State v. Burwell
| Decision Date | 27 May 1947 |
| Docket Number | 7330 |
| Parties | STATE v. BURWELL |
| Court | Idaho Supreme Court |
Appeal from District Court, Fifth District, Bannock County; L. E Glennon, Judge.
Reversed and remanded with directions.
H. J Swanson, of Pocatello, for appellant.
The order entered sustaining the demurrer to the original information is a judgment; and has the force and effect of a judgment.
I.C.A § 19-1606. It is an appealable judgment. I.C.A. § 19-2704, subd. 1; People v. Jordan, 65 Cal. 644, 4 P. 683; People v. Lee, 107 Cal. 477, 40 P. 754.
The Court in failing to arraign the defendant on the amended information and giving the defendant an opportunity to plead, and the defendant never having entered a plea and never having refused to plead, he could not be tried, and the proceedings had are in violation of his constitutional rights. State v. Chambers, 9 Idaho 673, 75 P. 274; State v. Crea, 10 Idaho 88, 76 P. 1013; State v. Poynter, 34 Idaho 504 (), 205 P. 561, 208 P. 871; Article 1, Section 13, Idaho Constitution; People v. Corbett, 28 Cal. 328; People v. Monaghan, 102 Cal. 229, 36 P. 511.
Robert Ailshie, Atty. Gen., and J. R. Smead, Asst. Atty. Gen., for respondent.
An order sustaining a demurrer to an information and directing that an amended information be filed is not a final judgment. The court retains jurisdiction over the defendant at all times thereafter. In re Pierce, 8 Idaho 183, 67 P. 316; State v. Bilboa, 38 Idaho 92, 95, 96, 213 P. 1025, 222 P. 785.
When the record on appeal shows that the arraignment occurred and a plea of not guilty was entered, this is sufficient. It cannot be contradicted by an affidavit or in a bill of exceptions. Bray v. State, 16 Ala.App. 433, 78 So. 463; Johnson v. United States, 225 U.S. 405, 411, 32 S.Ct. 748, 56 L.Ed. 1142, 1144.
Assuming that no formal plea of not guilty is entered, if defendant proceeds with his trial without objection on that ground, this is a waiver of such lack of plea. The same is true of lack of formal arraignment. State v. Poynter, 34 Idaho 504, 205 P. 561, 208 P. 871; State v. Ward, 51 Idaho 68, 72, 73, 1 P.2d 620; Ann.Cas.1917D, 830 et seq.; State v. Garland, 65 Wash. 666, 118 P. 907.
Miller, Justice. Porter, District Judge, concurs. Budge, C. J., and Ailshie, J., did not sit at the hearing or participate in the decision. Holden, Justice, concurring specially. Givens, Justice, dissenting.
October 15, 1945, a Prosecuting Attorney's Information was filed in the District Court of the Fifth Judicial District of the State of Idaho, in and for Bannock County, charging George Burwell, defendant and appellant, with adultery. December 3, 1945, appellant appeared in court for arraignment, at which time a motion to set aside the information and a demurrer thereto were filed. The motion and demurrer were set for hearing for December 17, 1945. Both the motion and demurrer were dated December 3, 1945, but were not filed until December 7, 1945. December 27, 1945, the motion and demurrer came on for hearing. December 28, 1945, the motion was denied in its entirety and an order sustaining the demurrer on the ground that it did not conform to Section 19-1310, I.C.A., in that the date of the commission of the offense was uncertain, was made and entered. The Prosecuting Attorney was allowed until January 10, 1946, to file an amended information.
A Prosecuting Attorney's Amended Information was filed January 14, 1946. Said information, among other things, recites that the Prosecuting Attorney "in proper person comes into said District Court in the County of Bannock, State of Idaho on the 8th day of January, 1945, and gives the Court to understand and be informed that George Burwell is accused by this information of the crime of Adultery which said crime was committed as follows, to-wit: * * *" February 9, 1946, a plea to the jurisdiction and a plea in bar were filed, in which the dates of hearing of the demurrer and the time in which to file an amended or new information were shown, and that because the amended information was not filed until January 14, 1946, the time for filing such information had terminated and further proceedings thereon were barred. April 12, 1946, an order denying and overruling the plea in bar and the plea to the jurisdiction was made, but was not filed until May 15, 1946. A court minute, dated May 12, 1946, recorded May 15, 1946, shows that it was ordered that the plea in bar and the plea to the jurisdiction were denied and overruled. May 16, 1946, a court minute was entered, in which it is shown that the case of State of Idaho v. George Burwell was set for Wednesday, May 29, 1946. June 3, 1946, a court minute shows that the case came on regularly for trial, and a jury of twelve persons was selected and sworn to try said cause. Said court minute shows: "The Information was read to the jury and the defendant's plea stated."
A court minute shows that witnesses were called and examined on behalf of the State and the State rested; that arguments of counsel for the respective parties were heard; that the jury received the instructions of the Court and retired to consider their verdict, and subsequently returned into court, and, being asked by the Court if they had agreed upon a verdict, they, through their foreman, presented their verdict finding the defendant guilty as charged in the information. Thereupon, the appellant announced his intention to move for a new trial, and in the event of the denial of the motion and after judgment had been pronounced, he declared his intention to appeal to the Supreme Court of the State of Idaho. The time for passing sentence was set for June 15, 1946. The instructions to the jury are contained in folios 57 and 91. The verdict of the jury was filed June 4, 1946. Application for a new trial was filed June 13, 1946, and in which it is set out as errors of laws:
A motion in arrest of judgment was filed June 15, 1946. An affidavit of defendant was filed June 15, 1946, in which it is shown
On June 15, 1946, the Court heard arguments on the motion for new trial and fixed June 28, 1946, as the time for ruling thereon. On June 28, 1946, a court minute shows the ruling of the court on the motion in arrest of judgment and the motion for new trial. Both motions were denied and the defendant was sentenced to serve a term of not less than one nor more than three years in the State Penitentiary, and was required to give a bond in the sum of $ 1000, pending the filing of appeal, and that execution of judgment was stayed until July 8, 1946, to allow defendant to file the required bond. June 28, 1946, a certificate of probable cause and stay of execution was made and entered, and on said date, a notice of application for bail was filed, and an order fixing amount of bail in the sum of $ 1000 was made, and likewise on said date, judgment and commitment was made and entered.
An order denying motion in arrest of judgment and order denying motion for new trial, dated June 28, 1946, filed July 8, 1946, was made and entered. Exception to order denying motion in arrest of judgment and order denying motion for new trial was filed and served by appellant. Exception to judgment, as of same date and filing, was likewise made and entered. July 9, 1946, notice of appeal from the judgment and from the order denying the motion in arrest of judgment and from the order denying defendant's motion for new trial was filed and served.
The record in this case does not contain a reporter's transcript and is submitted exclusively upon the clerk's transcript.
Appellant has specified various errors, but they related to but two questions, viz.: (a) Could the Prosecuting Attorney file an amended information after the date fixed by the court had expired without securing an extension of time within which to file the same, and (b) in the absence of an arraignment and plea, was there anything for determination, there being no issue involved?
In passing upon these questions, certain statutory provisions must be considered. Our statutes relating to pleadings by a defendant and informations were taken from California, and are identical therewith prior to amendment, and the following sections are particularly applicable:
Section 19-1612, I.C.A., provides:
Section 19-1613, I.C.A., is as follows:
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...I.C.A., and the failure to require such plea and have it entered upon the minutes of the court is reversible error. State v. Burwell, 67 Idaho 373, 181 P.2d 197. of witness inconsistent with testimony are not admissible to prove truth of facts stated, but only for impeachment. State v. Bush......
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...I.C. sec. 19-2101 was reversible error. State v. Chambers, 9 Idaho 673, 75 P. 274; State v. Crea, 10 Idaho 88, 76 P. 1013; State v. Burwell, 67 Idaho 373, 181 P.2d 197. As was maintained in the second specification of error, supra, all the trial jurors were apparently in the courtroom but h......