State v. Smith

• Citation: 12 Mont. 378
• Parties: STATE v. SMITH.
• Decision Date: 25 July 1892
• Court: United States State Supreme Court of Montana

12 Mont. 378

STATE
v.
SMITH.

Supreme Court of Montana.

July 25, 1892.

Appeal from district court, Gallatin county; FRANK K. ARMSTRONG, Judge.

Samuel S. Smith was convicted of assault with intent to kill, and appeals. Affirmed.

E. P. Cadwell and Toole & Wallace, for appellant.

Henri J. Haskell, Atty. Gen., and Jas. R. Goss, Co. Atty., for the State.

BLAKE, C. J.

The defendant was convicted of the crime of assault with the intent to commit murder. A complaint was filed July 27, 1891, in the justice's court of Yellowstone county; and the magistrate, after hearing the evidence, adjudged, August 6, 1891, that there was probable cause for believing Smith guilty, and ordered that he be held to answer the charge at the next term of the district court. The complaint and other papers in the action in the justice's court were filed August 16, 1891, in the district court of Yellowstone county. The county attorney filed, October 15, 1891, an information in the presence of and by the order of said district court. Leave was given, October 31, 1891, to the county attorney, to have the names of some witnesses indorsed upon the information; and on the same day, upon the motion of defendant, the place of trial was changed to Gallatin county. The defendant entered January 21, 1892, his plea of not guilty. The jury returned a verdict of guilty, and the defendant filed a motion in arrest of the judgment, upon this ground: “That the prosecuting attorney of Yellowstone county, Montana, to-wit, J. R. Goss, had no right or legal authority to file and make the information in this cause, upon which he was tried; *** and that the information on which the defendant was tried was not made and filed until October 16, 1891, more than 30 days elapsing between the return of the said complaint and papers to said district court of Yellowstone county, Mont., and the filing of said complaint.” This motion was overruled, and we will review this action of the court. The statute which governs the subject contains this clause: “When the defendant has been examined and committed or admitted to bail, as provided by law, or upon leave of court, the county attorney must, within thirty days after the delivery of the complaint and other papers to the proper district court, or after such leave, file in such court an information charging the defendant with the offense for which he is held to answer, or with which he is charged, or any other offense by the facts disclosed.” 2 Sess. Laws, p. 249, § 2. It is further enacted that all the provisions of the law regulating prosecutions upon indictments shall apply “in the same manner, and to the same extent and effect, as near as may be,” to proceedings by information. Id. p. 250, § 4.

Let us consider the provisions of the criminal practice act which are pertinent to this inquiry. A motion in arrest of the judgment may be granted for the following causes: “That the grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; *** that the facts stated do not constitute a public offense.” Comp. St. div. 3, § 357. It is uniformly held that this motion must rest upon these statutory grounds, and it is apparent that the court acted rightly thereon. The defendant did not resort to the appropriate remedy for the failure of the county attorney to comply with the statute. When the defendant was arraigned, the statute authorized him to move to set the information aside, or demur or plead thereto. Id. § 205. The information “shall be set aside” when it has not been presented as prescribed by law. Id. § 206. If the motion to set aside be not made before the defendant demurs or pleads, the ground of objection to the information, which might have been thereby made, “shall be deemed waived.” Id. § 208. The importance of this statutory requirement is obvious. If the motion be granted, the court may direct a resubmission of the case. Id. § 210. Every question of this nature should be pointed out before the trial. It was held in Territory v. Hart, 7 Mont. 55, 14 Pac. Rep. 768, that a defendant who failed to make this motion for the cause that 12 grand jurors did not concur in finding the indictment, before he demurred or pleaded thereto, waived his objections to the indictment. A defendant has the right to insist upon an examination “before he can be put upon his trial, or called upon to answer the information,” in Michigan. Mr. Justice CHRISTIANCY, in Washburn v. People, 10 Mich. 383, said: “It is not a matter which goes to the merits of the trial, but to regularity of the previous proceedings. If he make no objection on the ground that such examination has not been had or waived, he must be understood to admit that it has been had, or that he has waived or now intends to waive it. If he intends to insist upon the want of the examination, we think he should, by plea in abatement, set up the fact that it has not been...