State v. Braithwaite
| Decision Date | 28 September 1891 |
| Citation | 27 P. 731,3 Idaho 119 |
| Parties | STATE v. BRAITHWAITE |
| Court | Idaho Supreme Court |
INFORMATION-PRELIMINARY EXAMINATION FOR COMMITMENT-CONSTITUTION CONSTRUED.-Section 8 article 1, of the constitution of Idaho, authorizes proceedings either by indictment or by information. That section, in connection with the act of the legislature passed to carry into effect the provisions of said section (see First Session Laws of Idaho, page 184), authorizes a proceeding by information only where a defendant has had a preliminary examination as prescribed by chapter 7 of title 3 of the Penal Code of Idaho, or has waived such examination or is a fugitive from justice.
(Syllabus by Sullivan, C. J.)
APPEAL from District Court, Bingham County.
Reversed.
Orr & Orr, for Appellant.
The allegations of the information being made upon information or belief, the verification in this form is ambiguous, uncertain and fatally defective. (Act March 13, 1891, sec. 3; In re Hotchkiss, 58 Cal. 39.) An information is properly filed by the district attorney only when the defendant has been regularly committed, and has had a preliminary examination in accordance with the forms of law. (Const., art. 1, sec. 8; Act March 13, 1891, secs. 6-8; People v. Evans, 72 Mich. 367, 40 N.W. 473; Kalloch v. Superior Court, 56 Cal. 229.) The committing magistrate had no authority to issue a warrant, and could not acquire jurisdiction until a complaint or deposition had been filed with him charging an offense. (Rev. Stats., secs. 7509, 7516-7519, 7530, 7552; State v. Wakefield, 60 Vt. 618, 15 A. 181.)
George H. Roberts, Attorney General, for the State.
An information may be verified upon information and belief. (Washburn v. People, 10 Mich. 385; State v. Montgomery, 8 Kan. 355.) A plea of guilty cures all irregularities up to the arraignment.
This is an appeal from the district court of the fifth judicial district. The facts are substantially as follows: The appellant was arrested for the crime of grand larceny, and taken before a committing magistrate. The record shows that a warrant of arrest was issued, but fails to show that a complaint or information or any depositions were laid before the magistrate charging the commission of a public offense as required by section 7516 of the Revised Statutes of Idaho, either before or after the issuance of the said warrant of arrest. The record further shows that a preliminary examination was held, and the depositions of two witnesses taken. The following commitment was indorsed on said depositions: "It appearing to me that the offense in the within depositions mentioned has been committed, and that there is sufficient cause to believe that the within-named John Braithwaite is guilty thereof, I order that he be held to answer the same, and that he is admitted to bail in the sum of five hundred dollars, and is committed to the sheriff of the county of Bingham until he give such bail." It is certified in the record that it contains a record of all the proceedings by and before the committing magistrate, and contains all of the papers transmitted to the district court by said magistrate. The depositions of John G. Brown and C. Devinney are the only depositions contained in the record, neither of which contains a question put to the witnesses. At the June term of the district court the district attorney filed an information against the appellant, charging him with grand larceny, which information was filed under and by virtue of section 8 of an act entitled "An act to provide for prosecuting offenses on information, and to dispense with calling grand juries except by order of the district judge," approved March 13, 1891. (See 1st Sess. Laws Idaho, p. 186.) Said information contained the following indorsement, to wit: "Names of witnesses whose depositions were examined before filing the foregoing information: John G. Brown and C. Devinney." After said information had been filed in the said district court, the appellant, by his attorneys, filed a motion to quash the information, on the ground, among others, "that, previous to the filing of the information, the defendant had not been committed or held to answer by any magistrate having authority to commit," which motion was overruled by the court, to which ruling the defendant duly excepted, and assigns said ruling as error. Thereafter ...
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State v. Windsor
...absent compliance with the statutes regarding preliminary examinations. Idaho Constitution art. I § 8; I.C. § 19-804; State v. Braithwaite, 3 Idaho 119, 27 P. 731 (1891); State v. West, 20 Idaho 387, 118 P. 773 (1911). State v. Ruddell, 97 Idaho 436, 439, 546 P.2d 391, 394 [110 Idaho 432] t......
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State v. Nolan
...held before him cannot have any legal effect. Sec. 7662, Rev. Codes, providing for preliminary examination, is mandatory. (State v. Braithwaite, 3 Idaho 119, 27 P. 731.) showing should be made by affidavit or otherwise, that the names of additional witnesses were not known to the prosecutin......
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State v. Williams
...a felony charge. This requirement has been held jurisdictional. State v. Ruddell, 97 Idaho 436, 546 P.2d 391 (1976); State v. Braithwaite, 3 Idaho 119, 27 P. 731 (1891). The Idaho Legislature has prescribed a probable cause standard for commitment by a magistrate after a preliminary examina......
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State v. Pierce
...imposed by federal courts. See, e.g., State v. Owens, 101 Idaho 632, 619 P.2d 787 (1980) (decided after Gerstein ); State v. Braithwaite, 3 Idaho 119, 27 P. 731 (1891). We recognized this divergence in State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct.App.1982). Based upon prior Idaho Supr......