State v. Wilson

• Decision Date: 11 November 1925
• Citation: 242 P. 787,41 Idaho 598
• Parties: STATE, Respondent, v. C. J. WILSON, Appellant
• Court: Idaho Supreme Court

242 P. 787

41 Idaho 598

STATE, Respondent, v. C. J. WILSON, Appellant

Supreme Court of Idaho

November 11, 1925

CRIMINAL LAW-FALSE REPORT OF CONDITION OF BANK-INTENT TO DECEIVE-BILL OF EXCEPTIONS-ACQUITTAL-INFORMATION-GRAND JURY-IGNORING CHARGE.

1. In a prosecution of a bank officer for knowingly making a false report of the condition of his bank under the last division of C. S., sec. 5276, it is not necessary to allege in the information or to prove that such report was made with the intent to deceive.

2. In order to obtain a review by this court of an order refusing to quash an information the matter should be presented by a special bill of exceptions as required by C. S., sec. 9010.

3. The ignoring of a charge against an appellant by a grand jury is not an acquittal of such charge.

4. On a trial, on a plea of "not guilty," proffered testimony that the charge contained in the information had been ignored by a grand jury prior to the filing of the information is properly rejected.

APPEAL from the District Court, for Lincoln County. Hon. B. S Varian, Judge.

Appellant was convicted of having made a false report of the condition of the Declo State Bank to the Commissioner of Commerce and Industry. Affirmed.

Affirmed.

Harlan D. Heist and Harmon E. Hosier, for Appellant.

The doctrine of res judicata is not applicable to motions in a pending action. (Johnston v. Brown, 115 Cal. 694, 47 P. 686; Ford v. Doyle, 44 Cal. 635.)

An issue of fact was raised by the defendant's plea of former acquittal and not guilty. (C. S., sec. 8903.)

"Issues of fact must be tried by jury." (C. S., sec. 8904; State v. Crawford, 32 Idaho 165, 179 P. 511; State v. Gutke, 25 Idaho 737, 139 P. 346; People v. Tucker, 115 Cal. 337, 47 P. 111; Bonham v. State, 6 Okla. Cr. 227, 118 P. 159.)

The only mode in which the defendant could avail himself of the bar would be to plead and prove it as a defense, and the question of identity of a charge can only be determined by a jury. (Terrill v. Supreme Court of Santa Clara Co., 127 Cal. xviii, 60 P. 38; State v. Towers, 37 Nev 94, Ann. Cas. 1916D, 269, 139 P. 776; Ex parte Hayter, 16 Cal.App. 211, 116 P. 370.)

There is no doubt about the offer of proof raising a jurisdictional question. (In re Winn, 28 Idaho 461, 154 P. 497; State v. Crook, 16 Utah 212, 51 P. 1091.)

"In a criminal case the party does not waive his rights by not insisting upon them, and, if the court has no jurisdiction by law to try the case, it is not cured by the party failing to claim his right to be dismissed." (People v DuRell, 1 Idaho 44.)

"The objection that the court is not a legal court, or that it has no jurisdiction of the offense, cannot be waived, and may therefore be taken at any time." (16 C. J. 184; State v. McNally, 23 Utah 277, 64 P. 765; State v. Morrey, 23 Utah 273, 64 P. 764; State v. Goodall, 82 Ore. 329, 160 P. 595.)

"Where a court is without jurisdiction in the premises, its acts and proceedings can be of no force or validity." (15 C. J. 851, 852, 853.)

When a jurisdictional question is raised the only way that the same can be determined by the court is by inquiry. The method of inquiry is immaterial. (Radil v. Sawyer, 85 Neb. 235, 122 N.W. 980; Perry v. Griefen, 99 Me. 420, 59 A. 601.)

A court must, as an incident to its general power to administer justice, have authority to consider its own right to hear a cause; but its assumption of authority to proceed in a cause does not confer jurisdiction where it does not exist. (Brougham v. Oceanic Steam Nav. Co., 205 F. 857; Evans v. Christian, 4 Ore. 375.)

"The question of jurisdiction is primary and fundamental in every case, and cannot be waived by the parties or overlooked by the court." (Apache State Bank v. Vioght, 61 Okla. 253, 161 P. 214; Mansfield C. & L. M. R. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462; Morris v. Gilmer, 129 U.S. 315, 9 S.Ct. 289, 32 L.Ed. 690.)

The defendant here offered evidence to show that the court had no jurisdiction in the matter. The court refused to accept the evidence going to its own jurisdiction. That evidence should have been admitted to show that the court was without jurisdiction to try the matter. (Territory v. Lobato, L. R. A. 1917A, 1226, note.)

A. H. Conner, Attorney General, John W. Cramer, Sam Blaine and James L. Boone, Assistants, for Respondent.

In order to review the action of the trial court in denying a motion to quash, the action of the trial court must be incorporated in a special bill of exceptions. (C. S., secs. 9008, 9010.)

The alleged ignoring of a charge by a grand jury is not a former acquittal, and a plea of former acquittal based on such purported action of the grand jury is not recognized in this state. (C. S., secs. 8879, 8880, 8884, 8885.)

An exception must be saved to the ruling of the trial court on the refusal to admit certain testimony. (C. S., sec. 9006.)

It is not necessary for the state to prove, where a defendant is charged with making a false report under the provisions of C. S., sec. 5276, that the report is made with the attempt and intent to deceive the department of finance of the state of Idaho. (State v. Waterman, 36 Idaho 259, 210 P. 208.)

It is clearly the law in this state, as laid down in State v. Hinckley, 4 Idaho 490, 42 P. 510, that where the procedure is prescribed for taking advantage of a defect, that procedure must be followed.

DUNN, C. J., WM. E. LEE, J. Givens and Taylor, JJ., concur, BUDGE, J., Specially Concurring. WILLIAM A. LEE, C. J., Concurring in Part and Dissenting in Part.

OPINION

DUNN, C. J.

Appellant was convicted of having made a false report of the condition of the Declo State Bank on or about the fourth day of May, 1920, to the Commissioner of Commerce and Industry pursuant to a call made for a statement of the condition of said bank on that day and was sentenced to serve not less than six months nor more than two years in the state penitentiary. This appeal is from the judgment.

"Appellant makes ten assignments of error which, for the purpose of argument, he has incorporated into seven propositions.

"As his first proposition appellant urges that the court erred in refusing to grant his motion to quash the information. This matter is not properly before us for the reason that the action of the trial court was not incorporated in a special bill of exceptions as required by C. S., sec. 9010. (State v. Maguire, 31 Idaho 24 169 P. 175; State v. Moodie, 35 Idaho 574, 207 P. 1073; State v. Cosler, 39 Idaho 519, 228 P. 277; State v. Petereit, 39 Idaho 715, 229 P. 747.)

"The second proposition relates to the special plea which appellant entered and which reads as follows:

"'Defendant pleads that he has been acquitted of the charge made in this action by reason of the fact that the Grand Jury for Cassia County, met on April 3rd, 1922, and after investigating this Defendant and the Declo State Bank, did ignore the charge now made against him by information of the Prosecuting Attorney for Cassia County and that filing such information is in violation of the rights of this Defendant as provided for in Section 8 of Article one of the Constitution of the State of Idaho.'

"While this was an attempt to plead a former acquittal of the offense charged, it falls short of the statutory requirements of such a plea. C. S., sec. 8880, subdivision 3, states what must be pleaded in case a defendant relies upon the plea of a former acquittal. It reads as follows:

"'§ 8880. Every plea must be oral, and entered upon the minutes of the court in substantially the following form: . . . .

"'3. If he pleads a former conviction or acquittal: "The defendant pleads that he has already been convicted (or acquitted) of the offense charged by the judgment of the court of (naming it) rendered at (naming the place), on the day of "'

"A comparison of this statutory provision with the plea entered shows that in fact appellant entered no plea of former acquittal, for he pleaded, not a judgment of a trial court, but a failure of a grand jury to indict. No action of a grand jury could acquit appellant in the statutory sense. Hence, even if the plea had been entered in proper form according to the requirements of C. S., sec. 8880, the action of the court in excluding the testimony of the prosecuting attorney and the foreman of the grand jury was correct, for their testimony in support of the proceedings before the grand jury as set out by appellant would have no tendency whatever to prove or disprove the issue of former acquittal. Likewise the court committed no error in refusing to give defendant's requested instruction No. 6, which relates to the same special plea of former acquittal.

"Under the third proposition the appellant contends that the court erred in giving instruction No. 10, in which the court charged that it was not necessary for the plaintiff to prove or offer evidence of a specific intent or attempt to deceive. Appellant erroneously contends that this action is brought under the second subdivision of C. S., sec. 5276, because, as he claims, the language of the information follows that part of that section. An extended discussion of this point is rendered unnecessary, due to the holding in the recent case of State v. Waterman, 36 Idaho 259, 210 P. 208. The following language of the court in that case effectually disposes of this question:

"'It will be observed that the clause, "with the attempt to deceive any person or persons authorized to examine into the affairs of any such bank or trust company," is not used in connection with and does not apply to the third division of said section, which is the only part of said section that has reference to the making of such false report or statement of any bank or trust company as...