5 Wyo. 329 | Wyo. | 1895
The petitioner seeks a discharge from the custody of the sheriff of Laramie County, by whom he is held under and by. virtue of a mittimus of the district court for that county, having been convicted of the crime of manslaughter in said court, and sentenced under said conviction. Tile-former proceeding in this court under writ of habeas corpus was to secure the admission of the petitioner to bail pending the proceedings in error in this court, which he was about to institute, and his application was refused. In re Boulter, (supra). The ille-. gality of the imprisonment of the petitioner is alleged in’ his petition to be that he was placed on trial and convicted upon an information charging him with the crime of murder ■ in the second degree, which was verified only upon information and belief, and not upon oath or affirmation, as required by article 1, section 4, of the constitution of this State, and the. 4th amendment of the Federal Constitution; that he has been, therefore, deprived of his liberty without due. process of law; that the statute under which the information against him was filed is violative of the constitution of the State, and that
The sheriff charged with his detention made answer reciting that the petitioner is held by virtue of the commitment of the district court, and further states that petitioner was, on the 23rd day of November, A. D. 1894, duly charged upon the affidavit of Josiah A. Van Orsdel, with .the crime of murder in the first degree, before a justice of the peace for Laramie county, and that upon said affidavit a warrant was issued by said justice of the peace for the arrest and detention of the petitioner upon said charge, and that he was arrested and detained thereon until a preliminary examination was held upon the affidavit, and on November 26,1894, the said justice found that there was probable cause to believe that said Boul-ter was guilty of murder in the second degree, and that, therefore, “he be held to answer the said charge to the district court for Laramie County forthwith at the present term of the district court in the penal sum of $5,000.” It is further alleged in the answer that the petitioner was charged with the crime of murder in the second degree in the district court, the information being based upon and made upon the affidavit filed before the justice of the peace, and also upon a transcript of the proceedings had before the justice, which was filed in the office of the clerk of the district court for Laramie County. It further appears from this pleading that Boulter pleaded not guilty to the information, and did not except to the verification of the information by a motion to quash, nor by plea in abatement, by demurrer, nor by pleading in bar. This answer is demurred to, and upon the demurrer the proceedings were submitted to the court for final determination.
1. It is now too late to challenge procedure by information as not “due process of law” under the constitutional provisions relating.thereto. The matter has been before this court, and our decision sustaining such a procedure is upheld by an overwhelming weight of authority, if not by all of the precedents. In re Wright, 3 Wyo., 478; Rowen v. State, 30 Wis., 129; Hurtado v. California, 110 U. S., 516.
It is insisted that the legislature under .these constitutional provisions had no right to-retain the grand jury-system and procedure by information, but must provide for one -or the other of these methods of -accusation, and that the authority conferred by the constitution upon the legislature to change, regulate and abolish the grand jury system; .does -not -confer the authority to keep that system alive, concurrently, with-
He quotes from the Commentaries of Sir William Blackstone (4 Bl. Com., 310), to show that the information system is as ancient as the common law itself, and adds these words of that great jurist: “And as to those offenses in which in-formations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in His Majesty’s Court of the King’s Bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, and the same judgment was given by the same judges, as if the prosecution had originally been by indictment.” True, informations were restricted to misdemeanors, and that was at a time when a crime was a felony, as a rule, and mis
However, both of these methods of accusation traveled together in those bloody days, and have ever since, even in the Federal courts, where, for offenses less than infamous, infor-mations have been used, under congressional enactment. Wherever the information system has been adopted,- and it is a favorite in many States, the grand jury system is still retained, but under restrictions. There may be -occasions when a secret investigation may be absolutely necessary for the protection of the citizen and society, and we see no objection to its retention, when directed by a. judge of a court of boundless jurisdiction like our district courts, and when it may be presumed that public interests require it. The law is uniform, or was at the time of the preliminary investigation of this case, and at the time of filing the information in the district court, because it required a judicial preliminary investigation, either by a grand jury upon sworn testimony or by a magistrate upon evidence publicly given and in the presence of the accused, with a right on his part to cross-examination and to produce witnesses in his own behalf. The other method of accusation known to the English law, a presentation of a coroner’s jury, super visum corpore, which was a sufficient accusation, is not retained. But we have substantially the Biitish method of indictment and information, the latter method more enlarged, but better guarded and more advantageous to the accused.
The record of this case discloses that the .petitioner had a preliminary examination upon the charge of murder in the first degree, and that he was held to answer to the district court for the crime of murder in the second degree and admitted to bail. It was held by this court that under the statutes then in force that a preliminary examination was necessary, and that no information could be filed against the petitioner than that for which he was held for trial by the magistrate, or for a lower grade of the same offense (State v. Boulter, 39 Pac., 884, see supra); and the question arose in the various proceedings which culminated in the conviction of petitioner of the crime of manslaughter.
3. The' statute is further challenged on the ground that it contains more than-one subject, both in the title and in the body of the bill.
The constitution provides that: “No bill, except general appropriation bills for the codification and' revision of the laws, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject is embraced in any act, which is not expressed in the title, such act shall be -void only as to so much thereof as shall not be so expressed.” Const:, 'Art. 3, sec. 3é. 'The title to .the act is as follows: “An act to change and regulate the grand'jury system by reducing the number of grand jurors, providing that a grand jury shall be summoned only when ordered by the eó'úrt, and providing for prosecution by information and the procedure thereunder.” The act very faithfully carries out the matters indicated in the title,'and .nothing-is embraced in the act but whát-is clearly expressed in the-title.- Nothing is “crouched in ■ the jungle” of' the bill nor “coiled up in its folds” to mislead the -legislator or the citizen. - The 'title is a
Indeed, the question is not one of first impressions in this court, but was extensively treated of in the case of In re Board of Commissioners of Johnson county, 32 Pac., 850 (In re Fourth Jud. Disit., 4 Wyo.), where the act was held not to fall within the constitutional ban. Sutherland on Stat. Const., sec. 76, et seq.; 23 Am. & Eng. Cyc. Law, 229. The action of the legislature recently in separating the subjects embodied in the act under consideration, is not of any weight, as such action may have been taken through caution, and it is the duty of the courts, and not of the legislature, to construe an act and to consider its constitutionality, although a legislative construction is sometimes entitled to great attention and' respect. The late acts contain some new provisions, and the original statute under consideration is continued in force by each of the later statutes in pending cases and as to all
The further objections to the act challenged by this proceeding need but passing notice. It is asserted that it amends provisions of prior laws by implication without re-enacting them at length, but the legislature is not compelled to resort to the amendment of prior laws, but may ehact new legislation covering the same subjects without reference specifically to existing laws. The provisions of the criminal code relating to indictments, writs, process, issuance and service thereof, motions, pleadings, trials and punishments, and all other proceedings in cases of indictment are applied to informations and prosecutions and proceedings thereunder, “as near as may be.” The legislature certainly had the right to mould past legislation to conform to the changes in the system of prosecutions and to enact new regulations regarding the number of a grand jury to be summoned when ordered, and the number of that body required to find a true bill, without particular reference to prior statutes containing provisions relating to the same subjects, in the exercise of its right to legislate independently of antecedent legislation.
4. The information charging murder in the second degree, upon the trial under which the petitioner was convicted of manslaughter, was verified upon the information and belief of the prosecuting attorney, which was allowed by the statute, and this proceeding is claimed to be in violation of petitioner’s rights. The constitutional guarantee that no warrant shall issue but upon probable cause, supported by affidavit particularly describing the person to be seized, is held to annul the information in this case verified upon information and belief which it is claimed does not support the warrant and is not probable cause. But the answer, with the accompanying records, discloses that there was probable cause for the information filed in the district court, as it was predicated upon the affidavit filed before the magistrate, the inquiry before that officer and the action of the magistrate in holding the peti
The points raised in this proceeding have been patiently considered by this court, although they might all have been
The demurrer to the answer of the sheriff of Laramie County is overruled and the petitioner is remanded to the custody of that officer.