State v. Carlson

• Decision Date: 12 March 1913
• Citation: 23 Idaho 545,130 P. 463
• Parties: STATE, Respondent, v. EMIL CARLSON, Appellant
• Court: Idaho Supreme Court

130 P. 463

23 Idaho 545

STATE, Respondent, v. EMIL CARLSON, Appellant

Supreme Court of Idaho

March 12, 1913

PRELIMINARY EXAMINATION-EVIDENCE-CERTIFICATION.

1.By the provisions of sec. 7576, Rev. Codes, as amended by the act of March 3, 1909, Laws of 1909, p. 146, two methods are provided governing the taking of testimony at a preliminary examination: First, when the evidence is taken in writing the same must be signed and sworn to by the witness, and the evidence must also be signed and certified by the magistrate second, when the evidence is taken by a duly appointed stenographer in shorthand at the request of the prosecuting attorney, it must be transcribed and certified to as true and correct by such stenographer.

2.The provision of sec. 7576, Rev. Codes, as amended byLaws of 1909, p. 146, is mandatory in requiring that the evidence taken at a preliminary examination shall be in writing and subscribed by the witness, or taken by a stenographer appointed as provided in said section, and certified to by the stenographer.

3.Under the provisions of sec. 7576, the evidence of witnesses at a preliminary examination, if taken in writing must be certified by the magistrate, but where such evidence is taken by a stenographer and transcribed and certified by such stenographer, the certificate of the magistrate to the testimony becomes unnecessary; the certificate of the stenographer takes the place of the certificate of the magistrate as to the correctness of the evidence.

APPEAL from the District Court of the Ninth Judicial District for Bonneville County.Hon. James G. Gwinn, Judge.

A prosecution for maintaining a common nuisance.Judgment of conviction.Affirmed.

Affirmed.

J. Ed Smith, for Appellant.

The magistrate committed the defendant to the custody of the sheriff, without the existence of any deposition or depositions, either written or transcribed, which were or could have been signed or certified by the magistrate, at the time he committed the defendant, nor that could have filled the requirements of the provisions of secs. 7571 or 7576, Rev. Codes, nor of sec. 2 of the act creating county stenographers, Sess. Laws 1909, p. 146, amending subsec. 4 thereof, as to reading to and signing by the witness, but leaving the other four mandates of sec. 7576 still in force and mandatory.(State v. Braithwaite,3 Idaho 119, 27 P. 731;Kalloch v. Superior Court,56 Cal. 229;People v. Evans,72 Mich. 367, 40 N.W. 473;People v. Carty,77 Cal. 213, 19 P. 490;People v. Buckley, 143 Cal. 375, 77 P. 169.)

The provisions of sec. 7576, Rev. Codes, as to the holding of examination, and the taking of testimony and certifying the same by the magistrate, should be substantially complied with, and after all the evidence has been taken, then the magistrate under the statute, is required to make a final certificate, certifying that the requirements of this section of the statute have been complied with.(State v. Yturaspe,22 Idaho 360, 125 P. 802.)

D. C. McDougall, Attorney General, O. M. Van Duyn and J. H. Peterson, Assistants, for Respondent.

Technical errors are insufficient unless actual prejudice to some substantial right of defendant exists.Defendant does not contend that he has been injured in any substantial right.( State v. Clark,4 Idaho 7, 35 P. 710.)

STEWART, J. Sullivan, J., concurs.AILSHIE, C. J., Dissenting in Part and Concurring in Judgment.

OPINION

STEWART, J.

A complaint was filed against the appellant in the probate court of Bonneville county, charging him with the crime of maintaining a common nuisance in Idaho Falls, contrary to the provisions of sec. 8 of the search and seizure act as found in Sess. Laws of 1911, p. 30.On January 11, 1912, a preliminary examination was held before the probate judge of said county.At the preliminary examination a stenographer was present, who was appointed by the board of county commissioners under the provisions of an act approved March 3, 1909, Laws of 1909, p. 146, and such stenographer took and transcribed the testimony of the witnesses in said examination, and after transcribing the shorthand notes certified to the same as follows:

"I, Della Lundgren, do hereby certify that I am the duly appointed, qualified and acting reporter for Bonneville county; that I reported the evidence and proceedings had at the hearing in the above entitled action in shorthand; that the above and foregoing is a true and correct transcript of the evidence given at said hearing, and that the same was transcribed from the shorthand notes, and taken by me at said hearing.DELLA E. LUNDGREN."

Upon the conclusion of the preliminary examination the probate judge made an order as follows: "This matter coming on for hearing this 11th day of January, 1912, and after listening to the evidence adduced on the part of the state and the evidence adduced on the part of defendant, and it appearing to me that the offense of maintaining a common nuisance in the City of Idaho Falls, County of Bonneville, State of Idaho, has been committed, and that there is sufficient cause to believe the within named Emil Carlson guilty thereof, I order that he be held to answer the same to the district court of the Ninth Judicial District in and for the county of Bonneville, State of Idaho, and that he be admitted to bail in the sum of $ 500.00, and committed to the sheriff of the county of Bonneville, State of Idaho, until he gives such bail."

On January 26, 1912, the docket entry committing the defendant to the district court was filed in the district court, together with the transcript of the evidence at said preliminary examination.Upon that day the prosecuting attorney filed an information in the district court charging the defendant with maintaining a common nuisance; on January 27, 1912, the defendant before pleading to the information filed a motion to quash the information upon the grounds that the court had no jurisdiction to try the cause, for the reasons that previous to the filing of the information the defendant had not been committed by any magistrate having jurisdiction or authority to commit him, and that the commitment was procured contrary to the provisions of sec. 8, art. 1 of the constitution of Idahoandsec. 7576, Rev. Codes.This motion was overruled, and an exception was taken by the defendant and the ruling of the court is assigned as error.

On February 27, 1912, the defendant pleaded not guilty to the information.The defendant was tried before a jury and a verdict of guilty was found by the jury on June 5, 1912....