State v. Sedam

• Decision Date: 02 December 1940
• Docket Number: 6827
• Citation: 107 P.2d 1065,62 Idaho 26
• Parties: STATE, Respondent, v. JAMES R. SEDAM, Appellant
• Court: Idaho Supreme Court

107 P.2d 1065

62 Idaho 26

STATE, Respondent, v. JAMES R. SEDAM, Appellant

No. 6827

Supreme Court of Idaho

December 2, 1940

CRIMINAL LAW-DRAWING OF CHECK WITHOUT SUFFICIENT FUNDS-INTENT-INFORMATION, SUFFICIENCY OF-OBJECTIONS, WHEN MADE-PLEA OF GUILTY IN JUSTICE COURT-APPEAL TO DISTRICT COURT-BEST EVIDENCE.

1. Under statute, the objection that an information does not state facts sufficient to constitute a public offense must be made by demurrer or motion in arrest of judgment, and it comes too late when first made on appeal. (I. C. A., sec 19-1611.)

2. A criminal complaint substantially in language of statute charging that defendant willfully and unlawfully and with intent to defraud did make, draw, and deliver a check drawn on a named bank, knowing that he had no funds in the bank to cover the payment of the check in the sum of $15 lawful money of the United States, contrary to the form of the statute was sufficient. (I. C. A., sec. 17-3908.)

3. An assignment of error that transcript of proceedings in justice court was admitted in evidence to defendant's prejudice on appeal to the district court in prosecution for making and issuing a check without funds in the bank to pay it was groundless where district court sustained defendant's objection and did not admit transcript.

4. The failure to cite any authorities on a particular assignment of error and to argue it in the brief alone obviated any consideration thereof by the Supreme Court.

5. A plea of guilty in a justice court is an admission of guilt and is admissible in evidence on a trial de novo on appeal to the district court.

6. In prosecution for making and issuing a check without funds in the bank to pay it, under statutes relating to judicial records and proof thereof, record of proceedings in justice court showing that defendant pleaded guilty was admissible as "prima facie evidence" on trial de novo on appeal to the district court. (I. C. A., secs. 16-302, 16-309, 16-310, 17-3908, 19-4004, 19-4005.)

7. Where a justice of the peace has acquired jurisdiction, the only competent evidence of the proceedings had is the record required to be made by law.

8. Where there is written evidence of a fact in issue, the writing, whether required by law or not, is generally the "best evidence."

9. The record of judgments and court proceedings is generally the "best evidence" thereof.

10. Under statutes relating to judicial records and proof thereof, the records of a justice court are admissible as the "best evidence" of proceedings had therein in criminal cases of which a written record is made as required by statute. (I. C. A., secs. 16-302, 16-309, 16-310, 19-4004, 19-4005.)

11. In prosecution for making and issuing a check without funds in the bank to pay it, defendant's denial of intent to defraud, which is a necessary ingredient of the offense under statute, raised an issue of fact for the jury. (I. C. A sec. 17-3908.)

12. In prosecution for making and issuing a check without funds in the bank to pay it, other checks unpaid for want of funds issued shortly after check in question and when defendant's depleted and exhausted bank account had not been replenished were properly admitted as evidence of his intent to defraud, which is a necessary ingredient of the offense under statute. (I. C. A., sec. 17-3908.)

13. The rights under the constitutional prohibition against compelling an accused to be a witness against himself may be waived. (Const., art. 1, sec. 13.)

14. On appeal from conviction for making and issuing a check without funds in the bank to pay it, in absence of objection that requiring defendant to produce another check unpaid for want of funds issued shortly after check in question violated any of defendant's constitutional rights under prohibition against compelling an accused to testify against himself, no error was presented for consideration by the Supreme Court. (I. C. A., sec. 17-3908; Const., art. 1, sec. 13.)

15. In absence of a clear abuse of discretion, the action of the trial court in a criminal case will not be reviewed.

16. Evidence was sufficient to sustain conviction for making and issuing a check without funds in the bank to pay it. (I. C A., sec. 17-3908.)

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Appellant was convicted of making and issuing a check without funds to pay it and he appeals. Affirmed.

Affirmed.

Alfred C. Cordon, for Appellant.

No person shall be compelled in any criminal case to be a witness against himself. (Art. 1, sec. 13, Const. Idaho, Amend. 5, U. S. C.; In re Nachman, (D. C. S. C., 1902) 114 F. 995, 996; Internal Revenue Agent v. Sullivan, (D. C. S. C., 1923) 287 F. 138; Grant v. United States, (N. Y., 1913) 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 428; McKnight v. United States, (C. C. A. Ky., 1902) 115 F. 972, 981, 54 C. C. A. 358.)

The facts stated by the criminal complaint do not constitute a public offense and are not stated with sufficient minuteness to bar another prosecution for the same transaction. (Secs. 17-3908, 19-4001, I. C. A.; State v. Bowman, 40 Idaho 470, 475, 235 P. 577; State v. O'Neil, 24 Idaho 582, 135 P. 60; State v. Lottridge, 29 Idaho 53, 155 P. 487; State v. Johnson, 54 Idaho 431, 32 P.2d 1023.)

J. W. Taylor, Attorney General, and C. M. Jeffery, Prosecuting Attorney, for Respondent.

Trial on appeal in a criminal case from a justice court to the district court is by trial de novo. (Sec. 19-4042, I. C. A.; State v. Ashby, 40 Idaho 1, 230 P. 1013; State v. Stafford, 26 Idaho 381, 143 P. 528; State v. Cowen, 29 Idaho 783, 162 P. 674.)

The sufficiency of the facts stated to constitute a public offense in a criminal complaint, cannot be raised for the first time on appeal to this court. (Secs. 19-1611, 19-4027, 19-4028, I. C. A.; State v. Neil, 58 Idaho 359, 74 P.2d 586; State v. Hinckley, 4 Idaho 490, 42 P. 510.)

GIVENS, J. Morgan and Holden, JJ., concur. BUDGE, J., AILSHIE, C. J., Dissenting.

OPINION

GIVENS, J.

Upon appeal to the district court from criminal proceedings against him in the justice court for making and issuing a check without funds in the bank to pay it, under section 17-3908, I. C. A., ^[1] appellant was convicted upon trial de novo after plea of not guilty and sentenced to the county jail.

No demurrer to the information, objection to any evidence or motion in arrest of judgment was made or interposed by appellant upon the ground the information did not state facts sufficient to constitute a public offense: He contends he may now, however, raise the point. Under section 19-1611, I. C. A., ^[2] concededly applicable, this court has held such objection must be made in the manner prescribed, i. e., demurrer or motion in arrest of judgment and comes too late when first broached on appeal.

". . . . In Territory v. Carland, 6 Mont. 14, 9 P. 578, the court, in passing upon this question, on a statute identical with that of Idaho, say: 'In this case there was a motion in arrest of judgment. It does not, however, appear that this motion was ever acted upon by the court. The appellant did not therefore insist upon his motion, and will be deemed to have waived it. The statute having provided the method of procedure to take advantage of such a defect, that method must be pursued. The objection that the facts stated in the indictment do not constitute a public offense cannot be presented in this court for the first time.' And the same court, in a recent case (State v. Malish, 15 Mont. 506, 39 P. 739), reiterate and affirm this doctrine, adding the following language: 'The ruling in the Carland case in upholding the statute cited does not hold that a judgment will be sustained upon an information which does not state an offense, nor that such judgment will be sustained upon an information where it appears that the court has no jurisdiction of the offense. The decision simply recognizes that the statute provides, as it has a right to do, in what court these objections should be made, and that they must be first made in the district court, rather than in the supreme court. Appeals are a matter of statutory regulation.' We are in accord with the Montana court in its construction and application of this statute. Other questions are raised by the record, but, as the decision of this disposes of the appeal, we do not feel called upon to go further in the consideration of the case. The judgment of the district court is affirmed." (State v. Hinckley, 4 Idaho 490, 493, 42 P. 510.)

This case has been approved and followed in In re Dawson, 20 Idaho 178, 190, 117 P. 696, 35 L. R. A., N. S., 1146, and State v. Neil, 58 Idaho 359, 365, 74 P.2d 586.

A marked distinction is to be noted between the civil and criminal procedure as specified by section 19-1611, supra, and section 5-611, I. C. A. Furthermore the criminal complaint ^[3] was substantially in the language of the statute, which states the essential elements of the crime, hence sufficient. (People v. Russell, 156 Cal. 450, 105 P. 416; 31 C. J. 703; State v. Montgomery, 48 Idaho 760, 766, 285 P. 467; State v. George, 44 Idaho 173, 176, 258 P. 551; State v. McMahon, 37 Idaho 737, 219 P. 603; State v. Johnson, 54 Idaho 431, 32 P.2d 1023; State v. Huff, 56 Idaho 652, 656, 57 P.2d 1080.)

Appellant's assignment of error that Exhibit "C," a transcript of the proceedings in the justice court was admitted in evidence to his prejudice is groundless because it was not admitted, the trial court sustaining his objection thereto.

Exhibit "F," a certified copy of the justice court docket in this case was admitted in evidence, but its admission is not assigned as error, the assignment going only to Exhibit "C":

"VIII.

"The court erred in admitting in...