State v. Crank

• Decision Date: 23 October 1943
• Docket Number: 6567
• Citation: 142 P.2d 178,105 Utah 332
• Court: Utah Supreme Court
• Parties: STATE v. CRANK et al

142 P.2d 178

105 Utah 332

STATE v. CRANK et al

No. 6567

Supreme Court of Utah

October 23, 1943

Appeal from District Court, Seventh District, San Juan County; F. W Keller, Judge.

Jack Crank and John Chief were convicted of murder in the second degree, and they appeal.

Reversed and remanded.

Knox Patterson and O. A. Tangren, both of Salt Lake City, for appellants.

Grover A. Giles, Atty. Gen., and S.D. Huffaker, Asst. Atty. Gen for respondent.

LARSON Justice. MOFFAT, J., concurs in the result. WADE, Justice, WOLFE, C. J., and McDONOUGH, J., concurring.

OPINION

LARSON, Justice.

Defendants, convicted in the District Court of San Juan County, of the crime of murder in the second degree, appeal, and for reversal of the verdict and judgment, present the following propositions:

1. That the information did not state or charge a public offense.

2. That the court erred in denying defendants' motion to quash the information, made upon the ground they had no proper preliminary hearing because the magistrate did not advise defendants of their right to counsel; that the magistrate did not provide counsel for defendants when they were unable to obtain counsel themselves; and that hearsay testimony was received at the preliminary hearing.

3. That there is no proper proof of the corpus delicti; and the corpus delicti was not proved before the alleged confessions were received in evidence.

4. That the alleged confessions of defendants were improperly received in evidence.

5. That the court erred:

(a) In commenting on the evidence.

(b) In instructing the jury.

(c) In refusing to grant a new trial for misconduct of a juror.

We consider them seriatim. The facts will be stated as they become pertinent to the questions involved.

Defendants are Navajo Indians whose knowledge and use of the English language is very limited, if not nil. They live near the Utah-Arizona border roaming into both states at pleasure. In 1941, the Federal Grazing Service was having disputes with some of the Navajos over grazing rights under the Taylor Grazing Act, 43 U.S.C. A. § 315 [105 Utah 336] et seq. On July 20, 1941, defendant Crank was arrested, presumably for violation of the Taylor Act, and taken to a jail in Arizona. He was, thereafter, moved from jail to jail in Arizona, until January, 1942, when he was brought to Salt Lake City. He was later taken to Monticello, San Juan County, where he was held in the county jail until May, 1942, when he was put on trial on the charge involved in this case. The other defendant, Chief, was arrested September 27, 1941, also for his conduct in respect to violation of the Grazing Act. He likewise was transferred from one Arizona jail to another, but not in company with Crank, until January, 1942, when both were brought to Salt Lake City, and thereafter were kept in the same jail. While they were held in the Arizona jails they purportedly confessed the murder of a white man some ten or twelve years previous, in San Juan County. It appears there were three purported confessions by each, varying from each other in various particulars and being quite different from the testimony given by the defendants in court at the trial. On January 21, 1942, a complaint was filed before a justice of the peace in San Juan County, charging the defendants with murder in the first degree. After preliminary hearing, they were informed against in the District Court and in May, 1942 trial was had and verdict of guilty of murder in the second degree rendered. They appeal.

1. The complaint and the information founded thereon charged defendants with murder in the first degree in the following words:

"That the said defendants, Jack Crank and John Chief, at the time and place aforesaid [San Juan County, Utah] did willfully, premeditatedly, deliberately and with malice aforethought, murder a human being, designated by the name of John Doe, his true name being to the accuser unknown."

It is argued that the information is insufficient in that it neither names the individual allegedly murdered, nor does it describe him with sufficient detail to avoid the possibility of defendants being twice put in jeopardy for the same offense. The statute, Sec. 105-21- 8, U.S.C. 1943, reads:

"(1) The information or indictment may charge, and is valid and sufficient if it charges the offense for which the defendant is being prosecuted in one or more of the following ways: * * *.

"(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged * * *."

Sec. 105-21-9 then provides for a bill of particulars when necessary to give the defendant information to enable him to better defend the case. Sec. 105-21-47 gives short forms for charging certain offenses, stating for murder merely "A. B. murdered C. D."

An information in the short form provided by statute has been repeatedly held sufficient by this court. State v. Spencer, 101 Utah 274, 117 P.2d 455; State v. Hill, 100 Utah 456, 116 P.2d 392; State v. Anderson, 100 Utah 468, 116 P.2d 398. But it is contended that even the short form of the statute sets forth the name of the person murdered, and such name is thereby made a requirement. This is untenable. If the name of the victim is known it should be alleged. If unknown, it should be alleged that the victim was a human being, or words of equal import, whose name was to the accuser unknown. Such allegation has uniformly been held sufficient even under the long form indictment or information. Trumble v. Territory of Wyoming, 3 Wyo. 280, 21 P. 1081, 6 L.R.A. 384; State v. Sartino, 216 Mo. 408, 115 S.W. 1015; Reed v. State, 16 Ark. 499; 30 C. J. 94, 26 Am. Juris. 329; People v. Gormach, 302 Ill. 332, 134 N.E. 756, 29 A. L. R. 1120; Bishop, New Crim. Proc. 412. There must, however, be some facts then supplied to identify the victim, to enable the defendant to prepare his defense, and to identify the crime, for the protection of defendant, in case defendant is acquitted, or placed in jeopardy and again charged with the same offense. Under the short form pleading, however, these facts need not be alleged in the information. They are to be supplied by the Bill of Particulars, if defendant desires to have them. State v. Solomon, 93 Utah 70, 71 P.2d 104.

Here a Bill of Particulars was supplied. Defendants evidently deemed it sufficient as they did not request a further bill. Furthermore, the information, including the Bill of Particulars, need not be so specific in detail as to itself establish the identity of the offense with that of another charge, when a defense of autriefois acquit or once in jeopardy is interposed. We discussed this point at some length in State v. McIntyre, 92 Utah 177, 66 P.2d 879, and there pointed out that while the identity of the two offenses may be established by the pleadings, it may also be established by evidence, when the pleadings do not satisfactorily show the identity. This point is resolved against appellants.

2. Appellants' second point is that the court erred in not quashing the information on the ground that they had not waived, and had not been given, a proper preliminary hearing. A preliminary hearing unless waived by the defendant, with the consent of the state, is a prerequisite to a valid information. Art. 1 Sec. 13, Constitution of Utah. Any objections based upon the want of, or irregularities in, a preliminary hearing must be taken before pleading to the information. Sec. 105-16-2, U. C. A. 1943. Appellants were not represented by counsel at the preliminary hearing, and insist that before they could be given a legal preliminary hearing, it was incumbent upon the magistrate to advise them of their rights to counsel; and to appoint counsel for them, if they could not provide counsel for themselves. They also argue that hearsay evidence was received at the preliminary, and acted upon by the magistrate, which vitiated that proceeding. This matter is but very slight mentioned in the briefs, but was emphasized in oral argument. The statute, Sec. 105-15-1, U. C. A., provides that when a defendant, upon arrest, is brought before a magistrate, charged with commission of a public offense, the magistrate "must immediately inform him of the charge against him and of his right to the aid of counsel in every stage of the proceedings." Defendants were first arraigned before the magistrate January 27, 1942, and the record of that date shows that they were without an attorney; it discloses that "they were advised of their legal rights." From the justice's docket it does not appear that there was an interpreter present at that time, or that anything then said was intelligible to, or was interpreted to defendants, neither of whom understood the English language. However, the cause was set for preliminary hearing on March 2, 1942, and defendants remanded to custody. On such date, the following proceedings were had as shown by a reporter's transcript: The District Attorney represented the state; defendants present without counsel. Two men, Charles Ashcroft, a white man, and witness against defendants, and Dan Phillips, a Navajo, were sworn as interpreters. The District Attorney then stated that he wanted the record to show that on the 27th day of January, defendants were advised through an interpreter that they were entitled to counsel, and that the court would give them time to get counsel if they desired, but that the court had no authority to appoint counsel for them. When defendants were asked if they were ready to proceed with the hearing, Mr. Ashcroft, one of the interpreters, and a witness said:...