State v. Smith

• Decision Date: 25 July 1892
• Parties: STATE v. SMITH.
• Court: Montana Supreme Court

30 P. 679

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 P. 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 had, upon which the prosecuting attorney might take issue, or reply a waiver; or he must, upon a proper showing by affidavit, move to quash the information. The latter is the simpler course." Hamilton v. People, 29 Mich. 177; People v. Stacey, 34 Cal. 307; State v. Collyer, 17 Nev. 279.

The appellant did not enter his plea to the information until the district court of Gallatin county had acquired jurisdiction of the case. Another section of the criminal practice act should be examined: "All questions concerning the regularity of proceedings, and the rights of the court to which the change is made to try the cause and execute judgment, shall be considered as waived after trial and verdict." Comp. St. div. 3, § 233. We think that one clause of the act concerning the information has escaped the attention of the appellant: "All criminal actions in the district court, except those on appeal, shall be prosecuted by information, after examination and commitment by a magistrate, or after leave granted by the court, or shall be prosecuted by indictment without any such examination or commitment, or without such leave of the court." 2 Sess. Laws, p. 248, § 1. When this language is read in connection with the section supra, it is evident that the information can be filed within 30 days after the granting of leave therefor by the court, independent of the time when the examination took place. The statute has been strictly complied with, and there is no merit in the argument that the court did not have jurisdiction of the case.

A brief statement of the facts will aid us in presenting the other rulings of which appellant complains. Frank Church was the road supervisor of the district in which the land of said Smith is situate, and as such officer received the following order: "Office of the Clerk & Recorder, Yellowstone County, Mont. Billings, Montana, March 11th, 1891. Mr. Frank Church, Road Supervisor, District No. 4, Billings, Montana--Dear Sir: You are hereby directed, from, on, and after May thirteenth, (13,) 1891, to open and work the following described county road, to wit: [Description of road.] By order of the board of county commissioners of Yellowstone county, Montana. Witness my hand, and the seal of said county, this 11th day of March, 1891. FRED H. FOSTER, County Clerk. [Seal.]" It is maintained by appellant that the admission in evidence of this order is an error.

Upon the trial Church testified that he was proceeding, July 27 1891, to open the road through the land of defendant by virtue of the foregoing order of the county commissioners, and saw defendant "walking fast" towards his house, and then he "came running out of the house with a Winchester rifle in his hand, and as he came along he motioned to some one, and he spoke twice, and said, 'Get out of there,' and motioned towards where I was, and towards where Mr. Ramsey and Mr. Terrill were. He stopped twice, and then came on again. The sheriff came on behind on a run. During the times he stopped he was about half way to the house from where I was. I had been working all the time. Each time he stopped he raised his gun. I was looking at him at the time, and was tearing the wire off a cedar post. I was on the outside of the fence, and as he raised his gun I jumped over a pile of plank. I had not got down behind it when he shot. He shot towards me. It was the way his gun was directed. At the time the shot was fired there was something hit me in the face, and something whizzed past my face, and afterwards, when I went to work on that road, I found the post which the bullet went through." The witness also testified he had had several conversations with the defendant before this time. "The first I had with him of any account was on the 13th day of March, 1891. I was opening the road, and expected to open the fence the full length; that is, I commenced that. I calculated to open it that day. When I came to Mr. Smith's fence he came out and told me I could not go through there,--go through his ranch. I said, 'I have got an order in my pocket from the board of county commissioners to open the road through here.' But he had a Winchester rifle. He came there with it. I took it to be this same one. He said he came out there to keep me from going through. He said he would not let them put a road through there. I told him I did not come prepared to fight my way through, but was instructed to report to the officers if I had trouble. I told him that his saying I could not go through would not keep me from going through. *** The next time I had a conversation with him was between that time and this. I had two or three. I built some bridges near his place, and he was out there. He told me all along that I would never get through there; that he was not going to have it through there. I...