State v. Johnston, 10335

• Decision Date: 16 January 1962
• Docket Number: No. 10335,10335
• Citation: 140 Mont. 111,367 P.2d 891
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Robert C. JOHNSTON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 891

367 P.2d 891

140 Mont. 111

The STATE of Montana, Plaintiff and Respondent, v. Robert C. JOHNSTON, Defendant and Appellant.

No. 10335.

Supreme Court of Montana.

Submitted Nov. 8, 1961.

Decided Jan. 16, 1962.

As Amended Jan. 19 and 25, 1962.

Richard J. Conklin (argued orally), White Sulphur Springs, for appellant.

John V. Potter, Jr., County Atty. (argued orally), White Sulphur Springs, Forrest H. Anderson, Atty. Gen., Donald Garrity, Asst. Atty. Gen. (argued orally), for respondent.

DOYLE, Justice.

The defendant, Robert C. Johnston, was convicted of the crime of uttering and delivering a fictitious check in Meagher County on or about October 9, 1959.

This cause was tried to a jury and on June 27, 1961, the jury returned a verdict of guilty and left the punishment to be fixed by the court. The defendant was thereafter sentenced tof five years in the Montana State Prison at Deer Lodge. Defense counsel moved for a new trial which was denied, and on June 30, 1961, judgment was pronounced upon the defendant. From this judgment of conviction the defendant appeals.

From the record in this cause, we adduce that the appellant Johnston and one LeRoy Franklin Wenig on October 9, 1959, were present at the cashing of two checks at the Mint Bar in White Sulphur Springs. The first check was in the sum of $140 drawn on the First National Bank of White Sulphur Springs with the payee as LeRoy Wenig and the maker as one James J. Johnson. The second check was payable to the appellant in the sum of $40, and the maker was Raymond Hannes, and this check was also drawn on the First National Bank and cashed at the Mint Bar in White Sulphur Springs.

On December 15, 1959, LeRoy Franklin Wenig plead guilty to uttering and delivering the fictitious check in the sum f $140 before referred to.

The appellant here, who cashed the $40 check on Friday, October 9, 1959, testified that the nebulous Raymond Hannes had advanced him this $40 for work and labor that he was to perform on Monday, October 12, 1959, and yet we find the appellant arrested in Dillon on Tuesday, October 13, 1959. The records of the First National Bank at White Sulphur Springs fail to disclose that there ever was a Raymond Hannes who was carried as a depositor in that Bank. The sheriff of Meagher County likewise testified that he had never known or heard of any such person as Raymond Hannes. It perhaps is pertinent to observe that the record discloses that the appellant admitted a felony conviction although the prior conviction was not charged in the information in this cause.

The appellant specifies twenty-one separate specifications of error. We will discuss those specifications possessing merit.

Appellant's first four specifications of error deal with the elapsed time of twenty-one days between his arrest and arraignment.

It was clearly brought out, without difference of opinion, that counsel for appellant had represented him from the middle of October 1959, when he was arrested together with LeRoy Franklin Wenig and both were charged with the identical crime on the $140 check. LeRoy Franklin Wenig plead guilty in the month of December to uttering and delivering the fictitious $140 check, with intent to defraud the recipient of the check, and the joint information was dismissed as to defendant.

The Honorable F. V. Watts had resigned as district judge of this district and informed both counsel for appellant and respondent that he would not again be in White Sulphur Springs after December 15, 1959. The county attorney could have continued the original information on the $140 check against the appellant herein until the new district judge appeared and then dismissed as against this appellant after filing the information on the $40 check presently before this court.

The Montana statutes provides that a defendant must be taken before a magistrate 'without unnecessary delay'. R.C.M.1947, Sec. 94-5912; R.C.M.1947, Sec. 94-6016. The defendant urges that his detention for a period of twenty-one days without being taken before a magistrate was a violation of the above statutes and hence his conviction should be reversed.

The authorities cited by defendant in support of his argument are distinguishable from the case at bar. All of the cases cited deal with the question of a coerced confession. These cases require a reversal of the conviction because the illegal confession has a bearing on the conviction on the merits of the charge. In this case there was no confession. Moreover, we find that the detention of defendant did not prejudice him in presenting his defense on the merits at the trial. If the defendant has a remedy at all it must be found in a civil action. See Cline v. Tait, 113 Mont. 475, 129 P.2d 89.

The rule is stated in 15 Am.Jur., Criminal Law, Sec. 317, as follows:

'As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant.'

The specifications of error numbered 5, 6, and 11, deal with the failure of the county attorney to endorse the name of Robert W. Johnson, President of the First National Bank of White Sulphur Springs on the information. This failure...