State v. Boulter

• Decision Date: 19 March 1895
• Citation: 5 Wyo. 236,39 P. 883
• Parties: STATE v. BOULTER
• Court: Wyoming Supreme Court

39 P. 883

5 Wyo. 236

STATE v. BOULTER

Supreme Court of Wyoming

March 19, 1895

ERROR to the District Court for Laramie County, HON. RICHARD H SCOTT, Judge.

On November 23, 1894, the prosecuting attorney of Laramie County filed a criminal complaint before a justice of the peace for said county, charging the defendant in error with murder in the first degree, alleged to have been committed upon the person of one Thomas O'Neil, on the 22nd day of November 1894. Upon a hearing, the accused was held to answer for murder in the second degree. Thereafter, in the district court, the prosecuting attorney filed an information charging defendant in error with said crime of murder in the first degree. To said information a plea in abatement was filed. The grounds therefor being, that the accused had not been legally committed to the district court; that no finding had been made by any examining officer or committing magistrate that the offense described had been committed; and that the court had no jurisdiction of the cause. An answer to the plea in abatement was filed, denying its allegations. A hearing was had upon the plea, and the answer thereto, and the only evidence introduced was the transcript of the examining magistrate. His findings are stated in the opinion. The district court sustained the plea in abatement, to which the prosecuting attorney excepted. Such exceptions were brought to the supreme court by the prosecuting attorney, as permitted by the provisions of Sections 3307-3310 Rev. Stat. which authorize exceptions preserved by the prosecuting attorney to be filed in the said appellate court for its decision upon the points presented thereby, although, in such a case, it is provided that the judgment of the district court shall not be reversed, nor in any manner affected by the decision of the Supreme Court, but such decision determines the law to govern in any similar case which may be pending at the time it is rendered, or which may afterward arise.

The contention of the plaintiff in error was that, as the defendant was charged before the justice of the peace with the crime of murder in the first degree, he was properly informed against in the district court for the crime of murder in the first degree; and that it is not the finding of the justice as to the degree of the crime that fixes the nature of the charge in the district court, but that it is the nature of the offense charged against the defendant before the justice of the peace that determines the nature of the offense, concerning which the defendant may be informed against in the district court.

J. A Van Orsdel, prosecuting attorney, and W. R. Stoll of counsel for plaintiff.

There is nothing said in the statutes about justices of the peace binding a person over for a lower grade of any offense charged. There is no express authority given him to do this. He must either bind him over to answer the charge as made, or discharge him, or, if it appears that the offense is of a higher grade, he may bind him over for that offense. Such were the provisions of the statutes of Wyoming under the grand jury system. Such are the provisions under the information system. Under the information system, the object of the statute is to prevent a defendant from being proceeded against in the trial court for an offense concerning which he has not been informed. The defendant must have an opportunity of being heard. This is given him when he is charged with a particular offense by a criminal complaint before a justice of the peace. When a complaint charging murder in the first degree is filed before a justice of the peace, and the defendant has had his hearing thereon, the prosecuting attorney may file an information charging murder in the first degree in the district court.

The principle running through the cases is simply this: That before you can proceed against a defendant in the trial court for a particular offense, he must have been charged before the justice of the peace with substantially the same offense. It is not the determination of the justice of the peace that limits the prosecuting attorney, or decrees for what offense the defendant shall be tried, but it is the determination of the prosecuting attorney, he having charged the defendant with one offense before the justice of the peace, and with the same offense in the district court.

It does not matter what particular offense the justice of the peace determined had been committed. The justice of the peace may believe that a particular offense is committed, but his belief may be an erroneous one. The added supervision of the prosecuting attorney is necessary. People v. Lee Ah Chuck, 66 Cal. 662; People v. Vierra, 67 id., 231; People v. Giancoli, 74 id., 642; Ex parte Sternes, 82 id., 245; People v. Staples, 91 id., 23; People v. Parker, id., 91; Ex parte Nicholas, id., 640; People v. Wallace, 94 id., 497; People v. Christian, 101 id., 471; Washburn v. People, 10 Mich. 372; In the Matter of Dennis Leddy, 11 id., 197; Morrissey et al. v. People, 11 id., 327; People v. Annis, 13 id., 511; People v. Jones, 24 id., 214; Hamilton v. People, 29 id., 173; People v. Lynch, 29 id., 273; Turner v. People, 33 id., 363; Yaner v. People, 34 id., 285; Cargen v. People, 39 id., 549; Stuart v. People, 42 id., 255; People v. Evans, 40 N.W. 473 (Nov. 1, 1888); People v. Elshof, 72 id., 367; People v. Whittemore, 102 id., 519; State v. Bailey, 32 Kan. 83; State v. Spaulding, 24 id., 1; State v. Smith, 13 id., 204; State v. Reedy, 44 id., 190; Cowan v. State, 22 Neb. 519; Haunstein v. State, 31 id., 112; Hill v. State, 42 id., 503; State ex rel. v. Barnes, 3 N. D., 131.

Ralph E. Esteb, for defendant in error.

As the justice of the peace before whom the complaint was filed, upon full examination thereof, judicially decided that an offense had been committed, and that that offense was murder in the second degree, and that there was probable cause to believe the defendant guilty of said crime of murder in the second degree, the district court had no jurisdiction to entertain an information against the defendant for a higher crime than that which was found to have been committed, and of which there was probable cause to believe the defendant guilty.

(R. S., Secs. 3191, 3199.)

Section 3199 is as follows:

"If the offense for which the prisoner is held to answer be bailable, and the prisoner offer sufficient bail, a recognizance shall be taken for his appearance to answer the charge before the court in which the same is cognizable, on the first day of the next term thereof, and not to depart such court without leave, and thereupon he shall be discharged."

This section plainly imports that the offense for which the prisoner is to be held to bail is the one for which he is held to answer, and not the one with which he was charged.

If this were not true, and a defendant was held to answer the charge of manslaughter, or murder in the second degree upon his preliminary examination on a charge of murder in the first degree, then he could be held to bail for the offense with which he is charged, and not for the offense for which he had been held to answer, and can it be said that a defendant can be held to bail for an offense for which he has been held to answer, and yet be prosecuted in the court to which he is remanded for a higher offense.

Under Art. 1, Sec. 4, Constitution, a defendant is secure in his person, except upon probable cause, and if upon a preliminary hearing upon the charge of murder in the first degree, the finding of the justice is that an offense has been committed, and that there is probable cause to believe the defendant guilty of murder in the second degree, and thereafter he be seized and held to answer the charge of murder in the first degree, said seizure is without warrant and not upon probable cause.

The clear and evident intent of the statutes is that a magistrate should exercise his best judgment, in order that the accused shall not be placed upon trial to answer a charge different or greater than the one which is found to have been committed. The prosecuting attorney is deprived of any discretion in the premises.

(R. S., secs. 3194, 3199, 3201, 3202, L. 1891-2, Chap. 59, sec. 7; id., chap. 21, p. 44; Turner v. People, 33 Mich. 363; Yaner v. People, 34 Mich. 286; People v. Evans, 72 id., 367; Stuart v. People, 42 id., 258; 39 id., 551; People v. McDowell, 63 id., 229; People v. Annis, 13 id., 511; People v. Wright, 89 id., 78; People v. Jones, 24 id., 214; People v. Smith, 59 id., 366; People v. Christian, 101 Cal. 471-3; Ex parte Stearns, 82 id., 245; Ex parte Nicholas, 91 id., 640-5; People v. Staples, id., 26; People v. Parker, id., 94; People v. Vier, 67 id., 231; People v. Velarde, 59 id., 458; People v. Wheeler, 73 id., 255; People v. Lee Ah Chuck, 66 id., 662; Mawbray v. Commonwealth, 11 Leigh., 645; Hurtado v. California, 110 U.S. 517, 53; Deering's Crim. Code of Cal. sec. 872, 809; Works, On Courts and Their Jur., 481-3.

CONAWAY, JUSTICE. GROESBECK, C. J., and POTTER, J., concur.

OPINION

CONAWAY, JUSTICE.

An information charging defendant in error with the crime of murder in the first degree was filed in the district court on November 27, 1894. This information was verified by the county and prosecuting attorney on information and belief. Prior to the filing of this information a preliminary examination had been had before a justice of the peace on a complaint charging defendant in error with the crime of murder in the first degree. The result of this examination appears from the following entry in the docket of the justice, a transcript of which is part of the record:

"And the court doth find as follows: From the evidence it appears that an offense has been committed, and there...