State v. Dunn, 11815
| Citation | 472 P.2d 288,155 Mont. 319 |
| Decision Date | 30 June 1970 |
| Docket Number | No. 11815,11815 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Daniel Francis DUNN, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
John Leslie Hamner, argued, Butte, for appellant.
Robert L. Woodahl, Atty. Gen., John C. Weingartner, Asst. Atty. Gen., argued, Helena, Mark P. Sullivan, County Atty., F. Lee Williams, Deputy County Atty., Butte, for respondent.
Defendant was convicted of a criminal sale of dangerous drugs by jury verdict in the district court of Silver Bow County before the Hon. James D. Freebourn, district judge. From that verdict and judgment, defendant appeals.
On Sunday afternoon September 14, 1969, defendant Daniel Francis Dunn, age 18, and his friend George Staschel, age 16, drove to the home of Kathy Best, age 15, which is located about a block west of the Hawthorne school in Butte. Kathy, who was painting a fence, went over to the car and proceeded to carry on a conversation with the two occupants. She asked if they had any 'acid' to which defendant replied they had. They then made plans to 'drop acid', it being understood that defendant would provide the pills.
Kathy went over to see her friend, Cynthia Roth, age 15, who lived nearby. Kathy asked Cynthia if she wanted to 'drop acid' and Cynthia indicated she did. As Cynthia was 'grounded' and could not leave home, Kathy alone went for a ride with defendant and Staschel in defendant's car. Defendant gave Kathy 1 1/2 pills. Kathy ate the half pill and put the remaining whole pill in her pocket. Defendant then drove Kathy back to Cynthia's house where Kathy got out. Defendant and Staschel had no further contact with the girls. Kathy gave Cynthia the whole pill which Cynthia consumed.
Thereafter both Kathy and Cynthia began to hallucinate. Kathy indicated 'everything was moving, and time speeded up.' Her pupils were dilated, she was disoriented, 'felt different', 'high', and talked constantly. Kathy had taken drugs on a previous occasion and had experienced the same reaction then. Cynthia's reaction was similar to Kathy's except that it was more pronounced.
Defendant was arrested the following day on the basis of a complaint filed in justice court in Butte charging him with a criminal sale of dangerous drugs. As this charge constituted a felony, a preliminary hearing was set for October 2, 1969.
On September 30, 1969, the county attorney filed a written motion in the district court asking leave to file an information against defendant therein without a preliminary hearing. This motion was supported by an affidavit signed by him, the purpose of which was to establish probable cause. The district court granted the motion over defendant's objection.
The information as filed in the district court charged defendant with a criminal sale of dangerous drugs in violation of section 54-132, R.C.M.1947. Defendant plead 'not guilty'. The case came on for trial on November 13, 1969, and four days later the jury returned a verdict of guilty. Thereafter judgment was entered on this verdict. Following the district court's denial of his motion for a new trial, defendant appealed from the verdict and judgment.
Defendant lists 17 issues for review upon this appeal. For purposes of this opinion, these issues will be grouped functionally into four categories: (1) issues relating to the contents and filing of the information; (2) issues relating to pretrial discovery; (3) issues relating to the admissibility and sufficiency of the evidence; and (4) issues relating to jury instructions.
Defendant levels his initial attack at the direct filing and sufficiency of the information. His contentions here are threefold: (1) that there was an insufficient showing of probable cause ot permit the filing of a direct information without a preliminary hearing, (2) that under the facts here, defendant had a vested right to a preliminary hearing, and (3) the information is deficient in several particulars required by law.
Defendant argues that under Montana's new Code of Criminal Procedure, a motion for leave to file an information direct must be supported by (a) the affidavit of a witness having direct knowledge of facts constituting probable cause, and (b) some supporting evidence for the affidavit.
The controlling statutory requirements are found in section 95-1301(a), R.C.M.1947:
.
The county attorney's affidavit supporting his motion for leave to file an information against defendant directly in the district court reads:
The plain language of the statute authorizes the county attorney to make the application and requires the application to be made by affidavit. This constitutes express authorization for the county attorney to make the supporting affidavit. The statute contains no requirement that it be made by an 'eyewitness' or 'some witness having competent knowledge of a state of facts leading to probable cause' as contended by defendant. 'In the construction of a statute * * * the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted * * *'. Section 93-401-15, R.C.M.1947.
Nor does the statute require any supporting evidence beyond that contained in the affidavit unless additional evidence is required by the district judge. If the evidence contained in the affidavit is sufficient to satisfy the district judge that proabable cause exists, nothing further is required. Here the county attorney's affidavit states facts supporting a finding of probable cause rather than mere legal conclusions. While it is not as precisely drawn as defendant would like, the affidavit indicates in substance that defendant had given Kathy Best a type of dangerous drug that caused her to hallucinate on a stated date, that three named witnesses confirmed this, and that the parents of Kathy Best and Cynthia Roth witnessed the girls hallucinating in their presence. On the basis of this showing, the district judge was satisfied that probable cause existed and permitted the direct filing of the information in district court. In this, we find no error.
Defendant additionally contends that under the facts of the instant case his right to a preliminary hearing had vested and accrued and could not be circumvented by a direct filing of the information. Defendant points out that prior to any application to the district judge for leave to file directly in district court, the justice of the peace had ordered a preliminary hearing and fixed a time and place therefor. As a result, according to defendant, he was deprived of the opportunity to ascertain in advance of trial the knowledge possessed by Dr. Best concerning identification of dangerous drugs and accordingly was unable to prepare his defense.
The purpose of the preliminary hearing is to determine whether there is probable cause to believe a felony has been committed by the defendant. Section 95-1201, R.C.M.1947. And, if the evidence so indicates, defendant must be held to answer an information in the district court. Section 95-1202, R.C.M.1947. A showing of the same probable cause by affidavit and such supporting evidence as the judge may require is necessary to authorize a direct filing in district court. Section 95-1301, R.C.M.1947 and Commission comment thereon. If, as here, such affidavit and supporting evidence indicates probable cause to the satisfaction of the district judge, leave may be granted to file the information directly in the district court. Section 95-1301, R.C.M.1947. Thus, defendant has no vested right to a preliminary hearing, either method procedure being permissible at the outset. The Commission comment to section 95-1202, which we quote with approval, succinctly disposes of defendant's contention in this language:
But defendant also contends that a preliminary hearing should have been held to enable him to discover the information and knowledge of Dr. Best and others in the Butte area relating to their qualifications in identification of dangerous drugs. This patently relates to expert testimony that might be given at the trial rather than a necessary subject of inquiry at a preliminary hearing. As probable cause was established to the satisfaction of the district judge by the evidence contained in the supporting affidavit, defendant has no right to a preliminary hearing in order to conduct a 'fishing expedition' for pretrial discovery of all the evidence of the prosecution that might be used at the trial.
The Commission comment to section 95-1202 expresses the intent thus:
...
To continue reading
Request your trial
-
State v. Watson, 88-421
...658 (Mo.App.1984); State v. Neal, 624 S.W.2d 182 (Mo.App.1981); State v. Starr, 204 Mont. 210, 664 P.2d 893 (1983); State v. Dunn, 155 Mont. 319, 472 P.2d 288 (1970); State v. Pipkin, 101 N.J.Super. 598, 245 A.2d 72 (1968), cert. denied 393 U.S. 1042, 89 S.Ct. 668, 21 L.Ed.2d 590 (1969); Pe......
-
People v. Boyd
...See Pennacchio v. United States, 263 F. 66 (CA2, 1920), Cert. den., 253 U.S. 497, 40 S.Ct. 588, 64 L.Ed. 1031 (1920); State v. Dunn, 155 Mont. 319, 472 P.2d 288 (1970); State v. Johnson, 54 Wis.2d 561, 196 N.W.2d 717 (1972). Contra, People v. Kenny, 30 N.Y.2d 154, 331 N.Y.S.2d 392, 282 N.E.......
-
State v. Burwell
...conclusion that a substance is a dangerous drug. State v. Henrich, 268 Mont. 258, 269, 886 P.2d 402, 409 (1994) (citing State v. Dunn, 155 Mont. 319, 472 P.2d 288 (1970)). ¶ 9 Very few of our cases addressing the identification of a substance as a dangerous drug, however, have involved a su......
-
State v. Higley
...right to either procedure. Gerstein v. Pugh (1975), 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 L.Ed.2d 54, 69; State v. Dunn (1970), 155 Mont. 319, 325, 472 P.2d 288, 292. Many states set forth precise time limits within which the State must hold the preliminary examination if the District Co......