State v. McDermott

Decision Date17 December 1932
Docket Number5923
Citation17 P.2d 343,52 Idaho 602
PartiesSTATE, Respondent, v. C. G. MCDERMOTT, Appellant
CourtIdaho Supreme Court

CRIMINAL LAW-FORGERY-INDICTMENT AND INFORMATION-COMMITMENT-EVIDENCE-PROBATE JUDGE-ABANDONMENT OF OFFICE.

1. Probate judge is a "county officer," who may absent himself from state for twenty days without leave, but leave of absence for longer period by county commissioners was void (Code 1932, secs. 30-745, 30-1513).

2. Mere temporary absence of probate judge from state for more than twenty days without intention to change residence or abandon office did not create vacancy in such office (Code 1932 secs. 30-745, 30-1513, 57-901).

3. Where statute expressly requires officer to reside within county he represents, he may abandon office by permanently removing from such county and thereby create vacancy (Code 1932, sec. 30-1512).

4. If office is abandoned by officer's removal to another county, officer's return and reoccupation of office cannot affect abandonment.

5. Neglect or official misconduct justifying forfeiture of office does not produce vacancy of office which must be judicially determined.

6. Temporary absence of probate judge from state for more than twenty days without intention of abandoning office and without judicial forfeiture did not create vacancy so as to invalidate preliminary hearing held by him after return (Code 1932, secs. 30-745, 30-1513, 57-901; Const., art. 1, sec. 8).

7. Information must charge only offense for which defendant was committed.

8. Description of offense in commitment by generic name states by reasonable inference all facts requisite to such offense.

9. Irrespective of offense charged in complaint before committing magistrate, commitment may hold defendant to answer any offense disclosed by preliminary examination.

10. Where preliminary complaint charged making of forged check and depositions established uttering of false check and probability that defendant did it, commitment holding defendant for forgery was sufficient (Code 1932, sec 17-3701).

11. Information charging forgery by making a forged check and by uttering it charged but a single offense of forgery committed in two ways, each of which constitutes crime (Code 1932 secs. 17-3701, 19-1313).

12. Where information charges forgery by making a forged check it is unnecessary to charge that defendant forged name of person whose signature purports to be signed to such check (Code 1932, sec. 17-3701).

13. Evidence that defendant indorsed name of payee appearing in forged check just before he cashed it was admissible (Code 1932, sec. 17-3701).

14. Statements and specimens of defendant's writing given sheriff while in custody were admissible without proof that defendant was warned or asking of impeaching questions (Code 1932, sec. 17-3701).

15. Refusal to give advisory instruction to acquit is not reviewable on appeal.

16. Where information charged uttering of forged check to defraud named company, instruction in language of statute relating to intent that to convict jury must find that check was passed with intent to defraud "some person" held not error (Code 1932, secs. 17-102, 17-3701, 19-1315).

17. General verdict, finding defendant guilty of forgery as charged in information is not insufficient as failing to show particular acts constituting crime of which defendant was found guilty (Code 1932, sec. 17-3701).

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Prosecution for the crime of forgery. Defendant appeals from judgment of conviction. Affirmed.

Judgment affirmed. Petition for rehearing denied.

B. H. Miller, for Appellant, cites no authorities on this point.

Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Respondent.

Where a court has jurisdiction of an offense, and of the accused, and the proceedings are otherwise regular, a conviction is lawful although the judge holding the court may be only an officer de facto. (Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765; In re Allen, 31 Idaho 295, 170 P. 921.)

The description of the offense in the commitment by its generic name is sufficient. (State v. Gardner, 21 Ariz. 602, 193 P. 22; People v. Bianchino, 5 Cal.App. 633, 91 P. 112.)

Where a statute mentions several acts disjunctively and prescribes that each shall constitute the same offense and be subjected to the same punishment, an indictment may charge any or all of such acts conjunctively as constituting a single offense. (State v. Brown, 36 Idaho 272, 211 P. 60; State v. Farnsworth, 51 Idaho 768, 10 P.2d 295; State v. Montgomery, 48 Idaho 760, 285 P. 467.)

Where a single offense is charged, though charged by different manner and means, a general verdict of guilty as charged in the information is sufficient, and it is not necessary that the specific acts involved be named. (State v. Schweitzer, 18 Idaho 609, 111 P. 130; State v. Hagan, 47 Idaho 315, 274 P. 628; 16 C. J. 1109, note 52.)

VARIAN, J. Lee, C. J., Givens, J., and Koelsch, D. J., concur. Mr. Justice Leeper did not participate.

OPINION

VARIAN, J.

Appellant was convicted of forgery and appeals. The information charges:

"That said C. G. McDermott, on or about the 27th day of June 1931, at the County of Bonneville and State of Idaho, and prior to the filing of this information, Committed a Felony, to-wit: Forgery, Committed as follows, to-wit: Did then and there unlawfully, feloniously, knowingly, falsely and fraudulently, and with intent to prejudice, damage and defraud the Corey Implement Company, make, alter, forge and counterfeit a certain instrument in writing, in the words and figures following, to-wit:

"'Corey Implement Company. No. 8106.

"'Idaho Falls, Idaho, 6-27-1931.

"'Pay to the order of Roy Johnson

$ 50.00.

--Only Fifty

Dollars.

"'Anderson Bros. Bank

"'Idaho Falls, Idaho.

"'COREY IMPLEMENT CO.

"'By I. N. COREY.'

"And he, the said C. G. McDermott, then and there well knowing the same to be false, altered, forged and counterfeited, did then and there, to-wit: on the 27th day of June 1931, at the City of Idaho Falls, County of Bonneville, State of Idaho, wilfully and unlawfully, feloniously and fraudulently, and with intent to prejudice, damage, and defraud the said Corey Implement Company, utter, publish, and pass the same as genuine and true to the Goodrich Silver Towns, Inc."

Reference will be made to the record where necessary in discussing the various errors complained of.

It is first contended by appellant that any departure from the state by the probate judge "ipso facto works a forfeiture and creates a vacancy in office." He argues that the committing magistrate in the instant case, therefore, was not probate judge de jure, although he admits that he was a de facto officer, at the time of the preliminary examination and commitment; that having promptly challenged the magistrate's right to hold the preliminary hearing, at its inception and throughout the trial, appellant has not had a preliminary hearing and commitment, contemplated by sec. 8 of art. I of the state Constitution; and that there being no proper commitment there was no jurisdiction to file the information or try the appellant. Under the facts appearing in the record the probate judge, the committing magistrate, qualified for the office by taking the oath and furnishing bond, and afterwards sought and obtained leave from the board of county commissioners to absent himself, left, and was gone from the state for five weeks. On his return he resumed the duties of his office without again qualifying therefor. The fundamental question here is, Did such absence of the incumbent from the state create a vacancy in the office of probate judge?

I. C. A., sec. 57-901 (C. S., sec. 453): "Every civil office shall be vacant upon the happening of either of the following events at any time before the expiration of the term of such office, as follows:

"1. The resignation of the incumbent.

"2. His death.

"3. His removal from office.

"4. The decision of a competent tribunal declaring his office vacant.

"5. His ceasing to be a resident of the state, district or county in which the duties of his office are to be exercised, or for which he may have been elected.

"6. A failure to elect at the proper election, there being no incumbent to continue in office until his successor is elected and qualified, nor other provisions relating thereto.

"7. A forfeiture of office as provided by any law of the state.

"8. Conviction of any infamous crime, or of any public offense involving the violation of his oath of office.

"9. The acceptance of a commission to any military office, either in the militia of this state, or in the service of the United States, which requires the incumbent in the civil office to exercise his military duties out of the state for a period of not less than sixty days."

I. C. A., sec. 30-1513 (C. S., sec. 3555): "No county officer must absent himself from the state for more than twenty days unless with the consent of the board of county commissioners."

I. C A., sec. 30-745 (C. S., sec. 3454): "The board of commissioners may grant to any county officer of their respective counties (except the probate judge of such county) leave of absence from their county and the state, for a period not exceeding ninety days, during which time the absence of such officer does not work forfeiture of his office; provided, that before the granting of such leave of absence, the officer (except county commissioners) must appoint a deputy to perform the duties of his office, as by statute in such cases made and provided, and must present to, and file with, the board of commissioners of his county the...

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25 cases
  • State v. Bock, 8535
    • United States
    • Idaho Supreme Court
    • 30 Julio 1958
    ... ... McDermott, 52 Idaho 602, 17 P.2d 343; State v. Campbell, 70 Idaho 408, 219 P.2d 956; State v. Cofer, 73 Idaho 181, 249 P.2d 197; State v. Johnson, 74 Idaho 269, 261 P.2d 638 ... 'Appellant alleges error in admission of the testimony of the Chief of Detectives that appellant shortly after the telephone ... ...
  • State v. Mcmahan
    • United States
    • Idaho Supreme Court
    • 16 Enero 1937
    ... ... State v. Monteith, 53 Idaho 30, 20 P.2d 1023.) ... Where ... the information charges a single crime, it is not error to ... refuse to require an election by the state as to what acts it ... will rely upon in making its case. ( State v ... McDermott, 52 Idaho 602, 17 P.2d 343; 16 C. J. 861, ... § 2171; People v. Jarvis, 135 Cal.App. 288, 27 ... P.2d 77; State v. Coomer, (Vt.) 163 A. 585; ... State v. Roberts, 100 Wash 493, 171 P. 225; ... State v. Dawe, 31 Idaho 796, 177 P. 393.) ... "The ... opposite party or his ... ...
  • State v. Salhus, 7377
    • United States
    • Idaho Supreme Court
    • 9 Enero 1948
    ... ... Monteith, 53 Idaho 30, at pages 33, 34, 20 ... P.2d 1023, 1024; State v. Carlson, 53 Idaho 139, at ... page 149, 22 P.2d 143; 99 A.L.R. 777; State v. Alvord, [68 ... Idaho 78] 46 Idaho 765, 271 P. 322; State v. Frank, ... 51 Idaho 21, at page 26, 1 P.2d 181; State v ... McDermott, 52 Idaho 602, at page 612, 17 P.2d 343 ... "* ... * * As was said in People v. Frank, 28 Cal. 507: ... 'Where in defining an offense, a statute enumerates a ... series of acts, either of which separately, or all together, ... may consitute the offense, all such acts may be ... ...
  • State v. Ayres
    • United States
    • Idaho Supreme Court
    • 2 Noviembre 1949
    ... ... Singh, 34 Idaho 742, 203 P. 1064; ... State v. Bowman, 40 Idaho 470, 235 P. 577; State ... v. Calkins, 63 Idaho 314, 120 P.2d 253. It charges but ... one offense. I.C. 19-1413. State v. Brown, 36 Idaho ... 272, 211 P. 60; State v. Brooks, 49 Idaho 404, 288 ... P. 894; State v. McDermott, 52 Idaho 602, 17 P.2d ... 343; State v. Monteith, 53 Idaho 30, 20 P.2d 1023; ... State v. Goldizen, 58 Idaho 532, 76 P.2d 278; ... State v. Salhus, 68 Idaho 75, 189 P.2d 372. It is ... sufficient to put the defendant upon trial on either the ... theory that he was a principal, or that he was ... ...
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1 books & journal articles
  • Self-incrimination - what can an accused person be compelled to do?
    • United States
    • Journal of Criminal Law and Criminology Vol. 89 No. 4, June 1999
    • 22 Junio 1999
    ...write: Sprouce v. Commonwealth, 81 Va. 374 (1886). (54) People v. Whitaker, 127 Ca. App. 370, 15 Pac. (2d) 883 (1932); State v. McDermott, 52 Idaho 602, 17 Pac. (2d) 343 (1932); Rex v. Voisin, I K. B. 531 (1918), 1 A. L. R. There is considerable confusion in the Texas courts as to the admis......

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