State v. Weir

• Decision Date: 04 August 1925
• Citation: 41 Idaho 345,238 P. 1029
• Parties: STATE, Respondent, v. ART WEIR, Appellant
• Court: Idaho Supreme Court

238 P. 1029

41 Idaho 345

STATE, Respondent, v. ART WEIR, Appellant

Supreme Court of Idaho

August 4, 1925

MOTION TO QUASH-PRELIMINARY EAMINATION-CERTIFICATE TO DEPOSITIONS.

A motion to quash an information on the ground that depositions taken at the preliminary examination were not certified to by the county stenographer is properly denied where it appeared that the person who made the certificate had theretofore been appointed under the name of Minnie Wiberg but had subsequently married and signed the certificate as Mrs. Hugh Kenworthy.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County.Hon. Herman H. Taylor, Judge.

Judgment of conviction of possessing intoxicating liquor.Affirmed.

Affirmed.Petition for rehearing denied.

R. B Norris, for Appellant.

The provisions of the statute in relation to preliminary hearings are mandatory and must be complied with.(State v Braithwait,3 Idaho 119, 27 P. 731;State v. Yturaspe,22 Idaho 360, 125 P. 802;State v. Carlson,23 Idaho 545, 130 P. 463.)

A. H. Conner, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.

A substantial compliance with the provisions of the statute in relation to preliminary hearings is sufficient.(State v. Yturaspe, 22 Idaho 360, 125 P. 802.)

The certificate of the county stenographer takes the place of the certificate of the magistrate as to the correctness of the evidence.(State v. Carlson,23 Idaho 545, 130 P. 463.)

The court must disregard technical errors or defects unless they actually prejudice the defendant or tend to his prejudice in respect to a substantial right.(C. S., secs. 9084 and 9191, State v. Marren,17 Idaho 766, 107 P. 993;State v. Dong Sing,35 Idaho 616, 208 P. 860.)

WM.E. LEE, J. William A. Lee, C. J., and Budge and Givens, JJ., concur.Taylor, J., took no part.

OPINION

WM.E. LEE, J.

--Appellant was convicted of having in his possession intoxicating liquors.As a result of a preliminary examination he was ordered held to answer in the district court.An information was filed against him, to which he entered a plea of not guilty, and was found guilty.Prior to the entry of his plea in the district courtappellant moved to set aside the information on the ground that the depositions taken in the preliminary examination were not certified to as required by law.

Among other things, it is provided by C. S., sec. 8754, that:

"The testimony must either be reduced to writing by the magistrate or under his direction or be taken in shorthand by a stenographer and transcribed . . . .If the deposition is taken by a stenographer in shorthand it shall be transcribed by him and certified to as true and correct; and unless certified by the county stenographer, the deposition must also be signed and certified by the magistrate."

The attorney for appellant presented an affidavit by himself to the effect that he had searched "the records" and finds that "Mrs. Hugh Kenworthy is not now and never has been appointed a county or public stenographer . . . . but that the position is held by another person."

The county attorney filed his affidavit which states:

"That on the 10th day of April, A.D. 1924, he hired Minnie Wiberg to do the stenographic work of the Prosecuting Attorney's office and to act as County Stenographer; that ever since said time said Minnie Wiberg has performed the duties of stenographer for County Attorney and the other duties of stenographer; and that she has drawn pay for her work from said Benewah County; that since she entered the employ of said County said Minnie Wiberg has married and her name is now Mrs. Hugh...