State v. Schnell

• Decision Date: 09 February 1939
• Docket Number: 7822.
• Citation: 88 P.2d 19,107 Mont. 579
• Parties: STATE v. SCHNELL.
• Court: Montana Supreme Court

88 P.2d 19

107 Mont. 579

STATE v. SCHNELL.

No. 7822.

Supreme Court of Montana

February 9, 1939

Rehearing Denied Feb. 25, 1939.

Appeal from District Court, Fourteenth Judicial District Musselshell County; Stewart McConochie, Judge.

William Schnell was convicted in the District Court, to which an appeal was taken from the justice court, for driving while under the influence of intoxicating liquor, and he appeals.

Affirmed.

F. W Mettler, of Billings, for appellant.

Harrison J. Freebourn, Atty. Gen., for the State.

ANGSTMAN Justice.

Complaint was filed against defendant in the justice court charging him with a misdemeanor by "driving a motor vehicle while intoxicated, in that the said William Schnell did, then and there being, on the said 23rd day of December, 1935, within the county of Musselshell, and State of Montana, did then and there wilfully, wrongfully and unlawfully drive and operate a motor vehicle, to-wit: an automobile, upon the public highways and thoroughfares of the county of Musselshell and State of Montana, while he, the said William Schnell, was then and there under the influence of intoxicating liquor." He was found guilty in the justice court after trial by jury. He appealed to the district court and there met with the same fate. His motion for a new trial was denied and he appealed from the judgment.

The first contention of appellant is that the court erred in denying his motion, filed in the district court, to dismiss the complaint because the action had not been tried within six months after he appealed to the district court. This contention is based upon subdivision 2 of section 12223 Revised Codes, which provides: "The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: *** 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six months after the finding of the indictment, or filing of the information."

The crime was alleged to have been committed on December 23, 1935. On December 30th, 1935, defendant was tried in the justice court and found guilty. The appeal was taken on December 31. On January 13, 1937, defendant filed his motion to dismiss under section 12223, Revised Codes. The requirements of that section and of section 16 of Article 3 of our Constitution, giving to the accused the right of a speedy trial, were met by the trial in the justice court. On appeal to the district court the defendant does not have the benefit of section 12223. On appeal the trial is de novo (sec. 12339). It is to all intents and purposes a second or new trial. "Where the accused has been tried promptly and convicted, and on his own motion the conviction is set aside and a new trial ordered, he will not be entitled to a discharge under the statute because of the delay of the prosecution in trying him the second time, *** it being held that the constitutional or statutory requirements are satisfied by a speedy first trial." 16 C.J. 445. Cases supporting this view, under statutes practically identical with our section 12223, are the following: State v. Miller, 72 Wash. 154, 129 P. 1100; People v. Lundin, 120 Cal. 308, 52 P. 807; Ex parte Alpine, 203 Cal. 731, 265 P. 947, 58 A.L.R. 1500; and Ferguson v. Bechly, Iowa, 277 N.W. 755.

If defendant desired a more speedy trial in the district court on appeal from the justice court, it was incumbent upon him to apply for it. State v. Jones, 80 Wash. 335, 141 P. 700; State v. Parmeter, 49 Wash. 435, 95 P. 1012; Davison v. Garfield, 219 Iowa 1258, 257 N.W. 432, 260 N.W. 667.

Section 12223 applies only to crimes prosecuted by indictment or information. Criminal offenses in a justice court are prosecuted by complaint; whereas all criminal actions in the district court, except those on appeal, are prosecuted by information or indictment. Sec. 8, Art. 3, Montana Constitution; secs. 11621, 11622, Rev.Codes. Criminal actions appealed to the district court from a justice court are prosecuted by complaint, and, hence, section 12223 has no application to the trial of a criminal case appealed from a justice court.

The constitutional provision for a speedy trial is self-executing (People v. Molinari, 23 Cal.App.2d, Supp. 761, 67 P.2d 767), and doubtless protects a defendant who appeals to a district court from a justice court, but before a defendant can avail himself of the constitutional guaranty he must himself make a proper demand for a more speedy trial, and cannot rest upon section 12223, which has no application to such a case.

The next contention is that the complaint is not sufficiently definite and certain. Specifically, defendant contends that it cannot be ascertained therefrom whether it is based upon section 1741.7 or section 1746.1, Revised Codes. He takes the view that it rests upon section 1741.7 and takes the penalty provided in section 1741.8; whereas the court held that it was based upon section 1746.1, and took the penalty provided for in section 1746.2.

The minimum penalty under section 1741.8 for the first offense is slightly less than that under section 1746.2. Section 1746.1 was passed in 1929. It provides: "It shall be unlawful for any person while in an intoxicated condition or under the influence of intoxicating liquor or any drug or narcotic to drive, operate or run upon or over any highway or street or public thoroughfare within the state of Montana, whether within or without a municipality, any automobile, truck, motorcycle or any other motor vehicle." Section 1741.7 is a later enactment. It was passed in 1935 as a part of Chapter 185, Laws of 1935. That chapter provided for the creation of the highway patrol. By section 6, Rev.Codes 1935, § 1741.7, it classified certain offenses on the highways as menaces to the public health and safety. That section in part provides: "For the purpose of this act, the following acts on the main or secondary highways of the state of Montana outside of incorporated cities and towns, shall be deemed and declared menaces to the public health and safety, and constitute a crime punishable by law as hereinafter provided: *** 11. Driving a motor or other vehicle while intoxicated."

Section 1741.7 thus applies to those who drive motor vehicles on the highways outside of incorporated cities and towns "while intoxicated," whereas section 1746.1 reaches those who drive a motor vehicle "while in an intoxicated condition or under the influence of intoxicating liquor." Courts recognize a distinction between one who is intoxicated and one who is under the influence of intoxicating liquor. 15 R.C.L. 345; Freeburg v. State, 92 Neb. 346, 138 N.W. 143, Ann.Cas.1913E, 1101. Keeping in mind this distinction, is section 1746.1 repealed by implication by section 1741.7? We hold that it is not. Repeals by implication are not favored. State ex rel. Charette v. District Court, Mont., 86 P.2d 750, decided January 16, 1939, and not yet reported [in State report]. There is no irreconcilable conflict between the two, which is the criterion by which to determine whether there is an implied repeal. State ex rel. Esgar v. District Court, 56 Mont. 464, 185 P. 157. We hold that the two Acts must be read together. When so considered, a prosecution for driving a motor vehicle outside of incorporated cities and towns while intoxicated must be brought under section 1741.7. A prosecution for driving a motor vehicle over any highway or street within or without a municipality while under the influence of intoxicating liquor or any drug or narcotic must be based upon section 1746.1. The difference between the two offenses may be shadowy in that it is difficult to determine when the one ends and the other begins, but the legislature seems to have recognized a distinction. This is manifest from the fact that though section 1741.7 is later in point of time than section 1746.1, yet the legislature, by Chapter 129, Laws of 1937, section 2, recognizes section 1746.1 as still existing.

What is the particular charge here? As will be noted above, the charge is that defendant committed the crime of misdemeanor, to-wit: "driving a motor vehicle while intoxicated," and then proceeded to allege specifically how, when and where the crime was committed, the essential part here being that he did so by driving a motor vehicle upon the highways while he was "under the influence of intoxicating liquor."

We have often held in civil cases that where general allegations are followed by specific averments, the issues are narrowed to those embraced within the particular allegations. West v Wilson, 90 Mont. 522, 4 P.2d 469; Johnson v. Herring, 89 Mont. 156, 295 P. 1100; Flaherty v. Butte Elec. Ry. Co., 40 Mont. 454, 107 P. 416, 135 Am.St.Rep. 630. Here the complaint was defective in that it gave the offense an erroneous name. It named the offense covered by section 1741.7. But it did not set forth facts constituting an...