State v. Hinckley

• Decision Date: 22 November 1895
• Parties: STATE v. HINCKLEY
• Court: Idaho Supreme Court

42 P. 510

4 Idaho 490

STATE v. HINCKLEY

Supreme Court of Idaho

November 22, 1895

PLEADING-DEMURRER TO INFORMATION-MOTION IN ARREST OF JUDGMENT.-The objection that the information in a criminal case does not state facts sufficient to constitute a public offense, must be first made in the trial court, either by demurrer to the information or at the trial under a plea of not guilty, or after the trial by motion in arrest of judgment.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Affirmed.

G. G Pickett and R. T. Morgan, for Appellant.

A party in a criminal case does not waive his rights by not insisting upon them. If the information or indictment does not state facts sufficient to constitute a public offense, the court had no jurisdiction. (People v. Du Rell, 1 Idaho 44.)

George M. Parsons, Attorney General, for the State.

Section 7742 of the Penal Code specifies the grounds upon which a defendant may demur to an indictment. Subdivision 4 of that section reads: "That the facts stated do not constitute a public offense." Section 7750 provides: "When the objections declared grounds of demurrer by this chapter appear upon the face of the indictment, they can only be taken by demurrer, except that the objections to the jurisdiction of the court over the subject of the indictment or that the facts stated do not constitute a public offense may be taken at the trial under a plea of not guilty, or after the trial in arrest of judgment." We maintain that the defendant, having withdrawn the demurrer, and having failed to move in arrest of judgment upon the grounds upon which he now relies, to wit: "That the facts stated do not constitute a public offense," has waived his rights under the law, and cannot, for the first time, raise the objection in this court. (Territory v. Carland, 6 Mont. 14-18, 9 P. 578; State v. Malish, 15 Mont. 506, 39 P. 739; People v. D'Argencouer, 95 N.Y. 624-630; People v. Gatewood, 20 Cal. 146-149; State v. Crane, 71 Mo. 551; State v. Groom, 10 Iowa 308-312; State v. Cuddy, 40 Iowa 419-20; Commonwealth v. Hinds, 101 Mass. 109, 210.)

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

OPINION

HUSTON, J.

Defendant was charged, by information filed in the district court for Latah county, with the crime of forgery. To the information he interposed a demurrer, setting up several grounds, among others, "that the said information does not state facts sufficient to constitute an offense against this defendant, or at all." Subsequently the defendant withdrew his said demurrer, and entered his plea of guilty to the information. Thereafter, on September 6, 1895, judgment and sentence were pronounced against the defendant, from which judgment and sentence this appeal is taken.

It is contended by counsel for the appellant that, notwithstanding the withdrawal of his demurrer, and the entry of his plea of guilty, the defendant waived none of his rights, and that he is still entitled to raise in this court, upon appeal, for the first time, the question that the information filed against him did not state facts sufficient to constitute an offense. Counsel cite with a degree of confidence the case of People v. Du Rell, 1 Idaho 44, in support of this contention. In that case Du Rell, had been convicted before a probate judge, and sentenced to pay a fine for carrying on the business of a trader or merchant, without having first procured a license therefor, as required by statute. From the judgment of conviction by the probate court, Du Rell appealed to the district court, where, upon trial, the judgment of the probate court was affirmed. An appeal was taken to the supreme court of the territory. The supreme court held that, under the statutes of Idaho territory, the probate courts had no criminal jurisdiction whatever; that the district court could only acquire jurisdiction of that class of cases by indictment; that an appeal from the probate court, which had no jurisdiction, could not give the district court jurisdiction of the subject matter. Hardly a parallel case with the one under consideration. There is no question of jurisdiction here. The only question raised by this record is, Did the information state facts sufficient to constitute a public offense? If it did not, can that question be raised in this court upon appeal, on the facts shown by the record? Section 7742 of the Penal Code specifies the grounds upon which a defendant may demur to an indictment. Subdivision 4 of that section reads: "That the facts stated do not constitute a public offense." This is not exactly the language used in defendant's demurrer, but it was no doubt intended to cover the provision of the statute, and we shall so treat it. Section 7750 provides: "When the objections declared grounds of demurrer by this chapter appear upon the face of the indictment, they...