State v. Miller, 5862

• Decision Date: 28 April 1932
• Docket Number: 5862
• Citation: 52 Idaho 33,10 P.2d 955
• Parties: STATE, Respondent, v. ARTHUR LLOYD MILLER, Appellant
• Court: Idaho Supreme Court

10 P.2d 955

52 Idaho 33

STATE, Respondent, v. ARTHUR LLOYD MILLER, Appellant

No. 5862

Supreme Court of Idaho

April 28, 1932

INFORMATION-MOTION TO QUASH-CRIMINAL LAW-LARCENY-INTENT-INSTRUCTIONS.

1. Insufficiency of evidence before committing magistrate cannot be taken advantage of upon motion to quash information unless statute specifically permits it (C. S., sec. 8863).

2. Failure to prove venue in preliminary examination cannot serve as basis of motion to quash information.

3. Transcript of testimony in preliminary examination, certified by county stenographer and by probate judge as true and correct, held sufficient, as regards certification (C. S sec. 8754, subds. 2, 3).

4. Contention that prosecutrix's decree of divorce from accused was void because complaint and jurat attending its verification had been signed with typewriter, and record did not affirmatively show summons had been delivered to sheriff cannot be entertained in criminal prosecution.

5. All presumptions are in favor of judgment of court of record and, unless it affirmatively appears from judgment-roll that there was failure in some vital process, judgment cannot be questioned.

6. Refusing advisory instruction to acquit held not reviewable by supreme court.

7. Evidence held insufficient to show felonious intent warranting reversal of conviction of grand larceny.

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

Arthur Lloyd Miller was convicted of grand larceny. Reversed.

Reversed.

J. T. Evans, for Appellant.

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

LEE, C. J. Budge, Varian and Leeper, JJ., concur. Givens, J., dissents.

OPINION

LEE, C. J.

Defendant and appellant, Arthur Miller, gambler by occupation, was convicted of grand larceny. In October, 1928, at Boulder, Colorado, he had married the prosecuting witness, Irene Miller. Due, possibly, to the peripatetic nature of the skipper's business and a suspected weakness for the fair sex, of which more later, the matrimonial barque encountered squalls, culminating in a decree of divorce granted the wife, after default, by the district court of Bonneville county September 19, 1931. The complaint charged defendant with about everything from seven-up to manslaughter, including neglect, failure to provide, infractions of the seventh commandment, kicks, curses and blows most grievous. Summons was served by publication.

According to uncontradicted evidence, eight days subsequent to the court's declaration of his spouse's independence, ex-husband Miller hove into Idaho Falls, where he proceeded to telephone his former mate, inquiring if in fact she had secured a divorce. She assured him that it was news to her, later joined him in his room at the hotel and "stayed there and talked," the pair finally walking downstairs together and across the street, where they temporarily separated, appellant wending cafewards to satisfy an inner longing. Having achieved that immediate objective, he returned to the grass-widow, visiting with her at the Clayton until about 2:30 A. M. He told her he was going to Salmon next day, she requesting him "to call her up from Salmon, and to write to her." To Salmon he went but nor called nor wrote. Came October 5th. Back in Idaho Falls, he "went over and talked to her," telling her that he purposed leaving for Sheridan next morning. The following conversation ensued:

"She begged me to stay there. And I told her no; and she says, 'No,' she says, 'you got that blonde over there in Sheridan.' I told her 'No, I ain't got nobody.' She says, 'Well, why can't you stay with me?' I says, 'Because you won't do nothing but fight with me.' So then she says--she asked me if I would write to her, and I told her yes. And she wanted me to stay all night; and I told her, 'No,' I said, 'I am going to leave, and want to get up early in the morning.'"

Appellant then took himself off to bed.

But the next day found him again at the Clayton. Both "agreed together that there should be a purchase of a car." So, together, the lately divorced partners fared forth: they investigated several, each participating in the incident conversation. On the 9th, a deal was made for a Chevrolet, the purchaser named in the contract being Irene Miller. Miller "got the license plates," though prosecutrix says she paid for them. Both took several rides together. One evening they drove down to Blackfoot and got back about 3 o'clock in the morning. He was permitted to take the car to Mackay, Shoshone and Hailey, since the prosecutrix "trusted him." On or about October 15th, he asked for the car to go to Spencer. She consented, and, according to him, washed him some socks and handkerchiefs, packed his grips and kissed him good-bye. She denied packing his grips, did not deny the washing and admitted "I might have kissed him good-bye."

Instead of going to Spencer, appellant struck for Riverton, Wyoming, eventually winding up at Deadwood, South Dakota. From there, he telephoned prosecutrix twice, she calling him later. Her repeated demands that he bring the car back met with consistent refusals to do so until he got "good and ready": this third telephone communication was held on November 14th. With the Spencer yarn fresh in mind, either perturbed by the prospective loss of a cherished car or fearing the insidious influences of that particular type of blonde who one time launched a thousand ships before the topless towers of Ilium, the now thoroughly irate prosecutrix, on November 18th, swore out a complaint before the probate judge at Idaho Falls, charging appellant with the theft of her car. He was apprehended at Rawlins, Wyoming, came back without extradition, underwent preliminary examination and was bound over for grand larceny. His motion to quash the information having been denied, a jury found him guilty as charged; and he is here on appeal.

It was contended that the court erred in denying the motion to quash. The only grounds argued in the brief are addressed to the proceedings in the preliminary examination, viz.: total failure to prove venue, insufficiency of the evidence to establish any crime whatever, and certification of the transcript by one other than the county stenographer. Taking up these contentions seriatim, insufficiency of the evidence before the committing magistrate cannot be taken advantage of upon a motion to quash, unless the statute specifically permits it. (Annotation to State v. Chance, 29 N.M. 34, 31 A. L. R. 1466, at p. 1479, 221 P. 183.) C. S., sec. 8863, gives no such permission. This court has heretofore announced the rule in State v. Foell, 37 Idaho 722, 217 P. 608. That failure to lay revenue cannot serve as a basis of such motion was squarely passed upon in People v. Panagoit, 25 Cal.App. 158, 143 P. 70.

The transcript of the testimony was certified by Bessie Mattinson as the "duly appointed acting stenographer of Bonneville County." The probate judge also certified that the "testimonies were written in shorthand and transcribed by Bessie Mattinson, Acting Bonneville County Stenographer" and that the transcript "is a true and correct account of the taking of the said testimonies." Subdivisions 2 and 3 of C. S., sec. 8754, were, therefore, fully complied with.

At the trial, appellant objected to the testimony of the prosecutrix, insisting that her decree of divorce was null and void. To substantiate this contention, he submitted in evidence the judgment-roll, pointing out that the complaint and the jurat attending its verification had been signed with a typewriter, no pen signatures appearing. It ...