State v. McGreevey

• Decision Date: 31 December 1909
• Parties: STATE, Respondent, v. JAMES MCGREEVEY, Appellant
• Court: Idaho Supreme Court

105 P. 1047

17 Idaho 453

STATE, Respondent, v. JAMES MCGREEVEY, Appellant

Supreme Court of Idaho

December 31, 1909

CRIMINAL LAW-PRELIMINARY EXAMINATION-COMMITMENT BY MAGISTRATE-INFORMATION BY PROSECUTOR-SELF-DEFENSE-INSTRUCTIONS.

1. Under the provisions of sec. 8, art. 1 of the state constitution, authorizing prosecutions "on information of the public prosecutor after a commitment by a magistrate," held, that the prosecutor has no power or authority to file an information against an accused person until after such person has been committed by a magistrate and that he can file his information for the offense only for which the accused was committed by the magistrate.

2. It was intended by the framers of the constitution in adopting sec. 8, art. 1 of the constitution to accord every accused person an opportunity for a hearing before a magistrate on the offense charged against him as a condition precedent to the filing of an information by the public prosecutor charging the accused with the commission of such offense.

3. Under the provisions of sec. 7662, Rev. Codes, enacted by the legislature in furtherance of and to carry out the provisions of sec. 8, art. 1 of the constitution, "No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law "

4. The following instruction does not correctly state the law of self-defense, and it is held to be erroneous:

"The court instructs the jury that before a party can justify the taking of life in self-defense he must show that there was reasonable ground for believing that he was in great peril and that the killing was necessary for his escape and that no other safe means was open to him. When one believes himself about to be attacked by another and to receive great bodily injury, it is his duty to avoid the attack if he can safely do so; and the right of self-defense does not arise until he has done everything in his power to avoid this necessity."

5. The law of self-defense discussed and considered.

6. Evidence of the previous good character of an accused person is admissible in cases of homicide where the plea is self-defense, for the purpose of showing that the defendant when he committed the fatal act did so under an honest and conscientious belief that it was necessary for the protection of his person, and to likewise show that he acted with good motives and without malicious, wrongful or criminal intent, and such evidence should go to the jury to be considered by them the same as any other evidence in the case.

7. In proving threats made by an accused person prior to the commission of the offense charged, it is necessary to in some manner show that the threats made were meant for and had reference to the person subsequently killed or injured by the accused.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District, for the County of Canyon. Hon. Ed L. Bryan, Judge.

Prosecution for murder; conviction of manslaughter. Defendant appealed. Judgment reversed.

Reversed and remanded.

Rice Thompson & Buckner, and W. A. Stone, for Appellant.

The prosecuting attorney is limited in his powers to charging the offense upon which the defendant has been committed. (Charge to Grand Jury, 2 Saw. 667, 30 F. Cas. No. 18,255; In re Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L. ed. 849; 20 Cyc. 1294, and cases cited; Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L. ed. 232.)

The supreme court of California, with constitutional and statutory provisions quite similar to our own, has taken this view in the case of People v. Nogiri, 142 Cal. 596, 76 P. 490.

The prosecuting attorney can proceed by information only upon the offense designated by the magistrate who holds the examination. (State v. Boulter, 5 Wyo. 236, 39 P. 883; Yaner v. People, 34 Mich. 286; People v. Bechtel, 80 Mich. 623, 45 N.W. 582; People v. Pichette, 111 Mich. 461, 69 N.W. 739.)

Where the right to file an information by the prosecuting attorney is based upon statutes or constitutions like our own, they are uniform in requiring the prosecuting attorney to file an information for the same offense as that named by the committing magistrate or for an offense of a lesser grade than that named, and in no instance do they permit the prosecuting attorney to file an information charging a different offense or a higher grade of offense than that named by the committing magistrate. (People v. Jones, 24 Mich. 215; People v. Sessions, 58 Mich. 594, 26 N.W. 291; People v. Handley, 93 Mich. 46, 52 N.W. 1032; Kennegar v. State, 120 Ind. 176, 21 N.E. 917; Alderman v. State, 24 Neb. 97, 38 N.W. 36; City of Galt v. Elder, 47 Mo.App. 164; Mills v. State, 53 Neb. 263, 73 N.W. 761; Hanson v. State (Tex. Cr. App.), 61 S.W. 120.)

The fact that the court gave a correct instruction upon the particular phase of the right of self-defense in instruction No. 20 does not render harmless the giving of an erroneous instruction on the same subject. (Harris v. People, 32 Colo. 211, 75 P. 427; 1 Blashfield Ins. to Juries, sec. 78; State v. Webb, 6 Idaho 428, 55 P. 892.)

The court erred in giving instruction No. 46, in regard to character evidence to the jury. (Latimer v. State, 55 Neb. 609, 70 Am. St. 403, 76 N.W. 207; State v. Van Kuran, 25 Utah 8, 69 P. 60; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; Commonwealth v. Leonard, 140 Mass. 473, 54 Am. Rep. 485, 4 N.E. 96; Powers v. State, 74 Miss. 777, 21 So. 657; Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L. ed. 467; Remsen v. People, 43 N.Y. 6; People v. Casey, 53 Cal. 360; Hughes, Instructions to Juries, sec. 341.)

D. C. McDougall, Attorney General, J. H. Peterson, Assistant, and Owen M. Van Duyn, Prosecuting Attorney of Canyon County, for Respondent.

From the earliest time until the case of People v. Nogiri, 142 Cal. 596, 76 P. 490, decided by the supreme court of California, in 1904, that court uniformly held in a long line of cases that the public prosecutor, in filing his information, was governed, not by the commitment of the magistrate, but by the depositions taken at the preliminary hearing. (People v. Vierra, 67 Cal. 231, 7 P. 640; People v. Lee Ah Chuck, 66 Cal. 662, 6 P. 859; People v. Christian, 101 Cal. 474, 35 P. 1043.)

At the time of the adoption of this statute (sec. 7579), the California court was holding in line with the above authorities. In adopting a statute from a sister state, the construction which has been put upon that statute by the courts of that state is adopted with the statute. (Territory v. Evans, 2 Idaho 651, 23 P. 232.)

"The prosecutor has a right to describe the offense, as it is declared by the facts appearing upon preliminary examination." (People v. Karste, 132 Mich. 455, 93 N.W. 1081; Brown v. People, 39 Mich. 37; Alderman v. State, 24 Neb. 97, 38 N.W. 36; State v. Jarrett, 46 Kan. 754, 27 P. 146; State v. Reedy, 44 Kan. 190, 24 P. 66; Redmond v. State, 12 Kan. 172.)

The state of Washington holds definitely to the doctrine that the basis of the information is the depositions taken at the preliminary hearing (State v. Myers, 8 Wash. 177, 35 P. 580), and has a statute identical with our statute. (Sec. 7660, Rev. Codes. See Ballinger's Code, sec. 6835; State v. Farris, 5 Idaho 666, 51 P. 772.)

The defendant was not prejudiced by the information filed against him charging murder, when as a matter of fact he was convicted of the crime for which he was committed and for the crime for which he contends he should have been committed in the first instance. (Territory v. Evans, 2 Idaho 651, 23 P. 232; State v. Rice, 7 Idaho 762, 66 P. 87; Territory v. Neilson, 2 Idaho 614, 23 P. 537.)

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

On February 25, 1908, the prosecuting attorney of Canyon county filed an affidavit or complaint with a justice of the peace of Canyon county, charging the appellant, James McGreevey, with the crime of murder committed by shooting and killing one W. Grant Whitney. The defendant was arrested and taken before the justice, and his preliminary examination was duly and regularly held in conformity with the requirements of law. Thereafter and on the 29th day of February, and after the evidence had all been submitted, the magistrate made an order holding the defendant for appearance in the district court on the charge of manslaughter and made and indorsed his order on the affidavits as required by law. On March 21st the prosecuting attorney filed his information in the district court charging the defendant with the crime of murder in the first degree. The defendant appeared for arraignment and thereupon filed his motion to quash the information on the ground that he had never been committed by a magistrate for the crime of murder, and that he had never been held for that or any other or higher offense than that of manslaughter. The court overruled the motion, and the appellant assigns the ruling as error. The defendant was thereafter tried upon the charge of murder and was convicted for the crime of manslaughter and sentenced to imprisonment, and has appealed from the judgment and order denying his motion for a new trial.

The first question to be considered is the action of the court in overruling the motion to quash the information. Upon the threshold of this inquiry we are confronted by the provision of sec. 8 of art. 1 of the constitution, which constitutes an express limitation in this state on the power to prosecute on information for felonies and criminal offenses of any grade above that "cognizable by probate courts or by justices of the peace." This provision of the constitution is as follows:

"No person shall be held to answer for any felony or...