State v. Hosford

• Citation: 147 P. 286,27 Idaho 185
• Parties: STATE, Respondent, v. EMMETT HOSFORD, EARL K. DODGE, WILLIAM PECK, JOSEPH MCGOWAN and JOHN HODSON, Appellants
• Decision Date: 24 March 1915
• Court: United States State Supreme Court of Idaho

147 P. 286

27 Idaho 185

STATE, Respondent, v. EMMETT HOSFORD, EARL K. DODGE, WILLIAM PECK, JOSEPH MCGOWAN and JOHN HODSON, Appellants

Supreme Court of Idaho

March 24, 1915

APPEAL from the District Court of the Sixth Judicial District for Custer County. Hon. James M. Stevens, Judge.

Defendants found guilty of violating village anti-gambling ordinance in police magistrate's court. Appeal taken to district court and writ of review subsequently issued. From judgment of district court dismissing writ of review, defendants appeal. Affirmed.

Affirmed.

L. E Glennon and M. A. Brown, for Appellants.

There is no appeal provided from a justice court on questions of law; therefore, there is no appeal in this case. If we should appeal this case to the district court, the matter must be tried anew in such court. The questions involved would not be reviewed on an appeal, so that the appeal provided by the statute is inadequate, and, in fact, is no appeal at all on questions involved. The defendants were entitled to have these questions reviewed on an application for writ of review. (Sec. 8325, Rev. Codes; Highway Commrs. v Harper, 38 Ill. 107; Memphis & C. R. Co. v Brannum, 96 Ala. 461, 11 So. 468; Abney v. Clark, 87 Iowa 727, 55 N.W. 6; Coburn v. Mahaska Co., 4 Iowa 242; State v. Evans, 13 Mont. 239, 33 P. 1010; Paul v. Armstrong, 1 Nev. 82; Wiggins v. Henderson, 22 Nev. 103, 36 P. 459; People v. Stedman, 57 Hun, 280, 10 N.Y.S. 787; Union Steamboat Co. v. Buffalo, 82 N.Y. 351.)

The court erred and exceeded its jurisdiction in refusing to grant a change of venue. (Bell v. Bell, 18 Idaho 636, 111 P. 1074; Day v. Day, 12 Idaho 556, 86 P. 531, 10 Ann. Cas. 260.)

The constitution of this state provides that trial by jury shall remain inviolate (art. 1, sec. 7), and the legislature has further provided that criminal cases in a justice court shall be tried before a jury, unless a jury be waived; and that in a police court a jury trial must be granted when demanded. (Ex parte Wong You Ting, 106 Cal. 296, 39 P. 627; Ex parte Becknell, 119 Cal. 496, 51 P. 692; In re Fife, 110 Cal. 8, 42 P. 299; Ex parte Miller, 82 Cal. 454, 22 P. 1113; Powelson v. Lockwood, 82 Cal. 613, 23 P. 143; Taylor v. Reynolds, 92 Cal. 573, 28 P. 688.)

Both of these rights are involved in this case, and the question can only be determined in the manner attempted by the defendants. In this case both questions go to the jurisdiction of the court, and therefore are proper matters to be reviewed by certiorari upon the showing made. The fact that defendants gave notice of appeal at the close of their pretended trial in the police court and failed to prosecute it is no ground of objection to granting of certiorari or writ of review. (Poag v. Rowe, 16 Tex. 590.)

The granting of a writ of review is discretionary, and even when there is an appeal, its allowance is not prohibited. (People v. Donohue, 15 Hun (N. Y.), 418.)

J. H. Peterson, Atty. Genl., A. J. Higgins, County Atty., and W. W. Adamson, for Respondent.

Two things must be shown to exist before writ of review will be issued: First, that the tribunal has exceeded its jurisdiction, and, second, that there is no appeal. (Canadian Bank of Commerce v. Wood, 13 Idaho 794, 93 P. 257; Gunderson v. District Court, 14 Idaho 478, 94 P. 166.)

No writ lies from an order denying a change of venue. (State v. Goode, 4 Idaho 730, 44 P. 640.)

California held the same way, before their laws relating to appeals from justice courts were changed, and while their statute was the same as ours. (Lowrey v. Hogue, 85 Cal. 600, 24 P. 995; Ex parte Wright, 119 Cal. 401, 51 P. 639.)

The defendants having given notice of appeal from the decision and judgment of conviction and filed their stay bond on appeal to the district court before they made application for the writ of review, were therefore estopped from seeking further remedy by writ of review.

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

OPINION

BUDGE, J.

This is a criminal action originally instituted before Joseph H. Horton, justice of the peace, sitting as police magistrate for the village of Challis. The defendants were charged with violation of the anti-gambling ordinance of said village. The cause came on regularly for hearing before said justice of the peace acting as police magistrate, December 12, 1913. The defendants appeared in person and by counsel. A demurrer to the complaint was interposed, and after argument, was by the court overruled. Defendants then moved for a change of venue, which motion was denied. Whereupon the defendants demanded a jury trial, which was by the court refused.

The court thereafter proceeded with the trial of said cause. Testimony on behalf of the state was introduced, after which counsel for the defendants interposed a motion to discharge the defendants upon the ground that the evidence was insufficient to sustain a conviction, which motion was overruled. The defendants refused to introduce any testimony. After argument by counsel for respective parties, the court found the defendants guilty of the offense as charged in the complaint, and imposed a fine upon each of them in the sum of $ 25, and costs.

Immediately upon passing sentence, the attorney for the defendants gave notice of appeal from said judgment of conviction to the district court of the sixth judicial district for Custer county, Idaho. Said notice of appeal is dated December 12, 1913. On the same date a bond on appeal was given and approved.

On December 19, 1913, upon application of the defendants, a writ of review was issued by Hon. James M. Stevens, judge of the district court of the sixth judicial district of the state of Idaho. On January 20, 1914, a motion was duly made by W. W. Adamson, Esq., attorney for said city, to dismiss said writ upon the following grounds, to wit:

"1. That defendants have a plain, speedy and adequate remedy at law by appeal.

"2. That the court had jurisdiction of the subject matter of the suit and parties, and therefore jurisdiction to make and enter the orders sought to be reviewed.

"3. That the defendants having given notice of appeal from the decision and judgment of conviction entered in the police court and thereafter having filed a bond on appeal, that they are therefore estopped from seeking a further remedy by writ of review."

On January 28, 1914, said motion...