State v. Springer

• Decision Date: 27 December 1911
• Docket Number: 2239
• Citation: 40 Utah 471,121 P. 976
• Court: Utah Supreme Court
• Parties: STATE v. SPRINGER

121 P. 976

40 Utah 471

STATE v. SPRINGER

No. 2239

Supreme Court of Utah

December 27, 1911

Rehearing Denied March.

APPEAL from District Court, Fifth District; Hon. Joshua Greenwood Judge.

A. P Springer was convicted of adultery and appeals.

AFFIRMED.

A. C. Hatch for appellant.

A. R. Barnes, Attorney-General, and Geo. C. Buckle and E. V. Higgins, Assistant Attorneys-General, for the State.

FRICK, C. J. McCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

Appellant was convicted of the crime of adultery, which in this state is a felony. From the judgment, by which he was sentenced to a term at hard labor in the state prison, he appeals.

Before entering upon the trial, appellant with his plea of not guilty also interposed a plea of former acquittal. It is contended that the court erred in not submitting that plea to the jury to be passed on as a question of fact.

The plea is based upon the following proceedings, to wit: A complaint was filed before a justice of the peace of Juab County, Utah, charging appellant with the crime of adultery. A preliminary hearing was had upon such complaint, and appellant was held to answer to the district court of the county aforesaid. In due time the district attorney filed an information in the district court of said county, charging appellant with adultery, and for which, it was alleged in aside information, appellant had "been duly committed" to said court by a magistrate. To this information appellant filed certain objections in writing, entitled, "Motion to set aside information." The motion was based upon the following grounds:

"That it appears by the record of the justice's court of Eureka precinct, Juab County, State of Utah, duly filed in this court, which said record is hereby made a part of this motion, that the defendant herein has not at any time prior to the filing of this information had the legal and statutory right of a preliminary examination for the offense attempted to be set forth and charged in the said information, or for any offense at all; and that all proceedings at the pretended preliminary examination were and are illegal and void, and that the commitment herein to answer to this court is also illegal, null, and void. Wherefore the defendant prays this court that said information be set aside and quashed, and that he be ordered discharged."

This motion was filed on the 14th day of October, 1909. The record does not in terms disclose what disposition the district court made thereof, but the record does show that on the same day that the motion was filed a new complaint charging appellant with the same offense was filed before the judge of the district court of Juab County, before whom the motion was filed, and he, in accordance with our statute, entertained the new complaint while sitting as a magistrate and not as a district court. Appellant was again arrested upon a warrant duly issued upon said complaint, and he, when brought before said district judge sitting as a magistrate with the consent of the state, waived a preliminary examination upon the charge contained in the new complaint aforesaid. He was again held to answer to the district court of said county. The district attorney in due time filed an information based upon said new complaint and examination had thereon before said district judge sitting as a magistrate. To the last information filed as aforesaid appellant interposed a special demurrer, which, upon consideration by the district court, was sustained, and the district attorney, pursuant to Comp. Laws 1907, sec. 4783, was, by said district court, ordered to file an amended information covering the same offense, which was done. A trial was had upon said amended information, which resulted in a conviction, as before stated.

The plea of former acquittal, it seems, was based upon section 4783, supra, which reads as follows:

"If the demurrer is allowed, the judgment shall be final upon the information or indictment referred to, and shall be a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new information or indictment, directs that a new information be filed, or that the case be resubmitted to the same or another grand jury."

Counsel for appellant strenuously insists that the plea of former acquittal was well founded, and should have been submitted to the jury, for the reason that the motion to set aside the information, to which we have referred, was, in legal effect, a demurrer; that, because a new complaint charging appellant with the same offense had been filed before the judge sitting as a magistrate, it must be assumed that said motion was sustained by the district court of Juab county as a demurrer, and the information to which said motion was directed was held bad. It is contended, therefore, that in view that said motion was, in legal effect, a demurrer, and for the reason that the record does not affirmatively show that the district court made an order directing a new or amended information to be filed, the judgment sustaining the motion as a demurrer is final under section 4783, supra. It may be said, however, that, if we may assume that the court sustained said motion without an affirmative showing to that effect, we may also assume that in doing so the court made the necessary order with regard to the filing of another complaint. If to assume one of the foregoing facts is favorable to regularity, so is the other. In the event, therefore, that such an order was made, the filing of the information upon which the prosecution and conviction are based would be authorized and regular, even though it were held that the motion should be treated as a demurrer to the information.

We are, however, of the opinion that the motion should not be treated as a demurrer to the information. This is so for the reason that under section 4779 demurrers to informations or indictments can only be interposed when the defect appears "upon the face thereof." The defects set forth in the motion in question did not appear upon the face of the information to which the motion was directed. This is at once apparent from an inspection of the motion itself. Moreover, the motion was no doubt intended to be based upon section 4771, which provides that an information may be set aside (1) "when it fails to recite that the defendant had theretofore been duly committed by a magistrate; (2) when the names of the witnesses heard for the state at the examination are not indorsed thereon, and (3) when it is not signed by the proper attorney." The information in question did recite that appellant had been duly committed by a magistrate, but he nevertheless insisted, and, as we think, had the constitution right to insist, that he had not had the preliminary examination contemplated by article 1, sec. 13, of the Constitution of this state.

We are also of the opinion that the appellant was not conclusively bound by the recital referred to in the information filed against him, but that he could challenge that recital, and when the challenge was timely interposed, and when it was made to appear to the district court that the appellant had not had the preliminary examination contemplated by the Constitution, it was its duty to set aside or quash the information, and to direct that an opportunity to have a proper preliminary examination be given the appellant. This, we think, is the usual course pursued by the courts under statutory and constitutional provisions like ours.

In Nebraska, where the statutory provisions with regard to prosecutions by information after a preliminary examination are in substance like our own, it has repeatedly been held by the Supreme Court of that state that an objection that a defendant has not had a preliminary examination for the offense charged in the information filed against him is properly raised by a motion to quash the information. It is also held by that court that if the statement that the defendant had not had a preliminary examination is found to be true, and the motion is timely interposed, it should be sustained, the information quashed, and the proceedings stayed until the accused has been given a preliminary examination or an opportunity to waive the same as contemplated by law. (Davis v. State, 31 Neb. 247, 47 N.W. 854; Coffield v. State, 44 Neb. 417, 62 N.W. 875; and Dinsmore v. State, 61 Neb. 418, 85 N.W. 445.) While section 4771, supra, does not in terms authorize a motion worded like the one in question to be filed, it is, nevertheless, manifest from all the statutory provisions upon the subject of filing complaints and informations that the defendant at the proper time must be given an opportunity to insist upon and to enforce his constitutional rights with regard to being given a preliminary examination.

It is a universal rule of common law recognized by all courts of record for centuries that, where there is no statutory method nor a rule of court by which a defect in any proceeding may be called to the attention of the court, it may always be done by a motion, which, if necessary, may be supported by affidavit or other evidence. In this case it would seem that the state confessed the motion. At any rate the record does not show that it was contested. We think the motion to set aside the information was properly and timely interposed, but whether the ruling of the district court thereon, whatever it may have been, was right...