State v. Beeskove
| Decision Date | 19 March 1906 |
| Citation | 85 P. 376,34 Mont. 41 |
| Parties | STATE v. BEESKOVE. |
| Court | Montana Supreme Court |
Appeal from District Court, Missoula County; F. C. Webster, Judge.
K. F W. Beeskove was convicted of murder, and he appeals. Reversed.
S. G Murray and Harry H. Parsons, for appellant.
Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen for the State.
The defendant was, upon his plea of not guilty to an information charging him with murder, found guilty of murder in the first degree, and by the judgment of the court was condemned to death. He has appealed from the judgment and from an order denying him a new trial. He has also attempted to appeal from the order of the court overruling his motion in arrest of judgment. The integrity of the judgment is questioned upon the grounds: That the court erred in overruing defendant's motion in arrest of judgment, in the admission and exclusion of evidence, in giving and refusing instructions to the jury; that the jury were guilty of misconduct; and that the verdict is contrary to the law and the evidence.
1. Touching the attempted appeal from the order overruling the motion in arrest of judgment, it is sufficient to say that no appeal lies from such an order on behalf of defendant. Pen. Code, § 2272. It is an intermediate order which may be reviewed on appeal from the judgment, and not otherwise. Pen. Code, § 2321.
2. The principal question submitted for decision arises out of the contention of counsel for defendant that the information does not contain sufficient substantial allegations to give the court jurisdiction of the offense of which the defendant was convicted. It is said that no venue is laid in the information, and for that reason it was insufficient to put the defendant upon his defense.
The information, omitting formal parts, is as follows: The sufficiency of the information was not challenged by demurrer, nor during the trial by other appropriate method; the question now submitted being first presented in the case by motion in arrest of judgment. This course saved the adverse ruling for review by this court, however, if under the law the allegation of venue is jurisdictional, and if, further, it cannot be understood from the allegations in the information before us that the crime sought to be charged was committed in Missoula county.
It is well settled upon reason and authority that the circumstances of time and place are of the substance of the charge, though, as to the time, it is sufficient if it is charged that the offense was committed at a time prior to the finding of the indictment or the filing of the information. If the time is an essential ingredient of the offense, the allegation must be precise. This was the rule at common law (4 Blackstone, Com. 307), and has prevailed in the several states of the Union, except where by statute the specific allegation of venue has been declared not essential (State v. Shull, 40 Tenn. 42; Shannon's Code Tenn. 1896, § 7088), or where the venue stated in the margin or caption is declared sufficient after verdict (Nichols v. People, 40 Ill. 397; State v. De Lay, 30 Mo.App. 357; State v. Simon, 50 Mo. 370). Mr. Bishop, in his text, declares this to be the rule and cites the cases generally in support of it. 3 Bishop, Criminal Procedure, 360, and cases collected in note. The reason of the rule is that the local jurisdiction of the crime is in the county where it is committed, and the charge must show that fact; furthermore, the defendant is entitled to know the cause of the accusation, so that he may prepare his defense. Const. art. 3, § 16. While in this state much of the particularity required at the common law has been dispensed with, and no defect or imperfection in form, which does not prejudice the substantial rights of the defendant, can affect a judgment of conviction (Pen. Code, §§ 1842, 2600), still time and place are essential elements and must be so alleged as to enable a person of common understanding to know what is intended by the charge (Pen. Code, § 1832). This is apparent from the provisions of section 1841 of the Penal Code; for among them is the requirement that the indictment or information shall, with the exception stated, allege that the offense was committed within the jurisdiction of the court and at a time prior to the finding of the indictment or the filing of the information. If it be borne in mind that the common law is in force in this state, except so far as it has been supplanted by our Codes, the conclusion cannot be escaped that the provisions of the Penal Code cited (sections 1832, 1841, 1842), and others germane to the subject, while dispensing with mere matters of form, still require all the substantial allegations necessary under the common-law rule.
Does the information before us meet the requirements of this rule? The only mention of the county is found in the caption in the description of the court in which, and of the officer by whom, the charge is preferred. In the charging part the word "county" is not used at all. The only reference words found there are in the expression "then and there." The first of these evidently refers to the preceding date alleged as the date of the crime, while the other as clearly refers to some place where the defendant then was, the description or designation of which has been omitted. If such an expression as "in the county aforesaid," or "said county," or the like, had been used, the reference to the caption would have been clear and unequivocal, and any person of...
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State v. Herron, 12948
...of the county attorney and the defendant and his counsel.' It also violates the proscription against oral jury instruction. State v. Beesskove, 34 Mont. 41, 85 P. 376; State v. Wakely, 43 Mont. 427, 437, 117 P. 95; State v. Asher, 63 Mont. 302, 306, 206 P. 1091; State v. Gies, 77 Mont. 62, ......