State v. Cowen

• Decision Date: 30 December 1916
• Citation: 29 Idaho 783,162 P. 674
• Parties: STATE, Plaintiff, v. FREDERICK J. COWEN, District Judge of the Sixth Judicial District of Idaho, Defendant
• Court: Idaho Supreme Court

162 P. 674

29 Idaho 783

STATE, Plaintiff, v. FREDERICK J. COWEN, District Judge of the Sixth Judicial District of Idaho, Defendant

Supreme Court of Idaho

December 30, 1916

SERVICE-NOTICE OF APPEAL-PROBATE AND JUSTICE'S COURTS-SUFFICIENCY-APPLICATION-CHANGE OF VENUE-JURISDICTION-DISTRICT COURTS.

1. The notice of appeal in a criminal case, prosecuted in a probate or justice's court, must be filed with the judge or justice of the court wherein a conviction was had and service thereof made on the prosecuting attorney of the county; and the transcript of the proceedings had in said court should affirmatively show both the filing and the service thereof.

2. Held, under the facts in this case, that the service of the notice of appeal was adequately made.

3 Secs. 7655, 7768, and 7775, Rev. Codes, providing that criminal actions prosecuted by indictment (or information) may be removed for trial to an adjoining county, upon application for a change of venue by the defendant or the state, upon the ground that a fair and impartial trial cannot be had in the county where the offense is alleged to have been committed, do not apply to misdemeanor cases properly brought in probate or justice's courts and appealed to the district court for trial de novo.

[As to application for change of venue on ground of bias of judge as ousting judge of jurisdiction, see note in Ann.Cas. 1916D 1281]

Original application by Solon B. Clark and W. W. Adamson for writ of prohibition to the District Court of the Sixth Judicial District in and for Bingham County, and Frederick J Cowen, as Judge thereof. Demurrer to alternative writ overruled and motion to quash denied. Writ ordered issued.

Permanent writ of prohibition issued.

J. H. Peterson, Atty. Genl., Solon B. Clark, Pros. Atty., C. V. Hill and W. W. Adamson, for Plaintiff.

The right of appeal is purely statutory, and the record on appeal must affirmatively show a strict compliance with the statute or the court has no jurisdiction to try the case or do anything except to dismiss the appeal on motion. Sec. 8321 is mandatory in requiring two things to be done, namely, the notice of appeal must be (1) filed; (2) served on the prosecuting attorney of the county. (People v. Lynch, 1 Idaho 358; Tootle v. French, 3 Idaho 1, 25 P. 1091; Adams v. McPherson, 3 Idaho 718, 34 P. 1095; People v. Swearinger, 4 Cal. Unrep. 964, 38 P. 972; People v. Bell, 70 Cal. 33, 11 P. 327; 2 Cyc. 1025, 1028.)

Lack of such record showing cannot be cured by affidavit filed in appellate court. (Adams v. McPherson, 3 Idaho 718, 34 P. 1095; Adams v. McPherson, 4 Idaho 5, 35 P. 690; Diamond Bank v. Van Meter, 18 Idaho 243, 21 Ann. Cas. 1273, 108 P. 1042.)

A justice of the peace can only grant a change to another justice, or to the probate court, within the county. (Sec. 4642, Rev. Codes.)

Jurisdiction of district judge on appeal is identical with that of justice of the peace. (24 Cyc. 641; Shealor v. Superior Court, 70 Cal. 564, 11 P. 653.)

Jurisdiction of district judges to grant change of venue to another county is limited to such criminal actions as may be prosecuted by indictment or information. (Sec. 7768, Rev. Codes.)

There is no constitutional right to trial by indictment in misdemeanor cases nor to change of venue. (Turner v. State, 114 Ga. 421, 40 S.E. 308; Green v. State, 119 Ga. 120, 45 S.E. 990; State ex rel. Cottrell v. Wofford, 119 Mo. 408, 24 S.W. 1009; State v. Headrick, 149 Mo. 396, 51 S.W. 99.)

Clark & Brodhead, for Defendant.

The fact of service, rather than the evidence thereof, gives the court jurisdiction to entertain the appeal, and such evidence may be shown in other modes than by being incorporated in the transcript. (Sutter County v. Tisdale, 128 Cal. 180, 60 P. 757; Heinlen v. Heilbron, 94 Cal. 636, 30 P. 8; Knowlton v. MacKenzie, 110 Cal. 183, 190, 42 P. 580; Williams v. Superior Court of Lassen County, 5 Cal. Unrep. 598, 47 P. 783.)

"Where a district court assumes jurisdiction by filing the complaint and issuing the warrant in misdemeanor cases, it is the duty of such court to proceed with the trial of the case and a writ of mandate will issue from this court requiring such district court to so proceed." (Fox v. Flynn, 27 Idaho 580, 150 P. 44.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

This is an original proceeding to obtain a writ of prohibition to restrain the Honorable Frederick J. Cowen, district judge of the sixth judicial district, from proceeding with the trial of the case of the State of Idaho v. W. H. Brashear, now pending in the district court for Bingham county. This court issued an alternative writ of prohibition and the defendants have demurred to the plaintiff's petition and have moved to quash the writ. The grounds alleged in the demurrer to the petition and in the motion to quash the writ are practically identical, and are to the effect that the petition does not state facts sufficient to entitle the plaintiff to the relief prayed for, or any relief, and that the facts stated therein are not sufficient to constitute a cause of action. There is no merit in the demurrer to the petition nor in the grounds assigned by the defendant in his motion to quash the writ; the demurrer will therefore be overruled and the motion to quash the writ denied.

The history of this case, briefly stated, is as follows: The defendant Brashear was charged with a misdemeanor in the justice's court of Challis Precinct, Custer county, where a trial was had which resulted in his conviction, whereupon judgment was entered against him, from which an appeal was taken to the district court.

When the cause came on for trial the state, being represented by the prosecuting attorney, made a motion to dismiss the appeal for the reason that no notice of appeal was ever served upon him, as required by law. This motion was denied, whereupon the defendant filed and served his application for a change of venue, in which he alleged that on account of the bias and prejudice existing against him in Custer county, he could not have a fair and impartial trial in that county, and in support of his application he filed the affidavits of two citizens, residents of said county. In opposition to his application the prosecuting attorney filed the affidavits of forty-two citizens, residents of said county, wherein they and each of them stated that there existed no bias or prejudice against the defendant in Custer county that would prevent him from having a fair and impartial trial. The court, however, granted the application and transferred the case to Bingham county for trial. By reason of the action of the court in granting the motion for a change of venue the state instituted this proceeding. An examination of the record discloses the fact that the undertaking and notice of appeal were duly filed with the justice of the peace of Challis Precinct, but the transcript of the proceedings had in that court and filed in the district court fails to affirmatively show the service of the notice of appeal upon the prosecuting attorney. Counsel for the defendant Brashear for the purpose of establishing the proof of service of the notice of appeal, filed an affidavit in which he states: "That he did,...