State v. Duncan, 9655
| Decision Date | 05 January 1957 |
| Docket Number | No. 9655,9655 |
| Parties | STATE of Montana, Plaintiff and Appellant, v. Raymond L. DUNCAN, Defendant and Respondent. |
| Court | Montana Supreme Court |
Arnold H. Olsen, Atty. Gen., Louis Forsell, Asst. Atty. Gen., and John C. Harrison, County Atty., for appellant.
Paul T. Keller and Melvin E. Magnuson, Helena, for respondent.
On October 25, 1954, there were present in the district court of Lewis and Clark County, Montana, before the Honorable George W. Padbury, Jr., district judge presiding, the State of Montana by Gerald L. Crowley, then the county attorney of said county, and the accused, Raymond L. Duncan, who was present in person and also by his counsel Melvin E. Magnuson. The following proceedings were then and there had and done, viz.:
The county attorney subscribed and presented to said district court a duly verified information against Raymond L. Duncan, the accused, for manslaughter, charging that on or about October 7, 1954, in said county, the accused unlawfully and feloniously killed a named five-year old boy and, on leave granted by said district judge, the information was filed in said court and a copy thereof was then and there served upon and delivered to Raymond L. Duncan, the accused, who in open court answered to his true name, waived the reading of the information, waived the time for entering his plea, entered a plea of 'Not Guilty' to the accusation made against him in the information and was released upon a bail bond of $1,000 approved by said district judge, whereupon, the cause being at issue. R.C.M.1947, Sec. 94-7001, subd. 1, was ordered to be set for trial at the next jury term of said court.
No question was then raised as to the sufficiency of the information to properly inform the accused of the offense charged in order to enable him to prepare his defense; nor does it appear that at that time either the accused or his able and experienced counsel had any difficulty whatever in understanding and knowing that the accused was charged with having committed the crime of manslaughter in that, at the time and place specified, he did unlawfully and feloniously kill the named five-year old boy.
As a former county attorney of Lewis and Clark County counsel for the accused was thoroughly familiar with the laws of this jurisdiction governing crimes and criminal procedure and he well knew that the only pleading on the part of the accused is either a demurrer or a plea, both of which must be put in, in open court, either at the time of the arraignment or at such other times as may be allowed to the accused for that purpose. R.C.M.1947, Secs. 94-6701 and 94-6702.
More than four months passed after the arraignment and entry of the plea with no attempt to challenge the sufficiency of the information and then, on March 8, 1955, the district court granted the accused leave to withdraw his plea of 'Not Guilty' so entered on October 25, 1954, and to submit a demurrer thus for the first time challenging the sufficiency of the information. See R.C.M.1947, Secs. 94-6701 to 94-6711, inclusive.
The demurrer was made and based on the grounds: (1) That the information fails to state facts that constitute a public offense; (2) that it fails to substantially conform to the requirements of R.C.M.1947, Secs. 94-6403 to 94-6405, inclusive; (3) that it fails to contain a statement of the facts constituting the offense, in ordinary and concise language and in such manner as to enable the accused, being a person of common understanding, to know what is intended; (4) that it is not direct and certain as regards the offense charged in that it cannot be ascertained therefrom the means or manner in which it is alleged that the accused killed the boy, Duane Leslie Egge; (5) that it is not direct and certain as regards the offense in that it can not be ascertained from the information what act or acts or Duncan, the accused, form the basis for complaint; and (6) that it is not direct and certain as regards the offense charged in that it cannot be ascertained therefrom what particular acts Duncan, the accused, is charged with commiting or what particular acts he is charged with failing to perform in the commission of the offense of which he is accused.
On November 9, 1955, being more than a year after the filing of the information, the demurrer thereto was orally argued to the district court by both counsel for the state and counsel for the accused at the conclusion whereof Judge Padbury gave and caused to be entered judgment for Raymond L. Duncan, the accused, wherein it was adjudged that the demurrer to the information be sustained; that the case be dismissed and that the bondsmen for the accused be exonerated.
This is an appeal by the state from the judgment so entered. The appeal is taken pursuant to the provisions of R.C.M.1947, Sec. 94-8104, subd. 1.
The state here contends that the information herein is sufficient and that the trial court erred in sustaining the demurrer thereto and in rendering the above judgment for the accused.
The information, omitting the endorsements thereon showing the filing date, the amount of the bail, the names of the state's fourteen witnesses and the verification, is as follows 'State of Montana, against
'Raymond L. Duncan, Defendant.
'In the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark, on this 25th day of October A.D. 1954 in the name and on behalf and by authority of the State of Montana, Raymond L. Duncan is accused by the County Attorney of Lewis and Clark County, Montana, by this information of the crime of Manslaughter committed as follows: That at the County of Lewis and Clark, in the State of Montana, on or about the 7th day of October A.D. 1954, and before the filing of this information, the said Raymond L. Duncan did then and there wilfully, wrongfully, unlawfully, knowingly and feloniously kill one Duane Leslie Egge, and human being of the age of five years, contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Montana.
'Duly verified.
Gerald L. Crowley, County
Attorney of Lewis and Clark
County, Montana.'
The sufficiency of every information is to be tested by the rules prescribed by the Penal Code. State v. Stickney, 29 Mont. 523 at p. 528, 75 P. 201; R.C.M.1947, Secs. 94-6401, 94-6403, 94-6404, 94-6405 and 94-6412.
The information in the instant case is in the form recommended and prescribed by the legislature in R.C.M.1947, Sec. 94-6404. It complies with all the requirements of R.C.M.1947, Secs. 94-6403, and 94-6405 and it meets and satisfies each test provided in R.C.M.1947, Sec. 94-6412, for determining its sufficiency.
Specifically the information follows in form and substance the information approved and held sufficient by this court in State v. Gondeiro, 1928, 82 Mont. 530, 535, 268 P. 507, 511, which information charged that the defendant 'on or about the 14th day of August, A.D. 1927, at the County of Cascade, in the State of Montana, and before the filing of this Information did commit the crime of manslaughter in this: That the said defendant did wilfully, unlawfully and knowingly and feloniously kill one Mary Bykari, a human being, contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the State of Montana.'
For more than a quarter of a century the bench and bar of this state have relied upon the stamp of approval given by this court to the information used in the Gondeiro case, supra, where this court said that it saw no reason why the rule theretofore adopted by the California courts...
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