State v. Jim

• Decision Date: 14 January 1890
• Citation: 9 Mont. 167
• Parties: STATE v. AH JIM.
• Court: Montana Supreme Court

9 Mont. 167

STATE

v.AH JIM.

Supreme Court of Montana.

Jan. 14, 1890.

Appeal from district court, Lewis and Clarke county.

Henri J. Haskell, Atty. Gen., and C. B. Nolan, Co. Atty., for the State.

C. C. Newman and A. J. Craven, for respondent.

BLAKE, C. J.

This is an appeal from the order of the court below sustaining the motion of the respondent to quash the information which was filed December 3, 1889, by the county attorney of the county of Lewis and Clarke. The respondent is charged with the commission of the offense of murder in the first degree upon the 25th day of August, 1889. After the arraignment of the accused a motion was made by his counsel, and sustained by the court, to quash the information, “because the county attorney in and for Lewis and Clarke county, Montana, had no authority to make or file the said information in the said action.”

It is admitted that the state of Montana was legally organized on the 8th day of November, 1889, and that the crime which is described in the information was committed within the territory of Montana. The questions which have been discussed on this hearing relate to this interpretation of the following clause of the eighth section of the third article of the constitution: “All criminal actions in the district court, except those on appeal, shall be prosecuted by information after examination and commitment by a magistrate, or after leave granted by the court, or shall be prosecuted by indictment without such examination or commitment, or without such leave of the court. A grand jury shall consist of seven persons, of whom five must concur to find an indictment. A grand jury shall only be drawn and summoned when the district judge shall, in his discretion, consider it necessary, and shall so order.”

In the states which are governed by constitutions containing similar provisions regarding the procedure by information, statutes have been enacted to enable the courts to secure their enforcement. The legislative assembly of Montana have not passed any law of this nature, although it is contended that the same result has been attained by the adoption of the common law of England, when the same “is applicable and of a general nature, and not in conflict with special enactments.” Comp. St. div. 5, § 201. This position is unsound, for two reasons. The criminal practice act provides ample remedies for the execution of criminal laws, and necessarily conflicts with the proceedings by information at common law. In the next place, the use of this remedy has been limited to certain cases, and has not embraced felonies. Blackstone treats of this subject, and says: “There can be no doubt but that this mode of prosecution by information or suggestion, filed on record by the king's attorney general, or by his coroner or master of the crown office in the court of king's bench, is as ancient as the common law itself. *** But these informations, of every kind, are confined by the constitutional law to mere misdemeanors only; for, wherever any capital offense is charged, the same law requires that the accusation be warranted by the oath of twelve men before the party shall be put to answer it.” 4 Bl. Comm. 309, 310. In Ex parte Wilson, 114 U. S. 423, 5 Sup. Ct. Rep. 938, Mr. Justice GRAY delivers the opinion, and says: “By the law of England, informations by the attorney general, without the intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was understood any offense which at common law occasioned a total forfeiture of the offender's lands or goods, or both.”

There are some provisions of the constitution which have a direct bearing upon the case at bar, and should be considered. “No person shall be deprived of life, liberty, or property without due process of law.” Article 3, § 27. “All criminal laws enacted by the legislative assembly of the territory of Montana, and in force at the time the state shall be admitted into the Union, and not inconsistent with this constitution, or the constitution or laws of the United States of America, shall be and remain in full force as the laws of the state until altered or repealed, or until they expire by their own limitation.” Article 20, schedule, § 1. “No crime or criminal offense committed against the laws of the territory of Montana shall abate, or in any wise be affected, by reason of the change from a territorial to a state form of government; but the same shall be deemed and taken to be an offense against the laws of the state, and the appropriate courts of the state shall have jurisdiction over, and to hear and determine, the same.” Id. § 3. “Prosecutions for criminal offenses against the laws of the territory of Montana, pending at the time the state shall be admitted into the Union, shall not abate; but the same shall continue and be prosecuted in the name of the state of Montana, and the title of every such action shall be changed to conform to this provision.” Id. § 7. “Parties who at the time of the admission of the state into the Union may be confined under lawful commitments, or otherwise lawfully held to answer for alleged violations of any of the criminal laws of the ...