State v. Bullis

• Decision Date: 20 July 1970
• Docket Number: No. 10209,10209
• Citation: 472 P.2d 315,93 Idaho 749
• Parties: STATE of Idaho, Plaintiff-Respondent, v. John BULLIS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 315

472 P.2d 315

93 Idaho 749

STATE of Idaho, Plaintiff-Respondent, v. John BULLIS, Defendant-Appellant.

No. 10209.

Supreme Court of Idaho.

July 20, 1970.

Rehearing Denied Aug. 17, 1970.

John Bullis, pro se.

Robert M. Robson, Atty. Gen., William D. Collins, Asst. Atty. Gen., Boise, for plaintiff-respondent.

McQUADE, Justice.

Defendant-appellant, John Bullis, was tried and found guilty of burglary in the second degree in February, 1968. Judgment was rendered accordingly, and Bullis has brought this appeal from that judgment.

During the evening of June 14, 1967, a person or persons broke into and removed merchandise from Hessner's Furs in Boise. Access to the furrier's shop had been gained through a hole which had been made through a wall between Hessner's and an adjoining tailoring establishment. A man identified as Bullis was observed carrying two large bundles containing furs from the vicinity of the rear of the two stores after working hours during the late daylight period of the evening of June 14, 1967. Bullis was seen putting the bundles into an automobile and later seen transferring similar bundles from an identical automobile to a truck. The furrier testified that Bullis had entered the fur store approximately a week before the burglary and had stood near the area into which the burglars had entered and from which the stolen merchandise had been taken.

On July 14, 1967, the grand jury appeared before the district court and presented its indictment. Appellant's counsel appeared in court three days later and arraignment was continued to September 18, 1967, because Bullis was then in Nevada. On September 18, 1967, the defendant, through his counsel, requested that the arraignment be continued. Appellant's counsel stated that he would waive all claims to a speedy trial and the prosecuting attorney agreed to the further delay. On October 9, 1967, appellant and his counsel appeared before the court, appellant was advised concerning the charge filed against him, and a copy of the indictment was furnished to him. Appellant then requested additional time in which to enter a plea.

On October 16, 1967, appellant, through his counsel, requested an additional week in which to enter a plea, and the court continued the case to October 23, 1967. On October 20, 1967, appellant's counsel filed a demurrer and a motion to quash the indictment. On October 23, 1967, appellant moved for a bill of particulars. On October 30, 1967, the day set for the hearing of appellant's motions, Bullis filed an amendment to the demurrer and an amendment to the motion to quash the indictment.

On October 30, 1967, the district court denied the appellant's amended motion to quash the indictment, overruled his amended demurrer, and denied the motion for a bill of particulars. The deputy prosecuting attorney then moved to amend the indictment by inserting the words 'Ada County' after the words 'Boise City,' and to change the charging code section stated on the face of the indictment from 'I.C. § 18-1402' to 'I.C. § 18-1401.' The district court granted both motions and directed the clerk to amend the indictment by interlineation. Appellant then pled 'not guilty.' On November 6, 1967, the case was set for trial to be held on February 8, 1968.

On January 22, 1968, counsel for appellant argued a motion to withdraw as counsel. Appellant stated that it was his desire to have his attorney withdraw as counsel and that he intended to obtain new counsel. The deputy prosecuting attorney objected to the change of counsel if it would cause the trial setting to be vacated. Appellant stated that a change of counsel would not interfere with the trial setting, and the district court then granted the motion to withdraw as counsel. On January 23, 1968, appellant stated that he was unable to obtain counsel, but, on January 26, 1968, Theron E. Roberts of the firm of Roberts & Poole appeared on behalf of appellant and was entered as counsel of record for him.

On February 1, 1968, appellant moved to vacate the trial setting, and the trial court denied his motion. On February 8, 1968, the action came to trial, at which time appellant again moved for a continuance contending that he and his new counsel had not had adequate time to prepare his defense. Appellant's motion was again denied.

At the conclusion of the trial, the jury returned a verdict 'guilty as charged in the indictment.' On February 14, 1968, appellant was sentenced to an indeterminate term not to exceed three years in the Idaho State Penitentiary.

Appellant in his first assignment of error contends that the district court should not have allowed the prosecuting attorney to have the indictment amended by the insertion of 'Ada County' and change of the charging section 'I.C. § 18-1402' to 'I.C. § 18-1401.' We do not agree with appellant's contention. It was not error to allow these amendments. I.C. § 19-1419 provides that no indictment is insufficient by reason of any defect in matter of form which does not prejudice a substantial right of a defendant. I.C. § 19-1418 sets out the requisites for a sufficient indictment:

'19-1418. Sufficiency of indictment.-The -The indictment is sufficient if it can be understood therefrom:

1. That it is entitled in a court having authority to receive it, though the name of the court be not stated.

2. That it was found by a grand jury of the county in which the court was held.

3. That the defendant is named, or, if his name can not be discovered that he is described by a fictitious name, with a statement that his true name is to the jury unknown.

4. That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.

5. That the offense was committed at some time prior to the time of finding the indictment.

6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

7. That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon conviction, according to the right of the case.'

The indictment in this case sets out clearly and in language easily understood the facts sufficient to establish the jurisdiction of the district court, and the act or omission constituting the offense of which Bullis was convicted. The change in code sections, from I.C. § 18-1402 which describes the difference between burglary in the first degree and burglary in the second degree to I.C. § 18-1401 which defines the crime of burglary in general did not have the effect of changing the offense with which appellant was charged. It was easily ascertained, both before and after the amendments of which appellant complains, what offense appellant allegedly committed and where it occurred. No substantial right of appellant having been affected by the amendments and because the unamended indictment was initially substantially sufficient under I.C. §§ 19-1418, 19-1419, the trial court did not err in allowing the amendments which concern matters of form only. ¹

Appellant's second assignment of error is that the grand jury found the indictment solely upon hearsay and secondary evidence in violation of I.C. § 19-1105. ² The basis for this assignment is that, according to the endorsement on the indictment, the only witness heard by the grand jury was a police detective who investigated vestigated the burglary. The detective was not, however, a witness to any of the circumstances surrounding the crime. Appellant argues, therefore, that the detective could not have described enough of the circumstances to allow the grand jury to have found that there was reasonable ground for believing that Bullis had committed the burglary with which he was charged unless it had done so on the basis of hearsay evidence.

Appellant has presented no record on appeal of what evidence was before the grand jury. I.C. § 19-1102 only requires that the grand jury find 'that there is reasonable ground for believing that a particular individual named or described (in the presentment) has committed (a certain public offense.)' Absent a record there is no indication of the contents of the detective's testimony. Nor is there any indication of what, if any, depositions or affidavits of other prosecution witnesses were before the grant jury pursuant to I.C. § 19-1105. In the absence of a record on appeal we will not speculate that the proceedings and deliberations of the grand jury were irregular or unlawful. ³

Appellant, in his third assignment of error, argues that there was not a necessary quorum of grand jury members present when the indictment was found against him. I.C. § 2-502 provides that sixteen persons shall constitute a grand jury, but that only twelve of them shall constitute a quorum. Appellant asserts that only fifteen members of the grand jury were present to indict him, the sixteenth having died between the time of the constitution of the grand jury and the finding of the indictment. Because more than twelve grand jurors were present when the indictment was found there was a quorum present under the language of I.C. § 2-502.

Appellant alleges that the lack of a transcript of the grand jury's proceedings constituted prejudicial error. I.C. § 19-1112 declares that grand jury proceedings must be secret, except for certain specific exceptional instances not here relevant. I.C. § 18-4403 makes it a misdemeanor for any grand juror to disclose any part of the...