State v. Pay

• Decision Date: 20 January 1915
• Docket Number: 2660
• Citation: 146 P. 300,45 Utah 411
• Court: Utah Supreme Court
• Parties: STATE v. PAY

146 P. 300

45 Utah 411

STATE v. PAY

No. 2660

Supreme Court of Utah

January 20, 1915

Appeal from District Court, Fifth District; Hon. Joshua Greenwood Judge.

Matthew Pay was convicted of a crime. He appeals.

REVERSED AND REMANDED, with directions.

Henry Adams and N. A. Robertson, for appellant.

A. R Barnes, Atty. Gen., and E. V. Higgins and G. A. Iverson Asst. Attys. Gen., for the State.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

On the 31st day of May, 1913, a complaint under oath was duly filed before one J. S. Cooper, a justice of the peace in and for Juab County, Utah, in which it was charged that the defendant on the 20th day of April, 1913, in Juab County, "did then and there willfully, unlawfully, and feloniously steal, take, and carry away 100 head of sheep," the personal property of one A. J. Aagard. The marks and brands identifying the said sheep were also stated in said complaint. A warrant of arrest was duly issued, and the defendant was arrested and brought before said justice, and a preliminary hearing was deferred from time to time until the 7th day of July, 1913. On that day a preliminary examination was duly held before said justice. After the evidence was completed, the defendant filed a motion, in which he asked that the complaint be dismissed upon the ground that the State had failed to prove that the larceny charged, or any larceny, had been committed. The justice reserved judgment until the following day. The transcript of the justice relating to the motion, as filed in the district court, reads as follows:

"The motion to dismiss was denied, and the cause was then submitted to the court without argument. In summing up, the court held that, although the charge in the complaint and the evidence as heard were at variance, the evidence disclosed the fact that a crime had been committed. The court ordered that the defendant be held to answer to the court of the Fifth Judicial District on the charge of having changed the earmarks of the sheep mentioned in the complaint with intent to steal the same."

The justice therefore made an indorsement on the complaint as follows:

"It appearing to me that the offense of changing marks on certain sheep with intent to steal the same has been committed and there is sufficient cause to believe the within named Matthew Pay guilty thereof, I order that he be held to answer the same. J. S. Cooper, Justice of the Peace."

The transcript of the proceedings had before the justice was duly filed in the district court of Juab County, where, on the 15th day of August, 1913, the district attorney filed an information based on the foregoing return of the justice, in which the defendant was charged with the crime of "altering marks on sheep with intent to steal the same," in the following words:

"That the said defendant, Matthew Pay, on the 20th day of April, A. D. 1913, in Juab County, State of Utah, did then and there willfully, unlawfully, and feloniously alter the earmarks on one hundred head of sheep, said sheep being marked with a slit and upper bit in the left ear and with an underslit in right ear, and being then and there the personal property of one A. J. Aagard, by then and there cutting the ears of said sheep so as to alter and deface said earmarks, with the specific, unlawful, and felonious intent thereby to steal said sheep; contrary," etc.

The defendant, before pleading to the information, in proper time and form, filed a motion to set aside or quash the information upon the ground, among others, that the defendant was neither given nor had waived a preliminary examination upon the charge contained in the information filed by the district attorney. The motion was based upon the record as we have given it, which was supplemented by the affidavit of the defendant. The court denied the motion and compelled the defendant to go to trial. He made timely and proper objections to the jurisdiction of the court for the reasons before stated, all of which were overruled. The defendant offered no evidence, and the jury returned a verdict of guilty. He filed a motion in arrest of judgment for the reasons already stated, which was also overruled. The court then entered judgment sentencing the defendant to a term in the state prison, and he appeals.

The defendant now assigns the several rulings of the court as error, and insists that the court erred in denying his motion to set aside or quash the information upon the ground that the defendant had not been given a preliminary examination, although he had not waived the same. The record in this case squarely presents the question whether the information which the statute authorizes the district attorney to file must, in substance at least, charge the same offense which is charged in the complaint on which the warrant of arrest and the preliminary examination, if there be one, are based. The precise question has not heretofore been passed on in this jurisdiction. The question, in view of some of the conflicting provisions of our Constitution and statutes relating to the initiation and prosecution of criminal offenses, is neither free from difficulty nor doubt.

The defendant contends that under our Constitution and statutes the information must substantially charge the crime stated in the complaint, or one which is included or embraced within it, and further contends that in case the crime charged in the information is not the one stated in the complaint, or one that is included therein, the district court cannot, over the objection of the defendant, legally proceed to try him for the offense charged in the information. To support their contention, counsel for the defendant cite and rely on People v. Wallace, 94 Cal. 497; 29 P. 950; People v. Christian, 101 Cal. 471; 35 P. 1043; People v. Howard, 111 Cal. 655; 44 P. 342; and 12 Cyc. 305. In Cyc. it is said:

"The information therefore can only be for the offense upon a charge of which the accused has had a preliminary examination or for an offense included within such charge."

Upon the other hand, the State contends that the magistrate before whom the original complaint is filed may require the accused to appear before the district court for trial for any offense of which the magistrate, from the evidence adduced, finds there is probable cause to believe the accused guilty, whether such offense was charged in the complaint or not. In support of their contention, counsel for the State cite and rely on State v. Newton, 29 Wash. 373; 70 P. 31; People v. Staples, 91 Cal. 23; 27 P. 523; People v. Wheeler, 73 Cal. 252; 14 P. 796; State v. Boulter, 5 Wyo. 236; 39 P. 883; People v. Nogiri, 142 Cal. 596; 76 P. 490; and People v. Lee Look, 143 Cal. 216; 76 P. 1028.

In our judgment the only cases where the doctrine is held as broadly as is contended for by the State are People v Wheeler, and State v. Newton, supra. People v. Wheeler was, however, squarely overruled by the Supreme Court of California in the case of People v. Christian, 101 Cal. 471; 35 P. 1043. In that case it was also held that what was said upon the subject in People v. Staples, supra, was merely obiter dicta, and such clearly was the case. People v. Christian was approved and followed in the case of People v. Howard, supra. Counsel for the State, however, contend that in People v. Lee Look and in People v. Nogiri, supra, the doctrine announced in People v. Wheeler is again revived. An examination of those two cases, however, discloses that the question was not before the court. True, in the case of People v. Nogiri it is held that it is the offense which the magistrate, on the preliminary examination, finds was committed, rather than the offense charged in the complaint, which controls the district attorney. It is not held in that case, however, that the accused may in the information be charged with an offense different from and not included within that stated in the complaint and upon which the preliminary examination was held. It has, however, also been held by the Supreme Court of Kansas that under the statutes of that state the accused may be charged in the information filed in the district court with an offense other than the one contained in the initial complaint. But it is also said by the court in that case that, if the magistrate finds that a different offense was committed than the one charged in the complaint, then an amended or new complaint should be filed, although it is there held that to file such new complaint is not absolutely necessary under the Kansas statute. Redmond v. Kansas, 12 Kan. 172, 176. Michigan cases are also cited sometimes as holding the doctrine contended for by the State. In Michigan, however, while a complaint in some form seems necessary to initiate a criminal proceeding, yet such complaint need not be in writing, and the whole matter, to a large extent at least, seems to rest upon the evidence which is produced in support of the complaint and upon which the warrant of arrest is based. See Turner v. People, 33 Mich. 363. It is said in that case that a complaint is necessary to set a criminal prosecution in motion; but the form thereof, it is held, is not material. In Nebraska, whose statutes with regard to the commencement of criminal prosecutions before magistrates and the holding of preliminary examinations and the filing of informations in the district court are in effect like ours (Rev. Stat. Neb. 1913, sections 8940, 9068), it is held that the charge in the information must substantially be the same as the one contained in the complaint, and if there be a substantial variance it is cause for quashing the information upon the ground that no preliminary examination has been had or waived for the offense charged in the...