State v. Reed

• Decision Date: 26 January 1893
• Parties: STATE v. REED
• Court: Idaho Supreme Court

32 P. 202

3 Idaho 554

STATE v. REED

Supreme Court of Idaho

January 26, 1893

PRACTICE-APPEAL-WRIT OF ERROR.-Where the statutes fail to provide for an appeal from a final judgment of the district court to the supreme court, the supreme court will entertain a writ of error or other proper writ to bring such judgment before it for review, under the provisions of section 9 of article 5 of the state constitution.

SAME-IN CRIMINAL CASES.-The statutes of Idaho provide for the reviewing, on appeal, of an order of the district court overruling an application for a change of place of trial in a criminal case. Such order, not being final, can only, under the provisions of the Penal Code, be reviewed on appeal from the final judgment.

(Syllabus by the court.)

WRIT OF ERROR dismissed from District Court. Shoshone County.

Writ dismissed.

Albert Hagan, Ganahl & Bushnell and A. A. Fraser, for Plaintiff in Error.

Under the statutes regulating appeals in criminal cases, an exception taken under section 7945 of the Statutes of Idaho subdivision 1, "in refusing to grant a motion for a change of place of trial," could not be heard by this court until after final judgment, or, rather, on an appeal from a final judgment of conviction. (Idaho Stats., sec 8042.) The constitution seems to have introduced a change in this system--a change long needed--under which the rights of defendants are more surely protected, and the unnecessary cost to the state of protracted criminal trials, therefore saved. Section 9, article 5 of the constitution of Idaho says: "The supreme court shall have jurisdiction to review upon appeal any decision of the district courts, or of the judges thereof." We contend, as we have before stated, that this provision of the constitution is mandatory and self-executing. The section of the constitution of Idaho above referred to does not contain the words "as shall be prescribed by law," or a provision of like import, and hence is self-executing and in effect in praesenti. (People v. McRoberts, 62 Ill. 41.) Recapitulating our views on this matter we hold: 1. That this section of the constitution is self-executing; 2. That it was intended to remove any existing mischief; 3. That it gives the right of immediate appeal from any decision of a district court, or the judge thereof; 4. That the order denying a change of the place of trial in this case is a decision; and 5. That this provision of the constitution went into effect in pracsenti. The defendant is charged with murder. The law of presumptive innocence protects him at every stage of the investigation, and the reasonable doubt can be invoked as the necessary shield at every step. And upon inspection of the facts, disclosed upon the motion below, we urge that where there is doubt whether a fair and impartial trial can be had at the place of trial, the court should not subject the defendant to the risk of a trial other than a fair and impartial one. (People v. Webb, 1 Hill, 179, and cases cited; People v. Vermillia, 7 Cow. 179; King v. Nottingham, 4 East, 208; 1 Chitty's Criminal Law, sec. 201; State v. Nash, 7 Iowa 347.)

George M. Parsons, Attorney General, and Selden B. Kingsbury, of Counsel, for the State.

The questions involved are disposed of by a faithful and conscientious interpretation of the first sentence of section 9 of article 5 of our constitution. This sentence is as follows: "The supreme court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof." Our laws provide that the order refusing to grant a change of place of trial may, on exception taken and preserved in the record, be reviewed on appeal to this court from final judgment, or from order overruling motion for new trial. (Stats., secs. 7943, 7944, 7950, 7952, 8042-8044; Rev. Stats., sec. 8071.) Our constitution gives right of review "upon appeal" and provides that the legislature "shall provide a proper system of appeals." Thus the "review" mentioned in the text is "upon appeal," and the legislature has provided the proper system. The system provides, in such a case as the one before us, that the point shall be saved by bill of exceptions, or statement, and that it may then be reviewed by this court upon an appeal from the judgment or from order overruling motion for new trial. It provides that no appeal can be taken until after trial and final judgment. (People v. Clarke, 42 Cal. 622; People v. Majors, 65 Cal. 100, 3 P. 401, and 65 Cal. 138, 52 Am. Rep. 295, 3 P. 597.) If appeal lies and is provided for, error will not lie. (2 Hayne on New Trial and Appeal, p. 913, sec. 301; S. P. R. R. Co. v. Harlan, 24 Cal. 334.) Nor will error lie in any case before final judgment. (Stats., sec. 3817; Powell's Appellate Proceedings, p. 43, sec. 87; p. 46, sec. 15; p. 83, sec. 20; p. 103, sec. 5.)

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

The defendant was indicted at the September term, 1892, of the district court of Shoshone county, for the crime of murder. On October 3, 1892, he was arraigned, and demurred to the indictment, and, the same being overruled, on the sixth day of October, 1892, he entered his plea of not guilty, at same time giving notice in open court that he would apply for a change of venue, and on same day filed his petition and certain affidavits in support thereof. The motion for change of venue being overruled, defendant applied to this court for a writ of error, and brings said ruling of district court to this court for review. Writ of error was issued, and upon the return thereof the attorney general moves to dismiss the same upon the ground that such writ will not lie from an order overruling a motion to change the place of trial of a criminal case. Argument was heard upon the motion and case together.

Section 9, article 5 of the constitution of Idaho provides as follows: "The supreme court shall have jurisdiction to review upon appeal any decision of the district courts or the judges thereof"; and it is contended by defendant that there being no provision in the statutes of Idaho for an appeal from an order of the district court overruling a motion for a change of venue in criminal cases, such order being final, it is within the power and jurisdiction of the supreme court to review the same upon writ of error. It is conceded by counsel for the defendant that the term "and decisions," as used in the section of the constitution above referred to, is not to be construed as meaning all decisions made by said courts, or the judges thereof, during the progress of a trial, but only such as are final; and he claims that an order of the court overruling a motion for a change of place of trial is final, and counsel have argued ably and ingeniously in support of such contention, and cite many authorities which they claim support their view. Thus far we may go with counsel for defendant in their contention. If there is no provision in the statute by which a defendant in a criminal case may have the order of the district court overruling his motion for a change of place of trial "reviewed on appeal," then, under the provision of section 9, article 5 of the constitution, he may have his writ of error, or such other proper writ as this court may see fit to issue to reach that end. The decisions in Ex parte Thistleton, 52 Cal. 220, People v. Jordan, 65 Cal. 644, 4 P. 683, and the other cases cited by defendant's counsel, all recognize and proceed upon this principle.

It would seem, then, that the questions involved in this case are simply these: 1. Is the order of the district court overruling defendant's motion for a change of venue a final order? 2. Do the statutes of Idaho provide for a "review on appeal" of such order? We have not been cited to, nor have we been able to find, a case where a direct appeal has been allowed from an order overruling a motion for change of venue in a criminal case, nor have we seen any authority holding that such an order is final. Powell on Appellate Proceedings, section 15, treating of proceedings in error, says: "It was an established principle in such proceedings in error that the appellate court would not sustain such proceedings in error except upon the final judgment in the court below; for, if there were further proceedings in the court below previous to final judgment, the proceedings in error would not be sustained for two reasons: 1. Because in such further proceedings in the case the error excepted to might be so far corrected as that the party would have nothing to complain of; and 2. Because otherwise the case might be brought up on error repeatedly, while by waiting until the final judgment the appellate court could dispose of the errors in the case at once." In the case under consideration the defendant has not, by reason of the action of the district court in overruling his motion for a change of venue, been deprived of the right to make it again, should his counsel deem such a course advisable in the further progress of the case, nor is it necessarily presumable that the court would adhere to its first ruling should the circumstances under which the second application is made warrant the court in coming to a different conclusion. It is by no means an unheard of proceeding for the trial court, after having once...