State v. Montgomery

• Decision Date: 13 February 1930
• Docket Number: 5432
• Citation: 48 Idaho 760,285 P. 467
• Parties: STATE, Respondent, v. N.E. MONTGOMERY, Appellant
• Court: Idaho Supreme Court

285 P. 467

48 Idaho 760

STATE, Respondent, v. N.E. MONTGOMERY, Appellant

No. 5432

Supreme Court of Idaho

February 13, 1930

CRIMINAL LAW-RECEIVING STOLEN PROPERTY-INFORMATION-SUFFICIENCY OF-ORDER OF COMMITMENT-SUFFICIENCY OF-EVIDENCE OF OTHER CRIMES-ADMISSIBILITY-ELECTION OF OFFENSES.

1. Where depositions taken at preliminary hearing disclosed that a public offense had been committed and that there was sufficient cause to believe defendant guilty thereof, it was duty of magistrate to hold defendant for trial in district court for any offense disclosed at preliminary hearing.

2. Fact that committing magistrate inadvertently in his order of commitment held defendant to answer upon the offense charged in complaint, instead of that contained in the within depositions, was immaterial.

3. Information charging crime of receiving stolen property, in violation of C. S., sec. 8438, in order to be sufficient need only charge offense as defined by code or in language of equivalent import.

4. Information under C. S., sec. 8438, for receiving stolen property need not allege that defendant received stolen property both for his own gain and to prevent owner from again possessing his property, since allegation of either intent, under the statute, is sufficient.

5. Information under C. S., sec. 8438, for receiving stolen property substantially conforming to provisions of secs 8825, 8834, and which, after charging defendant with receiving such property, alleged that such defendant then and there well knowing the said personal property and each and every article and part thereof to have been stolen sufficiently alleged that property had been stolen within sec. 8835, providing that no indictment or information is insufficient by reason of defect or imperfection in matter of form.

6. Possession of property by person named in information or some member of her family was sufficient to support allegation of ownership in information for crime of receiving stolen goods in violation of C. S., sec. 8438.

7. Evidence of other crimes is always admissible when such evidence tends directly to establish particular crime.

8. Evidence of other crimes is usually competent to prove specific crime when it tends to establish motive, intent absence of mistake or accident, common scheme or plan embracing commission of two or more crimes so related to each other that proof of one tends to establish the others.

9. Any pertinent fact which throws light upon subject matter under judicial consideration, accused's guilt or innocence of crime for which he is charged and on trial, is admissible nor is such probative fact to be excluded merely because it may also prove or tend to prove that accused has committed another crime.

10. In prosecution under C. S., sec. 8438, for receiving stolen property, refusal to strike from record testimony of transactions relating to offense on which state elected not to proceed was not erroneous.

11. Where state was required on motion of defendant at both trials to elect on which of separate offenses it would rely for conviction, defendant was not entitled to arrest of judgment on ground that state at second trial elected to stand upon a different offense than as to which it elected to stand on the first trial.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. Hugh A. Baker, Judge.

N.E. Montgomery was convicted of receiving stolen property for his own gain, knowing the same to have been stolen, and he appeals. Affirmed.

Affirmed.

S. T. Lowe, for Appellant.

The judgment of conviction should be reversed, for the court had no jurisdiction of the defendant, because no legal or proper order was ever made by the committing magistrate, holding the defendant to answer in the district court.

The order as made held the defendant to answer the offense charged in the complaint and not the offenses as shown by the depositions as required by the statute. (C. S., sec. 8757; State v. Farris, 5 Idaho 666, 51 P. 772; In re Knudtson, 10 Idaho 676, 79 P. 641; State v. McGreevey, 17 Idaho 453, 105 P. 1047.)

The depositions as taken at the preliminary hearing disclose seven distinct and separate offenses. (State v. Main, 37 Idaho 449, 216 P. 731.)

The order holding the defendant to answer, if sufficient for any offense, could only hold the defendant to answer for one offense, to wit: The offense charged in the complaint, and it would be impossible to determine which of the seven offenses as shown by the depositions that the committing magistrate held the defendant to answer, or on which of the seven offenses included in the information the defendant was held to answer.

The prosecuting attorney has no power to file an information against a defendant until after the defendant has been committed by a magistrate, and then only for the offense for which the accused was committed. (State v. McGreevey, supra; State v. Bilboa, 33 Idaho 128, 190 P. 248; People v. Wallace, 94 Cal. 497, 29 P. 950; People v. Howard (Howland), 111 Cal. 655, 44 P. 342; Ex parte Fowler, 5 Cal.App. 549, 90 P. 958; State v. Jarrett, 46 Kan. 754, 27 P. 146; State v. Boulter, 5 Wyo. 236, 39 P. 883; Payne v. State, 30 Okla. Crim. 218, 235 P. 558; People v. Storke, 39 Cal.App. 633, 179 P. 527.)

The demurrer of the defendant to the information should have been sustained, for the information does not state facts sufficient to constitute a public offense, because it does not allege that the property was stolen. An information is not sufficient which states facts inferentially. (State v. Singh, 34 Idaho 742, 203 P. 1064; People v. Robles, 117 Cal. 681, 49 P. 1042; People v. Cohen, 118 Cal. 74, 50 P. 20; People v. Simpton, 133 Cal. 367, 65 P. 834; United States v. McConaughy, 33 F. 168, 13 Sawy. 141.)

The information did not substantially conform to the requirements of C. S., secs. 8825, 8826 and 8827, because it did not contain a statement of the acts constituting the offense in ordinary and concise language; more than one offense was charged in the information, for the information on its face stated three distinct offenses without showing that they were one and the same transaction, to wit: The receipt by the defendant of one electric iron with cord attached, seven rugs and fourteen blankets. (C. S., sec. 8829; Trask v. People, 35 Colo. 83, 83 P. 1010.)

One offense can be included in an information. (C. S., sec. 8829; In re Bottjer, 45 Idaho 168, 260 P. 1095; State v. Bilboa, 33 Idaho 128, 190 P. 248; State v. Gutke, 25 Idaho 737, 139 P. 346.)

The information followed the complaint filed in the probate court before the committing magistrate, and not the depositions on which it was based, as required by the statute. (State v. McGreevey, supra.)

The depositions taken before the committing magistrate showed that if any offense had been committed, seven distinct and separate offenses had been committed, and when the information is construed in connection with the depositions, it is apparent that the information charges seven distinct and separate offenses. (State v. Dawe, 31 Idaho 796, 177 P. 393; Trask v. People, supra; Ex parte Jones, 46 Mont. 122, 126 P. 929; Sweek v. People, 85 Colo. 479, 277 P. 1; C. S., sec. 8829; In re Bottjer, supra; State v. Bilboa, supra; State v. Gutke, supra.)

The defendant has never been legally held to answer for any of the offenses set forth and described in the information, because the order made and entered by the committing magistrate held the defendant to answer for the offense charged in the complaint and not the offense or offenses named in the within depositions, as required by law. (C. S., sec. 8757; State v. Main, supra; State v. McGreevey, supra.)

The motion of the defendant at the close of the evidence on behalf of the state to strike all of the testimony pertaining to all of the offenses as shown by the record, excepting the offense on which the state elected to rely, to wit, the seventh offense or transaction, should have been granted, for the testimony related to other offenses charged in the information and was introduced for the purpose of proving the defendant guilty, and not for the purpose of showing knowledge or intent, and was a part of the information. The refusal of the court to strike the testimony as to offenses charged in the information and shown by the evidence, on which the state elected not to proceed, was error. (Trask v. People, supra; White v. People, 8 Colo. App. 289, 45 P. 539.)

The election of the state at the first trial of the defendant and the court's order in sustaining the motion of the defendant to strike all of the testimony pertaining to the seventh offense was a withdrawal from the consideration of the jury, the offense upon which the defendant was subsequently convicted, to wit, the seventh cause of action, for which the defendant had been placed in jeopardy. (State v. Gutke, supra; 16 C. J., p. 260, sec. 393; 22 Cyc. 407; 8 R. C. L., p. 145, sec. 130; Runyon v. Morrow, 192 Ky. 785, 19 A. L. R. 632, 234 S.W. 304; Elam v. State, 26 Ala. 48; People v. Jenness, 5 Mich. 305.)

The defendant cannot be twice placed in jeopardy. (Const., art. 1, sec. 13; United States v. Aurandt, 15 N.M. 292, 107 P. 1064, 27 L. R. A., N. S., 1181; State v. Falk, 46 Kan. 498, 26 P. 1023; State v. Hows, 31 Utah 168, 87 P. 163; Camp v. State, 7 Okla. Crim. 531, 124 P. 331; Edelhoff v. State, 5 Wyo. 19, 36 P. 627.)

W. D. Gillis, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

Where a series of acts, either of which separately or all together may constitute an offense, may be charged in a single count for the reason that if each act may by itself constitute an offense, all of them can do no more and likewise constitute but one and the same...