State v. Clancy

• Decision Date: 28 February 1898
• Citation: 52 P. 267,20 Mont. 498
• Parties: STATE v. CLANCY.
• Court: Montana Supreme Court

52 P. 267

20 Mont. 498

STATE v. CLANCY.

Supreme Court of Montana

February 28, 1898

Appeal from district court, Silver Bow county; William Clancy Judge.

James Clancy was convicted of robbery, and appeals. Affirmed.

B. S Thresher and O. L. Bishop, for appellant.

C. B Nolan, Atty. Gen., for the State.

PIGOTT J.

The defendant was convicted upon an information accusing him of the crime of robbery, and charging his prior conviction of a like offense as the ground for a heavier punishment. By the judgment of the court he was sentenced to imprisonment at hard labor for 31 years. He appeals from the judgment, and from an order denying a new trial.

1. Defendant moved the court below to set aside the information for the reason that it was not verified; his contention being that such an information does not satisfy the requirements of section 7 of article 3 of the constitution of Montana, to the effect that no warrant to seize any person shall issue without probable cause, reduced to writing, and supported by oath or affirmation. The refusal of the trial court to grant this motion is the basis of the assignments of error upon which defendant chiefly relies. For the purposes of this case, we shall assume, without deciding, that the question was properly raised by motion, and that the action of the lower court is presented to us for review. We have given the question, which is one of first impression in this court, the most careful consideration. No useful purpose would be served by a detailed statement of the reasons which constrain us to the decision reached. Some cases are to be found which seem to conflict with the conclusion at which we have arrived, and of these we have not been unmindful. The statute law of the state, while making provision in regard to the contents of an information as well as to its formal parts, and requiring it to be signed by the county attorney, is silent with respect to verification. It is not upon slight or doubtful considerations that a court will declare that the legislature has disobeyed the constitution. State v. Camp Sing, 18 Mont. 129, 44 P. 516. And this argument would be entitled to some weight were it doubtful whether the constitutional provision here invoked required a specific oath in verification of an information, upon the principle that it is not to be presumed that the legislative assembly has deliberately omitted to provide for an essential and indispensable requisite to the validity of an information; in other words, if the matter were involved in doubt the meaning given to the constitutional provision and its interpretation by the lawmaking power, would not be without weight. But we do not think such doubt exists, and hence the principle referred to has not been a reason aiding us in reaching a conclusion. That portion of section 7 which is pertinent to the question before us prohibits the issuance of a warrant to seize any person unless probable cause therefor be reduced to writing, and be supported by oath. The duties of the county attorney are prescribed by law. Among other duties, he is under certain circumstances, required to file informations. He has taken and subscribed an oath to perform the duties imposed upon him. All the acts of such officer are performed under his oath of office, and ever duty he discharges is pursuant to, and in conformity with, the mandates of this oath. He cannot, in anything he does, escape from the force of its obligation. The probable cause which is required by the constitution is made to appear by the information in writing filed by him. This probable cause is necessarily supported by his official oath, which attends upon and accompanies all his acts, each of which is performed under the sanction of that oath. We are of the opinion, upon reason as well as upon the authority of adjudicated cases, that the requirement of the constitution that no warrant shall issue without probable cause, reduced to writing, and supported by oath or affirmation, is, prima facie, satisfied and complied with when an information charging a public offense is filed by the county attorney; and we are entirely satisfied that such an information is, prima facie, the statement of probable cause under oath, equally with an indictment presented upon the oath of grand jurors. In the one case the probable cause is reduced to a written information supported by the official oath of the county attorney; in the other, to an indictment, supported by the oath of the jurors. In the following citation of cases and text-books will be found countenance for the conclusion announced, although we think reason is so manifestly in accord with the doctrine that the added weight of...