State v. Brady
| Decision Date | 15 March 1967 |
| Docket Number | No. 10653,10653 |
| Citation | 18 Utah 2d 434,425 P.2d 155 |
| Parties | d 434 The STATE of Utah, Plaintiff and Respondent, v. C. W. BRADY, Jr., Defendant and Appellant. |
| Court | Utah Supreme Court |
Harley W. Gustin, Gustin & Richards, Salt Lake City, for appellant.
Phil L. Hansen, Atty. Gen., Ronald N. Boyce, Asst. Atty. Gen., Salt Lake City, for respondent.
This is a criminal action wherein appellant was charged with perjury in the first degree. The defendant was convicted in the court below and from the verdict and judgment appellant has appealed to this Court.
Indictment accused the defendant of having testified falsely on the 7th day of May, 1965, before the Honorable Maurice D. Jones, Judge of the City Court, Salt Lake City. The charging part of the indictment is as follows:
That on or about the 7th day of May, 1965, at the County of Salt Lake, State of Utah, the said C. W. BRADY, JR. committed Perjury in the First Degree by falsely testifying before the Honorable Maurice D. Jones, Judge of the City Court of Salt Lake City, State of Utah, after having been duly sworn upon oath to tell the truth to the following material facts:
Q. Did Mr. Newsom inform you of the time of departure and when you were going to leave? Did he have anything to do with the arrangements for the trip?
A. I don't think so, no.
Q. Did you ever discuss this with Mr. Newsom prior to his submitting the lease to the County that was eventually signed?
A. Never did I ever discuss the mechine with anybody.
Q. After you returned to Salt Lake, and before you were informed that Midvale Motors had purchased this machine, was the County testing this machine?
A. You bet, we were.
Q. And were any reports submitted to you as to the result of the tests?
A. Mr. Nerdin contacted me quite frequently, and went out to the scene quite frequently to see the tests.
Q. Do you remember whether or not it was used during September of 1963?
A. No, I would not know.
Q. Do you know whether it was used during October of 1963?
A. No, You'd have to go back to the records on that.
Q. Do you know whether it was used during November of 1963?
A. No, but I'm sure the records we'd have would show whether it was or was not.
Q. Are you aware of the fact that the machine was not used at all during January and February and part of December?
A. As I recall, the machine was used, and I think we used it in the Chesterfield area, and I think we used the machine right up until Christmas.
Q. Do you know that it sat in the lot down there not being used through January and February?
A. No, I didn't know this.
Q. Do you remember Mr. Schemahorn back in Indiana discussing the fact that they put their machine away from Labor Day until May?
A. No, I do not. We used this machine up until December, I'm sure, right until Christmastime.
Q. Did Mr. Nerdin ever inform you that the machine was sitting idle during January?
A. Oh, I knew the machine was--as a matter of fact, at that time we used it, like I say, up until December, and the weather moved in, and we was hoping to get the project completed in Chesterfield, and we left the machine in Chesterfield. And then we had to take it from Chesterfield back out to the shop, and this was sometime in January. We had to get the machine out of there.
Q. What other type of equipment have you leased in the past for the County?
A. I think we leased a garbage packer or two of them through the Purchasing Department. I think we also and are presently leasing from--well, you can check the name. It would be in the records. Leasing some sweepers.
During the year 1963 and a portion of the year 1964 covered by Judge Jones in his questioning of the defendant, Mr. Brady was chairman of the Salt Lake County Board of Commissioners, in charge of roads and bridges. It appears from the record that Judge Jones was proceeding under what is referred to in the record as a 'John Doe complaint,' which complaint was never filed nor made a matter of record in the City Court. The charging part of the unfiled complaint that Judge Jones was proceeding under is as follows:
That John Doe, Jane Doe and Richard Doe on or about the 23d day of August, A.D. 1963, at the County of Salt Lake, State of Utah, did commit the crime of accessory to the crime of attempting to bribe an executive officer, in violation of Title 76, Chapter 1, Sec. 45, Utah Code Annotated 1953, as follows, to-wit: That the said John Doe, Jane Doe and Richard Doe, at the time and place aforesaid, having full knowledge that a felony had been committed, to-wit: the attempted bribery of an executive officer, in violation of 76--1--30 and 76--28--3, Utah Code Annotated 1953, did conceal the same from a magistrate; contrary to the provisions of the statute of the state aforesaid, in such cases made and provided, and against the peace and dignity of the State of Utah.
It appears that the judge of the city court was proceeding pursuant to the provisions of Section 77--11--2, U.C.A.1953 and Section 77--11--3, U.C.A.1953. The first of these statutes is as follows:
Person having knowledge must make.--Every person who has reason to believe that a crime or public offense has been committed must make complaint against such person before some magistrate having authority to make inquiry of the same.
The second statute above referred to is as follows:
Complainant to be examined.--When a complaint is made before a magistrate charging a person with the commission of a crime or a public offense, such magistrate must examine that complainant, under oath, as to his knowledge of the commission of the offense charged, and he may also examine any other persons and may take their depositions.
In this case we are faced with the problem of determining the nature and the scope of the investigation permitted by our statute. The statutes of some states provide that a magistrate may act as a 'one-man grand jury' to make a general investigation into whether or not a crime has been committed and if so, by whom. 1 The states of Wisconsin, Kansas and South Dakota authorize a 'John Doe proceeding' which has similar objectives. 2 It will be observed that the language of the statutes of the above mentioned states is entirely different than our statutes above referred to. For example, the language of the statutes of the State of Wisconsin provides in part as follows:
If a person complains to a magistrate that he has reason to believe that a crime has been committed within his jurisdiction, the magistrate shall examine the complainant on oath and any witnesses produced by him (or by the District Attorney) * * * to ascertain whether a crime has been committed and by whom committed. 3
It will be noted that the language of the statute just quoted is not designed to investigate a charge against a specific person as required by our statute.
It appears that the legislature by limiting our statute to cases where a person is charged with the commission of an offense did not intend to extend the scope of the magistrate's investigation to a general inquisition of crime or public offenses. Had the legislature intended to authorize the 'John Doe proceedings'--a general preliminary investigation,--it undoubtedly would have provided for certain safeguards as have the other states which have adopted that procedure. It appears that our statute, Section 77--11--3, U.C.A.1953, was taken from the New York Code. 4 The New York court in dealing with the statute decided that it gave no general power of inquisition to a magistrate. The court stated: 5
It will be observed that the complaint before the magistrate out of which the indictment arose failed to charge any person with commission of an offense, and it is doubtful whether it stated the public offense at any event. Be that as it may, it appears that the proceeding before the judge of the city court was an investigation unauthorized by the statute and as such was nugatory. It is further observed that the complaint was not filed with the court and any hearing conducted by a judge of that court was not a judicial proceeding as contemplated by Section 76--45--7, U.C.A. 1953. 6
The appellant's motion to suppress the testimony or deposition given by him should have been granted.
The judgment of the lower court is reversed and the appellant is ordered discharged.
I agree with the result reached in the prevailing opinion but cannot agree that a committing magistrate cannot lawfully examine witnesses under oath before a written complaint is filed. The statutes set forth in the prevailing opinion make it the duty of a person having reason to believe that a crime or public offense has been committed to make complaint before some magistrate. Section 77--10--1, U.C.A.1953, defines a complaint to be 'a statement in writing made to a court or magistrate that a person has been guilty of some designated offense.' This statute, when read in connection with those quoted in the main opinion, makes it the duty to sign a complaint, but the practical application of the law in relation to the necessities of the situation requires that an oral complaint be made first. This is done for the purpose of causing the magistrate to act. If he believes the complaining witness, he will prepare the written complaint himself or direct the county attorney to do so under his direction. He is not compelled to issue a written complaint at all, and he may think that the complaining witness is not being truthful and so want further information before determining whether to issue the complaint or not.
Section 77--11--3, U.C.A.1953, reads:
When a complaint is made before a magistrate charging a person with the commission of a crime or public offense, such magistrate must...
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