The People v. Buchanan
| Decision Date | 01 January 1878 |
| Citation | 1 Idaho 681 |
| Parties | The People, Respondents, v. Flora Buchanan, Appellant. |
| Court | Idaho Supreme Court |
INDICTMENT-CRIMINAL LAW-SURPLUSAGE.-If an indictment conclude with "contra formam statuti," and no statute exist concerning the offense charged, yet if the facts alleged constitute a common-law offense, and the same be charged with certainty the conclusion of the indictment will be treated as surplusage, and the indictment be held good.
JUDICIAL KNOWLEDGE-ORDINANCES.-Courts will not take judicial knowledge of city ordinances; they must be proved by the record, or by certified copies thereof.
INSTRUCTIONS.-If the defendant ask the court to give certain instructions prepared by him, and the same contain the law of the case but so mixed with erroneous matter that they are calculated to mislead the jury, it is not error for the court to refuse the whole.
APPEAL from the Second Judicial District, Ada County.
Alanson Smith and E. J. Curtis, for the Appellant. F. E. Ensign District Attorney, for the Respondents.
delivered the opinion,
HOLLISTER, C. J., concurring specially in the judgment. PRICKETT, J., concurred.
This cause comes to this court from the second judicial district of this territory for Ada county. The indictment herein was filed on the twenty-second day of March, 1877, and charges that the said "Flora Buchanan on the thirteenth day of January, 1877, and at divers other days and times between that day and the day of finding the indictment, in the county of Ada, and territory of Idaho, and within the corporate limits of Boise City-to wit, on Idaho street in said Boise City, willfully and unlawfully did keep a bawdy-house, then and there resorted to for the purpose of public prostitution and lewdness." On the 27th of March, 1877, a demurrer by said appellant was filed, setting forth as grounds of demurrer:
1. That the grand jury, by which the indictment was found, had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the court. That the court has no jurisdiction in this action, in this: that the indictment was drawn under, and by virtue of an act of the legislative assembly of Idaho territory, entitled "an act relating to houses of ill-fame in Boise City," approved January 12, 1877, which act gives power and authority to the mayor and common council of Boise City, Ada county, Idaho territory, to regulate, fix the location of, or abolish all bawdy-houses, houses of ill-fame, or houses kept for the purposes of prostitution within the limits of Boise City, did pass an ordinance, of which the following is a copy: "ORDINANCE No. 31.
ordinance, shall be fined in any sum not less than one hundred dollars, or imprisonment in the county jail not less than six months, or by both such fine and imprisonment, together with costs of suit.
That under said act and said ordinance, the city magistrate courts or justice of the peace courts, designated as such, alone have jurisdiction to try offenses committed in violation of said act and ordinance.
2. That it does not substantially conform to the requirements of sections 233 and 234.
3. That more than one offense has been charged in the indictment.
4. That the indictment is not direct, specific, and certain, and is not in the language of the act or ordinance above referred to.
5. That the facts stated do not constitute a public offense.
6. That the legislative assembly of the territory of Idaho had no power or authority to pass the act entitled "an act relating to houses of ill-fame in Boise City," approved January 12, 1877, under which the said indictment was drawn; that said act grants to Boise City a special charter or privilege, confers special powers and privileges not granted to all the cities of the same class within the territory; all of which is expressly prohibited by section 1889 of the Revised Statutes of the United States.
On the hearing the demurrer was overruled by the court.
Section 285 of the Criminal Practice Act provides as follows: "The defendant may demur to the indictment when it shall appear upon the face thereof either: 1. That the grand jury, by which it was found, had no legal authority to inquire into the offense charged by reason of its not being within the local jurisdiction of the court. 2. That it does not substantially conform to the requirements of sections 233 and 234. 3. That more than one offense has been charged in the indict-
ment. 4. That the facts stated do not constitute a public offense. 5. That the indictment contains any matter, which, if true, would constitute a legal justification or excuse of the offense charged, or other bar to the prosecution."
It is claimed in and by the first ground of demurrer that the court has no jurisdiction in this action, by reason of the act relating to houses of ill-fame in Boise City, approved January 12, 1877, which gives the power and authority to the mayor and common council of said city to regulate, fix the location of, or abolish, all bawdy-houses within the limits of Boise City, and also by reason of an alleged ordinance specified and set forth in said ground of demurrer, abolishing bawdy-houses within the limits of said city.
Courts will, judicially, take notice of the public and private acts of legislatures, and assume them to be true; such, however, is not the rule in regard to city ordinances; they must be proved either by the record, or by a certified copy thereof. (1 Greenl. on Ev. 484.) Hence, the ordinance might have been shown on the trial as evidence touching the jurisdiction of the court to hear and determine this action, but could not be considered on the determination of the demurrer.
The second ground of demurrer states that the indictment does not substantially conform to sections 233 and 234. Section 233 of the Criminal Practice Act is as follows:
An examination of the indictment discloses that it is entitled as follows: The indorsements on the indictment show: 1. The title of the action; next, indictment for misdemeanor. "A true bill. A. Rossi, foreman of the grand jury. Presented and filed in open court, in the
presence of the grand jury, March 22, A. D. 1877. A. L. Richardson, clerk district court. By E. A. Hollister, deputy."
The indictment charges that said "Flora Buchanan, on the thirteenth day of January, 1877, and at divers other days and times between that day and the day of finding this indictment, in the county of Ada, and territory of Idaho, and within the corporate limits of Boise City, to wit, on Idaho street in said Boise City, willfully and unlawfully did keep a bawdy-house then and there resorted to for the purposes of public prostitution." It is clear that this indictment charges the defendant with keeping a bawdy-house within the corporate limits of Boise City, in this county and territory, and that such offense is stated in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is meant. Section 234 gives a form for the indictment, which is substantially followed herein. The third ground alleges that more than one offense has been charged. We find nothing in the indictment to warrant this allegation. The fourth ground is equally untenable, because it is hereinbefore shown that a city ordinance must be proved on the trial, and cannot be used on demurrer.
The fifth ground alleges that the facts stated in the indictment do not constitute a public offense. In this action it is claimed that the common law is repealed by the act of the legislature, approved January 12, 1877, and hereinbefore set forth. This act delegates to the mayor and council of Boise City full power and authority to regulate or abolish bawdy-houses within the limits of Boise City; yet before this act can operate as a repeal of the common law on the same subject, it must further appear that the mayor and council of said city had accepted such power and authority by the passage of an ordinance or by-law under it, which fact does not appear in the transcript in such manner or form as to entitle it to notice in the review of this case. Therefore we hold that this indictment is good at common law, even though it conclude with the words "contrary to the form of the statute in such cases made and provided." (1 Archb. Crim. Pr. and Pl. 307, and author-
ities therein cited; 1 Bish. Crim. Pro., sec. 349, and cases therein cited.)
It is unnecessary to review the sixth ground of demurrer for the reason that we hold the indictment good at common law. The court committed no error in its refusal to sustain the demurrer.
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