State v. Bowser

• Decision Date: 16 May 1898
• Citation: 53 P. 179,21 Mont. 133
• Parties: STATE v. BOWSER.
• Court: Montana Supreme Court

53 P. 179

21 Mont. 133

STATE v. BOWSER.

Supreme Court of Montana

May 16, 1898

Appeal from district court, Flathead county; Charles W. Pomroy Judge.

Martin Bowser was convicted of rape upon a child under 16 years of age, and he appeals. Affirmed.

Geo. H Grubb and H. G. Swany, for appellant.

C. B Nolan, for respondent.

HUNT J.

Defendant was convicted of rape upon a child under the age of 16 years. He was sentenced to the penitentiary for life, and appealed from the judgment and an order overruling a motion for a new trial.

1. Defendant specified as error the order of the court denying his motion to quash the information under which he was arraigned. The ground of this motion was that defendant had not been legally committed by a magistrate before the filing of the information. It was a fact not disputed that defendant never had had a preliminary examination, and never had waived any right to the same. The constitution of the state (section 8, art. 3) provides that: "Criminal offenses of which justices' courts and municipal and other courts, inferior to the district courts, have jurisdiction, shall, in all courts inferior to the district court, be prosecuted by complaint. All criminal actions in the district court, except those on appeal, shall be prosecuted by information, after examination and commitment, by a magistrate, or after leave granted by the court, or shall be prosecuted by indictment without such examination or commitment, or without such leave of the court. ***" The Penal Code (section 1382) supplements the constitutional provision quoted by separately recognizing the two instances where prosecutions must be by information: (1) In all cases where there has been an examination and commitment, and commitment or admission to bail, by a magistrate, on a charge of crime; or (2) in any case where there has been no examination or commitment or admission to bail, upon leave granted by the court for that purpose. The information here expressly recites that *** in open court, on the 20th day of April, A. D. 1896, comes the county attorney, first having obtained leave of the court," etc. This averment makes the information, on its face, a valid and constitutional exercise of the authority vested in the county attorney to file the written accusation. We said in the case of State v. Brett, 16 Mont. 360, 40 P. 873: "It is not necessary, in order to vest power in the county attorney to file an information, that there shall be a preliminary examination and commitment. He may act, after leave has been granted by the court, in a case like the one at bar, where there may not have been any charge or information before a committing magistrate." And we say now, further, that there can be no interpretation put upon any statute of the state which will take away the constitutional right of prosecution by information filed in the district court after leave has been granted by the court, where there has been no examination and commitment, or where there has been no prosecution by indictment. The true construction of section 1910 of the Penal Code is that an information must be set aside: First, if it be a fact that leave to file the same has not been granted by the court; or, second, if it be a fact that before the filing thereof the defendant had not been legally committed by a magistrate; and, third, that it was not subscribed by the county attorney, or attorney prosecuting. Yet all of the facts enumerated in the first two of these subdivisions need not exist, as prerequisites to filing an information. To hold otherwise would be to destroy the meaning of the disjunctive clauses of the constitutional section heretofore quoted, which expressly authorize prosecution by information filed by leave of court without examination and commitment, or, after examination and commitment, without the leave of court. Section 1910 must therefore be construed, not as prescribing one indispensable method of procedure, and one only, but as pertaining to the two constitutional methods of procedure, where an information is filed, either one of which is indispensable, yet either of which is correct, as the conditions and facts of the case may warrant. Nothing in the case of State v. Mansfield, 19 Mont. 483, 48 P. 898, in any way conflicts with these views. The decisions of the California courts cited by appellant are also inapplicable, for the reason that the constitution and laws of that state do not allow the procedure of filing an information after obtaining leave of court. In State v. Brett, supra, it was said: "In California, by section 8, art. 1, of the constitution, offenses shall be prosecuted by information, after examination and commitment; and by section 995 of the Penal Code of California an information shall be set aside, if, before the filing thereof, the defendant has not been legally committed by a magistrate. People v. Christian, 101 Cal. 471, 35 P. 1043. Procedure like that of Montana, after obtaining leave of court, is not known to that state; and it is well to note that the annotations to sections 1730 and 1910 of the Penal Code now in force are not made with relation to the proper effect to be given to the authorization in the constitution of Montana permitting informations to be filed where leave of court has been obtained, without regard to whether there has been any preliminary examination before a magistrate." The sequel of these views is that the court properly denied the motion to quash.

2. A second motion to quash was filed, based upon the ground that leave to file the information had not been granted by the court, because no order granting such leave was ever made or entered by the court as is required by law. To support this motion, A. W. Swaney, clerk of the court, swore, by affidavit dated April 23, 1896, "that the only orders made by the said court concerning the above-entitled cause are those on page 606 of the minute book or journal of said court; that no order in writing has ever been filed in said court or cause by the district judge thereof, or any other person, granting leave to file an information charging the above-named defendant with the crime set forth in the information in said cause, or any other crime." The court overruled defendant's motion, which action of the court is assigned as error. The orders made by the court, and referred to in Swaney's affidavit, are that "on motion of the county attorney it was ordered that the minutes of April 20, 1896, page 606, be corrected to read as follows: 'The county attorney in open court, files and presents his motion to the court asking for leave to file an information against one Martin Bowser.' Thereupon the court, after hearing and fully considering said motion, ordered that leave be granted the county attorney to file said information." Appellant's contention is that an order granting leave to file an information must be made in writing, and when so made must be entered and filed, and that, unless it is so made and entered, the filing of the information is a nullity, or the information may be quashed, under subdivision 1 of section 1910, Pen. Code. The point is not made that there was no leave of court at all obtained before filing the information, but that no order was made in writing, and none was entered; that is to say, that an oral order granting leave to a county attorney to file an information is not valid, and especially is it invalid if not entered in the clerk's minutes. The answer to this argument is that by the statute it is not necessary that the order of the court granting leave to file an information be an order in writing, other than an entry in the minutes of the court kept by the clerk. The judge of the court speaks orally for the court, and orders that leave be granted. The judicial act is thus performed, and thereafter the ministerial duty of the clerk is to enter the order of the court. If the defendant is under arrest or in custody, it is doubtless the duty of the clerk to enter the order of the court granting leave at once; but if the defendant has not been arrested,--and the presumption here is that he was not,--under section 1386, Pen. Code, the clerk should not enter the order until immediately after the arrest. But the validity of the procedure by information is not destroyed, nor is the information rendered a nullity, by an omission of the clerk, unless it be a fact that leave to file the same has not been granted by the court. The procedure under the Criminal Code relating to the prosecution of criminal actions, in respect to orders for leave to file informations, is peculiar to our criminal practice. Its underlying...