State v. Zumwalt

• Decision Date: 08 December 1955
• Docket Number: No. 9345,9345
• Citation: 291 P.2d 257,129 Mont. 529
• Parties: STATE of Montana, Plaintiff and Respondent, v. James R. ZUMWALT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 257

291 P.2d 257

129 Mont. 529

STATE of Montana, Plaintiff and Respondent, v. James R. ZUMWALT, Defendant and Appellant.

No. 9345.

Supreme Court of Montana.

Dec. 8, 1955.

Myles J. Thomas, Helena, for appellant.

Arnold H. Olsen, Atty. Gen., C. W. Leaphart, Jr., Asst. Atty. Gen., Jay M. Kurtz, County Atty., Missoula, argued orally, for respondent.

DAVIS, Justice.

On July 1, 1952, the district court for Missoula County, Honorable C. E. Comer, Judge, sentenced the relator Zumwalt to seven years in the Montana State Prison upon his plea of guilty to an information, which assumed at least to charge the crime of 'Passing a False and Worthless Check,' a felony. Subsequently a hearing, which began on January 16, 1953, or thereabouts, and continued intermittently for some two weeks, was had in the district court upon a proceeding initiated by Zumwalt in the nature of the common law writ of error coram nobis to inquire into certain errors alleged by him to have occurred in the course of his prosecution there. Because of these errors it was urged the judgment of conviction should be set aside. Evidently the court below concluded otherwise, because after the hearing had, at which Zumwalt was present in person and represented by counsel, the writ was by judgment or order of date January 30, 1953, denied.

No appeal was taken or attempted, so far as this record shows, from this disposition of the case in the lower court. Rather on December 1, 1954, Zumwalt sued his writ out of this court upon the grounds, in brief, that his application or motion in the district court had been improperly denied, that he had in fact been deprived of his constitutional rights in the course of the prosecution, which resulted in his sentence below and consequent imprisonment, and that the judgment of conviction against him had been arbitrarily and unjustly entered under the wrong statute. He prayed our review.

Accordingly an alternative writ went down, commanding the respondents to show cause at a time specified why the challenged judgment 'should not be set aside, vacated and annulled and the said relator James R. Zumwalt be again arraigned on said information.'

To this writ the respondent court and judge have made return in no manner known to our law; but they are undoubtedly to be excused, because our writ is in itself not only novel but unknown to our practice or procedure heretofore. Yet in the view which we take of the matter the return before us, such as it is, is not material. The attorney general has interposed to the writ a motion to quash; to the petition, a demurrer; both on the ground among others that this court is without jurisdiction in the matter. His convincing brief leaves no other conclusion possible. We may not therefore reach the merits of the case with which the district court was concerned and upon which the dissent in this court touches.

Initially we note that it is not of importance whether the proceeding in the district court be denominated a motion, a petition for a writ of error coram nobis, or by some other equally mysterious title. For it ended in (1) an order or (2) a final judgment denying Zumwalt the relief he asked.

Nor is it here of importance either whether the proceeding below be construed (a) as a civil action brought after the fashion of the common law writ of error coram nobis to annul the challenged judgment of conviction, People v. Dabbs, 372 Ill. 160, 165, 166, 23 N.E.2d 343; Quinn v. State, 209 Ind. 316, 319, 198 N.E. 70; State v. Ray, 111 Kan. 350, 351, 207 P. 192; Newcomb v. State, 129 Neb. 69, 73, 74, 261 N.W. 348; Carman v. State, 208 Ind. 297, 311, 196 N.E. 78; Elliott v. Commonwealth, 292 Ky. 614, 620, 167 S.W.2d 703; Jones v. Dowd, 7 Cir., 128 F.2d 331, 333; Jones v. Squier, 9 Cir., 195 F.2d 179, 180, or (b) as a motion made in the criminal case itself to vacate that judgment, In re Paiva, 31 Cal.2d 503, 509, 510, 190 P.2d 604.

In either case the judgment or order entered might have been brought here by appeal for review consistent with our controlling statutes.

That is, if the denial below of Zumwalt's prayer for relief be a final judgment in a civil action or special proceeding commenced in the district court, then by statute, R.C.M.1947, Sec. 93-8003, subd. 1, he was given his appeal to this court within six months after the entry of that judgment, R.C.M.1947, Sec. 93-8004, subd. 1. On the other hand, if the rule below be an order, then Zumwalt had his appeal likewise to this court as from an order made after judgment of conviction in the criminal case which affected his substantial rights, R.C.M.1947, Sec. 94-8103, subd. 3, to be taken by him within sixty days, R.C.M.1947, Sec. 94-8105. The remedy by appeal given here was both direct and adequate. There is accordingly neither need nor excuse for resort to the extraordinary writ now before us.

But the inquiry, which confronts us, reaches further than any question of the adequacy or inadequacy of Zumwalt's remedy by appeal. The question really for decision is rightly put by the attorney general: Do we have jurisdiction in this proceeding to review the action of the respondent court and judge?

The answer returned by the attorney general is as conclusive as his argument is sound.

The writ issued by this court in this proceeding, whatever its name, is revisory in its purpose and appellate in its command; as much was conceded at the bar upon the oral argument.

Our power then to take appellate jurisdiction and review the case brought here pursuant to that writ stems from the Constitution of this state, Art. VIII, Secs. 1, 2, 3 and 15; or we do not have that power at all. Yet the grant there to us of appellate jurisdiction is in every instance circumscribed by the mandate as well as the prohibition of our Constitution, Mont.Const., Art. III, Sec. 29, that it be exercised 'under such regulations and limitations as may be prescribed by law', Art. VIII, Sec. 2, or 'subject, however, to such limitations and regulations as may be prescribed by law', Art. VIII, Sec. 3, or 'under such regulations as may be prescribed by law'. Art. VIII, Sec. 15.

In State ex rel. Clark and Owens v. District Court, Mont., 278 P.2d 1000, 1001, and as recently as January 20, 1955, we adhered to the rule in a civil case that the party aggrieved who would appeal must comply with the statutes which limit as well as regulate his right of appeal to this court. Otherwise we said he would not be heard here. The following excerpt from our opinion in that case is peculiarly pertinent to Zumwalt's appeal now before us: 'The right of appeal though guaranteed under the Constitution may be exercised only in obedience to the statutory regulations applicable.'

Neither Zumwalt nor his lawyer obeyed in any particular the statutes of this state by which the legislature had constitutionally defined the limits of his right to appeal to this court for the review he asks of us.

In the Owens case our opinion continued: 'Under the written law contained in the Constitution and statutes of Montana the defendants may not ignore and by-pass the statutes governing appeals and, in the absence of the taking of any appeal and by merely petitioning therefor, invest the supreme court with the requisite jurisdiction to review, set aside and annul District Judge Fall's order refusing to dissolve the attachment so issued out of the district court.'

In the instant case, although the petitioner Zumwalt was present in person at the hearing in the district court, and was there represented by counsel, no appeal was taken or attempted consistent with our Constitution and Code of Criminal Procedure from the court's order or judgment with which that hearing was closed. This we emphasize; for as we ruled in the Owens case jurisdiction of an appeal can not be vested in this court merely by filing a petition with us. We take jurisdiction in the case of a criminal appeal only in obedience to the applicable statutes which define and limit both our jurisdiction and the defendant's right to be heard.

It may be that where the legislature has not spelled out the regulations and limitations, which are to bound our jurisdiction, we may act consistent with our own concept of the authority given this court by the Constitution. See State ex rel. Whiteside v. District Court, 24 Mont. 539, 563-564, 63 P. 395; State ex rel. Regis v. District Court, 102 Mont. 74, 77, 55 P.2d 1295. It is undoubtedly true also that if the case is exigent, this court may act to meet the emergency, even though the legislature has prescribed regulations adequate to review the ordinary case by appeal, i. e., by framing and issuing its own original writ to fit the case. State ex rel. Whiteside v. District Court, supra, 24 Mont. at pages 562, 563, 63 P. at pages 339, 340. With these rules there is no quarrel.

Were we shown that Zumwalt's case was exigent as for example that although innocent of any crime he was nevertheless arbitrarily sentenced and wrongfully imprisoned under that sentence, as is the suggestion made in the dissenting opinion of Mr. Justice Bottomly, and if then the existing remedies by appeal as prescribed by our statutes and as well the usual writs to which this court customarily turns to prevent an injustice were found in truth inadequate, certainly we would not hesitate consistent with State ex rel. Whiteside v. District Court, supra, to design a further remedial writ out of this court that we might meet the emergency and attain the ends of justice, otherwise denied.

We think, however, we have no such case here. The suggestion that Zumwalt has committed no crime is in our view wholly erroneous. If we are to inquire into the purpose of the latter part of section 94-2702, R.C.M.1947, with which the dissenting opinion concerns itself, it is our opinion that this statute has to do only with the evidence which is sufficient to make out a prima facie case of intent to defraud. Again, if we are to consider...