State v. Moodie

• Decision Date: 23 June 1922
• Parties: STATE, Respondent, v. JOSEPH MOODIE, Appellant
• Court: Idaho Supreme Court

207 P. 1073

35 Idaho 574

STATE, Respondent, v. JOSEPH MOODIE, Appellant

Supreme Court of Idaho

June 23, 1922

C. S SEC. 8333-GRAZING SHEEP ON CATTLE RANGE-COMPLAINT-DEMURRER-MOTION TO QUASH-ORIGINAL JURISDICTION OF DISTRICT COURT IN MISDEMEANOR CASES - INSUFFICIENCY OF EVIDENCE - SPECIFICATION OF ERROR.

1. Alleged errors of trial court in overruling demurrer to criminal complaint and in denying motion to quash complaint can be presented to this court only by bill of exceptions properly settled and incorporated in the record.

2. In prosecutions under C. S., sec. 8333, it is not necessary to show that the cattle range is on public land.

3. Prosecution of misdemeanors triable in the probate and justice courts may be commenced in the district court by filing a criminal complaint.

4. Where the contention is that there is no evidence to prove the offense, or a material element thereof, a general allegation that the evidence is insufficient raises the point. If there is any evidence the particulars of insufficiency must be stated.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. F. J. Cowen, Judge.

Appeal from judgment of conviction of grazing sheep on a cattle range. Affirmed.

Affirmed.

L. E Glennon, for Appellant.

The provisions of our statutes commonly known as the "Two-mile limit law," and the "Priority law," are applicable only to offenses committed in the use of the public domain. (State v. Horn, 27 Idaho 782, 152 P. 275; State v. Omaechevviaria, 27 Idaho 797, 799, 152 P. 280; Omaechevarria v. State, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763; McGinnis v Friedman, 2 Idaho 393, 17 P. 635; Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995; Spencer v. Morgan, 10 Idaho 542, 79 P. 459.)

"All public offenses triable in the district court must be prosecuted by indictment, or information, except as provided in the next section." (Sec. 8768, C. S.)

The subsequent section relates entirely to proceedings for the removal of officers, and in no way restricts the application of the preceding section to the case at bar.

No provision has been made for holding a preliminary examination in misdemeanor cases, so that the method of prosecuting by information is not available. The mode of prosecuting misdemeanor cases in the district court is properly by an indictment, and this is the only way in which the district court can acquire jurisdiction of a misdemeanor case prosecuted originally in that court.

Roy L. Black, Attorney General, James L. Boone, Assistant, and E. W. Whitcomb, for Respondent.

It is necessary to save an exception to an order of the court overruling a demurrer to the information, or a motion to quash. (Sec. 9008, C. S.; State v. Crawford, 32 Idaho 165, 179 P. 511.)

It is necessary on appeal to particularize in the specification of error wherein the evidence is insufficient to support the judgment or the verdict. (Sec. 9013, C. S.; Rule 42, Rules Supreme Court; State v. Maguire, 31 Idaho 24, 169 P. 175; Hole v. Van Duzer, 11 Idaho 79, 81 P. 109; Later v. Haywood, 14 Idaho 45, 93 P. 374; Humphrey v. Whitney, 17 Idaho 14, 103 P. 389; Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602.)

MCCARTHY, J. Rice, C. J., and Dunn, J., concur.

OPINION

MCCARTHY, J.

Appellant was convicted of grazing sheep on a cattle range in violation of C. S., sec. 8333. The appeal is from the judgment. The specifications of error are, first, the court erred in not sustaining the defendant's demurrer to the complaint; second, in not sustaining appellant's motion to quash the complaint; third, the evidence is insufficient to sustain the verdict; fourth, the evidence is insufficient to sustain the judgment.

The action of the trial court in overruling the demurrer and denying the motion to quash cannot be reviewed because not presented in a bill of exceptions. (State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Crawford, 32 Idaho 165, 179 P. 511; State v. Snook, 34 Idaho 403, 201 P. 494; State v. Ricks, 34 Idaho 122, 201 P. 827.)

Waiving this technical point we conclude that the court did not err. The specifications of uncertainty set forth in appellant's demurrer are not well taken. The point that the complaint does not state that the range in question was a part of the public domain is not well taken. In prosecutions under C. S., sec. 8333, it is not necessary to allege or prove that the cattle range is on public land. (State v. Bidegain, 34 Idaho 365, 201 P. 312.) The point raised by the motion to quash was that the filing of the sworn complaint in the district court did not invest the court with jurisdiction to try the charge. This point is disposed of by State v. Snook, supra, holding: "Prosecution of misdemeanors triable in the probate and justice courts may be commenced in the district court by filing a criminal complaint."

As to the third and fourth specifications the state contends they must be disregarded because they do not state the particulars in which the evidence is insufficient. (C. S., sec. 9068; State v. Snook, supra.) Appellant's counsel contends in the brief that there is no evidence to show that appellant acted wilfully or knowingly in violation of the statute. Where the contention is that there is no evidence to prove the offense, or a material element thereof, a general allegation that the evidence is insufficient raises the point. If there is any evidence the particulars of insufficiency must be stated. (State v. Becker, ante, p. 568, 207...