Precinct, this justice had absolutely no jurisdiction over the cause. The matter of preliminary examinations is purely statutory and the provisions of the statute must be complied with at every step. (State v Huegin, 110 Wis. 189, 95 N.W. 1046, 62 L. R. A. 700.)

When the defendant was taken before Justice Knowles he waived his preliminary hearing, and Justice Knowles signed a certificate of waiver. This fact, however, did not waive any right of the defendant, as a waiver of preliminary examination before a justice not having jurisdiction is ineffectual for any purpose. (State v. Davis, 26 Kan. 205.)

When a man is brought before an American court, it must be upon an information charging facts--not conclusions of law. (McCaskill v. State, 55 Fla. 117, 45 So. 843.)

An information charging incest must specifically set forth the particular facts that show clearly that the crime was committed in an act of adultery or in an act of fornication. (Martin v. State, 58 Ark. 3, 22 S.W. 840; State v. Fritts, 48 Ark. 66, 2 S.W. 256; State v. Phillips, 48 Ark. 66, 2 S.W. 256; State v. Ratcliffe, 61 Ark. 62, 31 S.W. 978.)

In rape cases the complaint of prosecutrix, to be relevant, must have been made soon after the offense, and even then the details of the conversation are not relevant. (State v. Fowler, 13 Idaho 318, 321, 89 P. 757.)

A conviction in this case cannot be sustained without corroborating evidence. (State v. Baker, 6 Idaho 496, 56 P. 81; State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Trego, 25 Idaho 625, 138 P. 1124; State v. Clark, 27 Idaho 48, 146 P. 1107.)

J. H. Peterson, Atty. Genl., Herbert Wing, D. A. Dunning and T. C. Coffin, Assistants, for Respondent.

Only the limit of the county is the limit of jurisdiction in matters of preliminary examinations, and the prosecuting officer will designate the precinct where, and the magistrate before whom, such examination will be had. (State v. Griffin, 4 Idaho 462, 40 P. 58.) The allegations of the information follow the wording of the statute. (People v. Stratton, 141 Cal. 604, 75 P. 166.)

The defendant was in no way prejudiced by allegations of this nature, as he was fully apprised of the charge he would be called upon to meet. (People v. Cease, 80 Mich. 576, 45 N.W. 585; Baker v. State, 30 Ala. 521.)

MORGAN, J. Sullivan, C. J., and Cowen, District Judge, concur.



Appellant was accused of the crime of incest charged to have been committed with his daughter, who will be hereinafter referred to as the prosecutrix. The trial resulted in a verdict and judgment of conviction, from which, and from an order denying a motion for a new trial, this appeal has been taken.

The assignment of errors contains twenty-two specifications, which will not be considered separately, but the principles of law involved in the case will be sufficiently discussed to indicate the views of the court upon the questions thereby presented.

The record discloses that on May 24, 1915, the prosecutrix appeared before H. A. Westenfelder, Esq., a justice of the peace in and for Grace precinct, Bannock county, and made and filed her verified complaint wherein she charged appellant with the commission of the crime above mentioned. The justice of the peace thereupon issued a warrant for his arrest, which was placed in the hands of the sheriff and was served by his deputy, who arrested the accused and took him before J. M. Knowles, Esq., a justice of the peace in and for Pocatello precinct, Bannock county, where, on May 25, 1915, he waived preliminary examination, and was held to answer in the district court.

On September 13, 1915, the prosecuting attorney filed his information in the district court charging appellant with the commission of the aforesaid crime. To this information a motion to quash was interposed upon the ground that the provisions of sec. 7525, Rev. Codes, had not been complied with, in that the magistrate before whom appellant was taken for preliminary examination had no jurisdiction over him. The motion was supported by an affidavit which discloses, in addition to the facts hereinbefore set forth, that appellant was arrested in Grace precinct and that he was not taken before the justice of the peace who issued the warrant and who resided in that precinct, wherein it is alleged the crime was committed and wherein resided all of the witnesses who may have been available for his defense, but that he was taken immediately to Pocatello, a distance of about seventy miles from his home. No reason for the failure of the deputy sheriff to take him before the justice who issued the warrant appears in the record, and we must assume that none which would be recognized as sufficient existed. The motion to quash was denied, and that ruling is assigned as error.

Appellant relies upon sec. 7525, supra, which is as follows:

"If the offense charged is one which must afterward be investigated by the grand jury, or presented to the district court upon information, the officer making the arrest must take the defendant before the magistrate who issued the warrant, but if such magistrate does not reside in the precinct where the offense was committed or the majority of the witnesses reside, the officer having the charge of the defendant must take him, and the warrant, deposition, and all papers in the case, before some magistrate in such precinct for hearing and examination, or if there be no magistrate in such precinct, then before some magistrate residing in some other precinct, but all hearings on preliminary examinations must, as far as possible, be had before the magistrate most convenient to the majority of the witnesses for the prosecution, unless for good cause it is ordered to be held elsewhere, and in all such cases the preliminary examination must be had as hereinafter provided, unless such person shall waive his right to such examination, and for taking such examination the magistrate must be allowed twenty cents per folio."

Counsel for respondent cite and rely upon the case of State v. Griffin, 4 Idaho 462, 40 P. 58, a case wherein the accused was arrested upon a warrant issued by and made returnable to a justice of the peace of a precinct other than that in which the offense was charged to have been committed. The syllabus in that case is as follows:

"It is the province of the prosecuting officer to designate the precinct where, and the magistrate before whom, a preliminary examination upon a criminal charge shall be had, within the county wherein the offense is alleged to have been committed, and most convenient to a majority of the witnesses for the prosecution."

The case is not exactly in point, for it does not appear that in the case at bar the prosecuting officer designated...

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16 cases
  • State v. Elsen
    • United States
    • Idaho Supreme Court
    • December 18, 1947
    ... ... the purpose of attempting to corroborate her. State v ... Hirsch, 64 Idaho 20, 127 P.2d 764. But the corroboration ... required must be evidence other than the testimony of the ... prosecutrix herself, and must proceed from other sources than ... the prosecutrix alone. State v. Andrus, 29 Idaho 1, ... 156 P. 421; Gammel v. State, 101 Neb. 532, 163 N.W ... 854, 166 N.W. 250; State v. Hagedorn, 199 Iowa 1068, ... 203 N.W. 240; Annotation 60 A.L.R. 1124, 1151 ... Under ... the foregoing authorities, we necessarily conclude that the ... evidence in this case is ... ...
  • State v. Byers
    • United States
    • Idaho Supreme Court
    • April 1, 1981
    ...P.2d 976 (1947); State v. Mason, 41 Idaho 506, 239 P. 733 (1925). See State v. Haskins, 49 Idaho 384, 289 P. 609 (1930); State v. Andrus, 29 Idaho 1, 156 P. 421 (1916). As stated in State v. Mason, "We think what is meant by the rule 'the facts and circumstances surrounding the commission o......
  • State v. Parish
    • United States
    • Idaho Supreme Court
    • May 2, 1957 to serve as a shield in case of a second prosecution for the same offense. State v. Lottridge, 29 Idaho 53, 155 P. 487; State v. Andrus, 29 Idaho 1, 156 P. 421.' State v. Bowman, 40 Idaho 470, at page 475, 235 P. 577, This is the rule of the Supreme Court of the United States, as shown b......
  • State v. Bowman
    • United States
    • Idaho Supreme Court
    • February 28, 1925 to serve as a shield in case of a second prosecution for the same offense. (State v. Lottridge, 29 Idaho 53, 155 P. 487; State v. Andrus, 29 Idaho 1, 156 P. 421.) allegation, "offering to assist said girl in leading a life of a prostitute" is too general and indefinite, and failed to inf......
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