State v. Stafford

• Decision Date: 21 October 1914
• Citation: 26 Idaho 381,143 P. 528
• Parties: STATE, Appellant, v. L. STAFFORD, Respondent
• Court: Idaho Supreme Court

143 P. 528

26 Idaho 381

STATE, Appellant, v. L. STAFFORD, Respondent

Supreme Court of Idaho

October 21, 1914

CRIMINAL LAW-APPEAL ON BEHALF OF STATE-MOTION TO DISMISS-PROBATE COURT - COMPLAINT - INFORMATION - STATUTORY CONSTRUCTION.

1. Where a defendant is tried in the probate court for selling intoxicating liquors without a license, under the provisions of sec. 1518, chap. 33, title 8, of the Rev. Codes, and is convicted and appeals to the district court, held, that the district court erred in dismissing said action on the motion of the defendant, on the ground that the probate court had no jurisdiction to try such case but should have held a preliminary examination.

2. Held, that the misdemeanor for which the defendant was tried and convicted in the probate court was not the crime of selling liquor in a prohibition district, since the defendant was not charged in the complaint filed in said action with selling intoxicating liquors in a prohibition district, but was charged with selling liquor without first procuring the license required by law.

3. Under the provisions of the first subdivision of sec. 8043 Rev. Codes, the state is authorized to take an appeal from a judgment for the defendant on demurrer to the indictment or information.

4. Under the provisions of sec. 8325, Rev. Codes, when an appeal is taken from a justice's or probate court, the clerk of the district court must file the papers received and enter the action on the calendar in its order with other criminal cases, and such case must be tried anew in the district court at the next term thereof, unless for good cause the same is continued.

5. When a criminal case is appealed from a probate court, the case stands on appeal the same as though it had been begun in the district court. It is there for a new trial on every point in question that could legally be raised therein.

6. Under the provisions of sec. 7509, Rev. Codes, a complaint or information is defined as an allegation in writing made to a magistrate that a person has been guilty of some designated offense.

7. The complaint or information is the name of the pleading by which a criminal action is instituted in a justice's or probate court, and the names "complaint" and "information" are used interchangeably and refer to the same kind of a pleading.

8. On an appeal from the probate court to the district court in a criminal case, the proceedings in the trial de novo is substantially the same as in a case before the district court on indictment or information.

9. Held, under the provisions of the statute, the state has the authority to appeal in a case on appeal from the probate court in criminal cases, where the appeal is dismissed on the demurrer or motion of the defendant, on the ground that the probate court had no jurisdiction to try said case.

10. Held, that the misdemeanor for which the defendant was convicted in the probate court was one which the probate court had jurisdiction to try, to wit, that of selling liquor without a license, and was not a misdemeanor which required the probate court to hold a preliminary examination, and the defendant could not have been convicted of the misdemeanor of selling liquor in a prohibition district under the complaint filed in this case.

APPEAL on behalf of the state from the District Court of the Second Judicial District for Latah County. Hon. Edgar C. Steele Judge.

Defendant was convicted in the probate court of selling intoxicating liquor without a license, and on appeal the district court held that the probate court should have held a preliminary examination in said matter, and on motion of the defendant dismissed the action. Judgment reversed.

Reversed and remanded.

J. H Peterson, Atty. Genl., J. J. Guheen, T. C. Coffin and E. G. Davis, Assts., for the State.

Sec. 8325, which has to do with appeals from the justice court to the district court in criminal matters, provides that when the appeal papers have been filed in the district court, the clerk must enter the action on his calendar in its order with other criminal cases, and that the same shall be there tried anew. The appeal having been properly effected, the case was in the same situation as one originally instituted in the district court.

"On appeal to the circuit court, the cause was triable de novo, and no objection could be made to any inaccuracy or imperfection in the proceedings before the county court." (Tatum v. State, 66 Ala. 465.)

Other states have had occasion to obtain from their supreme courts a definition of the word "information" as it affected litigants, and to ask for a determination of the pleadings covered by the term. (State v. Hewlett, 124 Ala. 471, 27 So. 18.)

Upon a trial de novo in the district court, the complaint takes the place of an indictment or an information. The proceedings had upon it are the same in the district court as upon either an indictment or an information. (Clepper v. State, 4 Tex. 242; Simpson v. State, 111 Ala. 6, 20 So. 572.)

There is no law prohibiting the issuance of a license to sell intoxicating liquors in Latah county, and therefore any person selling liquors in Latah county without a license can be convicted and punished under the terms of sec. 1518, Rev. Codes.

There will be found in many states laws providing for the issuance of licenses to people engaged in selling liquors and providing penalties for the sale of liquor without a license. These same states also have laws making it a crime to sell liquor on Sunday, either with or without a license.

The courts, however, have been uniform in holding that a charge of selling liquor without a license, even though the sale took place on Sunday, was proper. (State v. Cox, 23 W.Va. 797; State v. Bradley, 132 N.C. 1060, 44 S.E. 122; State v. Heibel, 116 Mo.App. 43, 90 S.W. 758; Shuler v. State, 125 Ga. 778, 54 S.E. 689; O'Brien v. State, 91 Ala. 25, 8 So. 560; People v. Krank, 110 N.Y. 488, 18 N.E. 242, 23 Cyc. 187; State v. Moeling, 129 La. 204, 55 So. 764; Carpenter v. State, 120 Tenn. 586, 113 S.W. 1042.)

Cannon, Ferris & Swan and Wm. E. Lee, for Respondent.

There having been no indictment or information at any time entered against respondent, it is apparent that this court has no jurisdiction to try the appeal. (State v. Ridenbaugh, 5 Idaho 710, 51 P. 750; United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445; State v. Northrup, 13 Mont. 522, 35 P. 228; Territory v. Laun, 8 Mont. 322, 20 P. 652.)

Under sec. 3854. Rev. Codes, the justice court has no jurisdiction in a case like the one at bar, where a misdemeanor is alleged to have been charged for which the maximum penalty exceeds $ 300. (State v. West, 20 Idaho 387, 118 P. 773.)

The respondent was never indicted for any crime by a grand jury. His case did not come before the district court on information from the public prosecutor after indictment by a magistrate. He had no preliminary examination. The district court had no jurisdiction, therefore, over respondent. No information could have been filed against respondent until he had had a preliminary examination. (State v. McGreevey, 17 Idaho 453, 105 P. 1047; State v. Raaf, 16 Idaho 411, 101 P. 747.)

SULLIVAN, C. J. Truitt, J., concurs.

OPINION

SULLIVAN, C. J.

The defendant was prosecuted and convicted in the probate court of Latah county for having sold intoxicating liquors without first obtaining the license required by the provisions of chap. 33, title 8, of the Revised Codes. The charging part of the complaint is as follows: "Did then and there, wilfully, knowingly and unlawfully, sell to C. Douglas, then and there being, a quantity of intoxicating liquor, to wit, beer, without first having obtained and procured the license, and executed and filed the bond required by the State of Idaho and in violation of chap. 33, title 8, of the Revised Codes of Idaho," etc.

To that complaint the defendant demurred on the ground and for the reason that the facts stated in the complaint did not constitute a public offense. The demurrer was overruled and the defendant was convicted of said offense and fined in the sum of $ 250 and costs. The defendant thereupon appealed to the district court, and when the case was called for hearing, the defendant made a motion to dismiss it on the ground and for the reason that the probate court had no jurisdiction to try and determine such cause, which motion was sustained and the action dismissed and judgment of dismissal entered. The state appealed from said judgment.

(1) In limine, we are met with a motion by the defendant to dismiss this appeal on the ground that the probate court of Latah county did not have jurisdiction to try and determine said action. On that motion it was contended that the crime for which the defendant was prosecuted was for selling liquor in Latah county, a prohibition district. (The complaint contradicts this contention.) It was contended that Latah county became a prohibition district because of the provisions of sec. 7, of an act of the legislature, approved February 19, 1913 (Sess Laws, p. 127), which section declares that a "'Prohibition District' within the meaning of this act and all other acts prohibiting the sale of intoxicating liquors in any prohibition district in this state, is territory in which the sale of intoxicating liquor is prohibited by law, or where no liquor license has been issued in accordance with the laws of this state." Latah county did not become a prohibition district by a vote of the people, but the county commissioners of that county had refused to issue any liquor licenses whatever, and when this case was appealed to the district court, it seems that counsel for the defendant concluded to contend that the defendant had been prosecuted for selling liquor...