State v. Bailey
| Decision Date | 28 June 1971 |
| Docket Number | No. 10314,10314 |
| Citation | 486 P.2d 998,94 Idaho 285 |
| Parties | The STATE of Idaho, Plaintiff-Respondent, v. Samuel G. BAILEY, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Maureen J. Meehl (now deceased) of Jones & Jones, Boise, for appellant.
W. Anthony Park, Atty. Gen., and Martin R. Ward, Deputy Atty. Gen., Boise, for appellee.
On June 16, 1967, a complaint was filed in the justice court of Ada County charging Samuel G. Bailey, the appellant, with the crime of burglary in the second degree, alleged to have been committed in Boise on June 14, 1967. Bailey was arrested October 12, 1967. He moved to quash the complaint, which motion was denied. On December 13, 1967, a preliminary examination was held and Bailey was bound over for trial in the district court.
An information was filed against Bailey in the district court on January 12, 1968. He was subsequently tried before a jury, which returned its verdict of guilty of the crime of burglary in the second degree. The district court entered its judgment of conviction finding appellant guilty of the crime charged, and sentenced him to a term of not to exceed five years in the state penitentiary. From that judgment Bailey appeals.
Appellant makes four assignments of error. His first assignment is that both the trial court and the justice court erred in failing either to dismiss or to quash the complaint against him as being fatally defective for the reason 'that the Grand Jury was impaneled and in session at the time that said Complaint was filed and prosecuted especially when the Grand Jury involved did have notice of the alleged crime committed and of the alleged participants in said crime.'
In support of his first assignment of error, appellant first contends that there was a grand jury in session in Ada County at the time the criminal complaint was filed against him in the justice court of Ada County. The record discloses that a grand jury was impaneled from May 5, 1967, to September 8, 1967. It is his position that with the grand jury in session it was incumbent on the prosecuting attorney to submit the complaint to the grand jury for consideration and not to the justice of the peace, and that the motions to quash the complaint and the information should have been granted.
Appellant cites State v. Boswell, 104 Ind. 541, 4 N.E. 675 (1886), which holds that in a case where a defendant has been accused of a felony and ordered to appear at a term of court concurrent with the term of the grand jury, the prosecutor cannot proceed by way of information after the grand jury failed to indict the defendant during its term. As stated therein, the state in such circumstances must use the 'opportunity to proceed by indictment.'
The Supreme Court of California in People v. Ebanks, 120 Cal. 626, 52 P. 1078 (1898), reached a contrary result to that of State v. Boswell, supra. The Ebanks opinion states:
In People v. Lewis, 9 Cal.App. 279, 98 P. 1078 (1908), that court also reached a result contrary to State v. Boswell, supra. In People .v Lewis the court was presented with an issue very similar to the one raised by appellant; the opinion answered defendant's contention as follows:
In the case of In re Winn, 28 Idaho 461, 154 P. 497 (1916), a defendant had been charged by complaint of the crime of maintaining a place where intoxicating liquors were sold. The accused waived a preliminary examination and was held to answer the charge in the district court. The prosecuting attorney filed an information in the district court. Subsequently a grand jury was impaneled, and a month later completed its work and adjourned without having taken any action with respect to the charge against the accused. He then moved to quash the information, which motion was denied, and he was tried and found guilty and sentenced to serve a term in the county jail. A petition for habeas corpus was filed, the accused contending he was illegally held inasmuch as the grand jury had ignored the charge against him. This court rejected his reasoning and stated:
'It will be readily seen that it was the legislative intent to make informations of equal dignity with indictments, subject only to the limitations contained in section 8, art. 1, of the constitution, to the effect that a defendant may be only accused by information after commitment by a magistrate * * *.' 28 Idaho at 465, 154 P. at 498.
The court conceded for the purpose of disposing of the case that the grand jury had ignored the charge against the accused, but held that since the individual had been bound over to the district court prior to impanelling of the grand jury that the constitutional provision was inapplicable, and the prosecution by information was valid.
It is apparent that the case of In re Winn does not fit the factual pattern of this case. Here the appellant was charged by complaint before the justice of the peace while a grand jury was in session, but before he was arrested and before the information was filed in the district court the grand jury had adjourned.
Idaho Const. art. 1, § 8 provides:
'No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate, except in cases of impeachment, in cases cognizable by probate courts or by justices of the peace, and in cases arising in the militia when in actual service in time of war or public danger; provided, that a grand jury may be summoned upon the order of the district court in the manner provided by law, and provided further, that after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of the public prosecutor.'
I.C. § 19-1101 states:
'The grand jury must inquire into all public offenses committed or triable within the county, and present them to the court, either by presentment or by indictment.'
These constitutional and the statutory provisions are similar to those of California at the time People v. Ebanks and People v. Lewis, both supra, were decided. Although the California statute concerning grand juries was phrased in mandatory terms (as is I.C. § 19-1101) yet those cases held that prosecutions could still continue by information notwithstanding that a grand jury was impaneled.
The Idaho Constitution authorizes prosecutions by information after commitment by a magistrate and places prosecutions by information on an equal footing with prosecutions following an indictment by a grand jury. It is our conclusion that the reasoning of the California courts is better than that of the Indiana court in State v. Boswell, supra. Nothing in our constitution prohibits the use of the information procedure as opposed to the indictment by a grand jury while a grand jury is in session. It is our conclusion that appellant's contention that while a grand jury is in session no prosecutions for felony can be instituted except by first submitting them to the grand jury for action is without merit.
Proceeding next to the appellant's second assertion under his first assignment of error, this too, in our opinion, is not meritorious. Appellant contends that the Ada County grand jury returned an indictment against one John Bullis, who was charged with the same burglary (see State v. Bullis, 93 Idaho 749, 472 P.2d 315 (1970)), and further, that appellant was listed as one of the witnesses to the burglary charge against Bullis. He reasons that the grand jury, at the time it returned its indictment against Bullis, had sufficient information and facts with which to act against him. From that factual premise, appellant then contends that by reason of the provisions of Idaho Const. art. 1, § 8, '* * * and provided * * * no person shall be held to answer, or for trial therefor, upon information of the public prosecutor,' and because no indictment was returned against him, he should have been discharged.
At a habeas corpus hearing before the district court, the record of which is before this court, the prosecuting attorney and Bailey's attorneys entered into a stipulation regarding...
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State v. Flint
...asked the counsel for both sides whether they wished to have the court give the instruction approved in the case of State v. Bailey, 94 Idaho 285, 486 P.2d 998 (1971). Counsel for the State responded that, "It is worth a try." Defense counsel objected to any further instruction. He stated: ......
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...views expressed by our Supreme Court in two 1971 cases. In State v. Brown, 94 Idaho 352, 487 P.2d 946 (1971), and in State v. Bailey, 94 Idaho 285, 486 P.2d 998 (1971), the Court upheld instructions which, like IDJI 142, contained no Allen charge and made no explicit reference to the cost o......
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