State v. Ashby

• Decision Date: 04 December 1924
• Citation: 40 Idaho 1,230 P. 1013
• Parties: STATE, Respondent, v. CLARENCE ASHBY, Appellant
• Court: Idaho Supreme Court

230 P. 1013

40 Idaho 1

STATE, Respondent, v. CLARENCE ASHBY, Appellant

Supreme Court of Idaho

December 4, 1924

CRIMINAL COMPLAINT IN JUSTICE COURT-APPEAL FROM JUDGMENT OF CONVICTION - TRIAL DE NOVO - ARRAIGNMENT AND PLEA - SUFFICIENCY OF COMPLAINT - ASSIGNMENTS BASED ON ADMISSION OR REJECTION OF EVIDENCE-WHEN REVIEWABLE.

1. Under C. S., sec. 9227, a prosecution for a public offense before a probate or justice court of which such court has jurisdiction is commenced by the filing of a complaint under oath setting forth the offense charged with such particulars as will enable the defendant to understand the character of the charge.

2. Where the defendant in a criminal case appeals to the district court from a judgment of conviction rendered by a probate or justice court the cause is tried anew in the district court upon the complaint filed in the court of original jurisdiction, and neither a new arraignment or plea is necessary in the district court.

3. Appellant was charged under C. S., sec. 2622, with wilfully knowingly, unlawfully and intentionally being at a public gathering while drunk and intoxicated, and this sufficiently states a public offense, including the element of criminal intent.

4. Assignments of error based upon the action of the court in admitting evidence are not reviewable upon appeal when no exception is preserved in the record to such rulings.

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

Judgment of conviction for misdemeanor. Affirmed.

Affirmed.

Clarence S. Hill and Hugh N. Caldwell, for Appellant.

A criminal case appealed from a justice or probate court, after the appeal, stands the same in the district court as though it had been begun there. It is therefore a new trial on every point and question that was raised or might have been raised in the justice or probate court. (State v. Stafford, 26 Idaho 381, 143 P. 528; C. S., sec. 9268.)

In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence. (C. S., sec. 8087; In re Baugh, 30 Idaho 387, 164 P 529; State v. Omaechevviaria, 27 Idaho 797, 152 P 280; State v. Bidegain, 33 Idaho 66, 189 P. 242.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

It is not necessary on an appeal to the district court from a judgment of conviction in a justice court to rearraign the defendant where a plea of "not guilty" has been entered in the lower court. (C. S., sec. 9268; State v. Stafford, 26 Idaho 381, 143 P. 528; Zimmerman v. Bradford-Kennedy Co., 14 Idaho 681, 95 P. 825; Albinola v. Horning, 39 Idaho 515, 227 P. 1054.)

In order to review the ruling of the court on the admission of testimony, it is necessary to save an exception. (C. S., sec. 9006; State v. Brockman, 39 Idaho 468, 228 P. 250.)

Instructions of the court must be read together, as no one instruction states all the law. (State v. Petrogalli, 34 Idaho 232, 200 P. 119; State v. Sayko, 37 Idaho 43, 216 P. 1036.)

Where there is substantial evidence to support the verdict and the judgment founded thereon, the judgment will not be disturbed. (State v. Steen, 29 Idaho 337, 158 P. 499; State v. Askew, 32 Idaho 456, 184 P. 473; State v. Ford, 33 Idaho 689, 197 P. 558; State v. White, 33 Idaho 697, 197 P. 824; State v. Colvard, 33 Idaho 702, 197 P. 826.)

WILLIAM A. LEE, J. McCarthy, C. J., Dunn and Wm. E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

A complaint was filed in the justice court of Caldwell precinct, Canyon county, which charged appellant, under C. S., sec. 2622, with being drunk and intoxicated at a public gathering. After jury trial in the justice court appellant was found guilty and from the judgment of conviction thereon appealed to the district court where he was again convicted, and this appeal is from that judgment.

Appellant makes numerous assignments of error. The first two are predicated upon the contention that appellant had not been arraigned and given an opportunity to plead. An examination of the record in the justice court shows that after appellant was arraigned and had entered a plea of not guilty the prosecuting attorney was permitted to strike certain words from the complaint. After this, appellant objected to the introduction of evidence in support of the complaint, upon the ground that it had been amended and he had not again been arraigned after such words were stricken, but that court held that the words stricken did not change the charging part of the complaint or materially affect it, and the objection was overruled. It does not appear from the record what changes were made in the complaint by the prosecuting attorney, and in the absence of any showing in this regard, and further, in view of the fact that the complaint, as it appears in the record in the district court, to which the cause was brought by appeal, is sufficient, and appellant being tried upon this complaint as amended, no prejudicial error appears in that respect.

It was said in State v. Stafford, 26 Idaho 381, 143 P. 528, that "a criminal case appealed from a justice or probate court, after the appeal, stands the same in the district court as though it had been begun there. It is therefore a new trial on every point and question that was raised or might have been raised in the justice or probate court."

Prior to the introduction of any testimony, the court directed the clerk to read the complaint, which was accordingly done, and the clerk stated at the close of such reading, "to which complaint defendant pleads not guilty." Appellant moved that this statement of the clerk be stricken for the reason that appellant had entered no plea in that court and had never been arraigned, to which the court replied "When there has been no plea entered, the law directs that a plea of not guilty be entered, so the motion will be overruled," and thereafter the trial of the cause proceeded in the usual manner. Upon this state of the record we are of the opinion that the first two assignments are without merit. It has been frequently held that in a trial upon a misdemeanor charge, a failure to give a defendant an opportunity to plead is not reversible error where the defendant proceeds to trial without raising the objection, and under such circumstances he waives the privilege of pleading. In the instant case, when appellant raised the objection, the court in effect directed that a plea of not guilty be entered for him. (See...