State v. Chevigny

• Decision Date: 16 January 1914
• Citation: 138 P. 257,48 Mont. 382
• Parties: STATE v. CHEVIGNY.
• Court: Montana Supreme Court

138 P. 257

48 Mont. 382

STATE v. CHEVIGNY.

Supreme Court of Montana

January 16, 1914

Appeal from District Court, Missoula County; Frank C. Webster Judge.

J. L Chevigny was convicted of arson, and he appeals. Affirmed.

W. L Murphy, of Missoula, for appellant.

D. M Kelly, Atty. Gen., and C. S. Wagner, Asst. Atty. Gen., for the State.

BRANTLY C.J.

Early in the morning of October 25, 1911, a building occupied as a lodging house, in the city of Missoula, was destroyed by fire. On November 29th the defendant was, after examination by a justice of the peace, held under bail to answer in the district court on the charge of arson for setting fire to the building. The justice transmitted the transcript of the testimony heard by him and all the papers in connection with the case to the clerk of the district court, and they were filed by the latter on December 5th. On January 5, 1912, the county attorney filed an information charging the defendant with the crime of arson. Leave of court for this purpose was not asked nor granted. Thereafter the defendant appeared with his counsel and, upon arraignment, waived the reading of the information and at once entered a plea of not guilty. A trial resulted in a verdict of guilty of arson in the first degree. From the judgment entered thereon and an order denying his motion for a new trial, the defendant has appealed. Counsel contends that the judgment should be reversed, for that the district court was without jurisdiction to try the defendant upon the information; that the verdict is contrary to the evidence; and that the court committed error in submitting instructions to the jury.

1. The jurisdiction of the court is challenged on the ground that the information was filed without leave of court more than 30 days after the testimony and papers in the case had been filed with the clerk. Under the statute (Rev. Codes, § 9105) when the defendant has been examined and committed or held to bail, the county attorney must file an information within 30 days after the complaint, warrant, and testimony have been delivered to the proper district court, or, when there has been no examination, within 30 days after leave granted by the court. He is subject to punishment for contempt and also to prosecution for neglect of duty if he fails to do so, unless he is excused by the court, as provided in section 9107. Under section 9193, the court must, at the time of arraignment, on motion set the information aside, if leave to file it has not been granted by the court, or the defendant has not been committed or held to bail by a magistrate. In order to invoke the power of the court in this behalf, however, the motion must be in writing, subscribed by the defendant or his counsel, and must specify the particular ground of objection. Furthermore, the motion must be made before demurrer or plea, or the objection is waived. Section 9194. The requirements found in sections 9105, 9107, and 9193 are mandatory. The purpose of them is to spur the county attorney to prompt attention to his duty and to compel him to exercise the extensive powers of his office, so far as they relate to the prosecution of criminal offenses, not arbitrarily, but subject to the control of the court and in subordination to establish rules. Nevertheless, the observance or non-observance by him of the rules thus prescribed does not affect the jurisdiction of the court nor the substantial merits of the particular case, but has to do merely with the regularity of previous proceedings. The defendant may insist that they be observed, but he need not do so. If he does not, the court is authorized and required by section 9194 to proceed upon the assumption that all antecendent requirements have been observed. This section is not less mandatory than are the others, and, if the defendant does not invoke it at the proper time and in the way pointed out by it, he will thereafter not be heard to complain. State v. Smith, 12 Mont. 378, 30 P. 679; State v. McCaffery, 16 Mont. 33, 40 P. 63; State ex rel. Nolan v. Brantly, 20 Mont. 173, 50 P. 410; State v. Schnepel, 23 Mont. 523, 59 P. 927; State v. Peterson, 24 Mont. 85, 60 P. 809; State v. Lagoni, 30 Mont. 472, 76 P. 1044. Counsel for the defendant...