The People v. Butler

• Decision Date: 01 January 1869
• Citation: 1 Idaho 231
• Parties: The People, Respondents, v. John Butler, Appellant.
• Court: Idaho Supreme Court

1 Idaho 231

The People, Respondents, v. John Butler, Appellant.

Supreme Court of Idaho

January 1, 1869

CRIMINAL LAW-MOTION TO SET ASIDE INDICTMENT-PRACTICE.-After pleading to an indictment, and the setting of the case for trial, it is too late to move to quash or set aside the indictment.

COURTS-OFFICERS.-Courts will take official cognizance of their own officers.

INDICTMENT.-The Criminal Practice Act does not require the district attorney to sign indictments; nor does it prescribe a failure to sign as a ground for setting the indictment aside.

MOTION TO SET ASIDE INDICTMENT.-The statute having prescribed the grounds upon which a motion to set an indictment aside may be made, all other grounds are excluded.

INDICTMENT-ROBBERY.-In an indictment for robbery, the words "felonious" and "rob" carry with them the intent, and are sufficient.

IDEM.-An indictment is sufficient in substance if it describes the offense in the language of the statute by which it is created or defined.

APPEAL from the Second Judicial District, Ada County.

George C. Hough, for the Appellant. E. J. Curtis, District Attorney for the Respondents.

Opinion by MILLER, J.;

BOWERS C. J., and KELLY, J., concurring.

The defendant was indicted by the grand jury of the county of Ada, at the November term, 1868, for the crime of robbery. Upon being arraigned, the defendant demurred to the indictment on the ground that "the facts therein stated do not constitute a public offense." After argument, the demurrer was overruled by the court, to which ruling defendant's counsel excepted. Afterward the defendant moved the court to set aside the indictment on the ground "that said indictment is not signed by the proper officer; that said indictment is signed by E. J. Curtis as district attorney, when in fact one J. J. May is district attorney in and for the second judicial district, as will appear from the certificate hereto annexed." The motion to quash was overruled by the court. The defendant then entered a plea of not guilty, but afterward, before trial withdrew his plea of not guilty and pleaded guilty in open court; and judgment was pronounced on said plea that the defendant be imprisoned in the territorial prison for the term of five years. The defendant now appeals to this court from the judgment of the district court.

The points raised by the appellant are: 1. Upon the demurrer as to the sufficiency of the indictment; and 2. By motion to quash, that the indictment is not signed by the proper officer. We think the motion to quash was made too late; particularly after a judgment upon the plea of guilty it cannot be considered. The motion to quash was made under section 274 of the Criminal Practice Act. The transcript shows that after the ruling upon the demurrer, and after the plea of not guilty had been entered, and the case had been set for trial, the defendant, without leave first had, and without withdrawing his plea of not guilty, filed his notice to quash. Assuming the motion good, it came too late. Under our statute it should

have been made before demurrer and plea, and especially before the case is set down for trial of the issue of facts raised by the plea of not guilty. But, again, the grounds of the motion are not well taken. It states as its only ground that the indictment is not signed by the proper officer, for the reason that it is signed by E. J. Curtis, district attorney, whereas J. J. May is district attorney, as appears by the certificate of the latter's election thereto, in 1866, from the secretary's office. As to who was or was not district attorney, it is not relative to the point in issue. The court below finds against the motion, which for that purpose is decisive of the point, as courts will take judicial cognizance of their own officers. Assuming, however, the grounds of the motion are correct, the motion should be denied.

The Criminal Practice Act nowhere in all its provisions for the finding or presentment of indictments makes it obligatory upon the district attorney to sign the indictment, nor does it prescribe, in case of his failure so to sign, that the same may be set aside. The statute creating the office of district attorney, etc. (Laws of the Third Session, p. 187 sec. 3), says that the district attorney "shall sign all bills of...