283 P. 136 | Cal. Ct. App. | 1929
Lead Opinion
The People of the State of California prosecute this appeal from an order of the Superior Court in and for the county of Los Angeles granting defendant's motion in arrest of judgment.
It appears from the record that the defendant and respondent was bound over to the Superior Court by commitment issued by the committing magistrate for the crime of "attempt to commit robbery" from the person and presence of one Lawrence Knezvich. The district attorney in due course filed an information in the Superior Court charging the defendant and respondent in count I with the crime of "attempting to rob" one Lawrence Knezvich; in count II with the crime of "attempting to rob" one Jack Summers, and in count III with the crime of "burglary."
The defendant filed a demurrer to the information, particularly attacking counts II and III, on the ground that the court had no jurisdiction to try the defendant for the offenses therein set forth for the reason that the commitment designated only the crime set forth in count I. The record does not indicate what ruling, if any, was made by the court on this demurrer. It appears, however, that the defendant plead "not guilty" to each of the counts and went to trial upon the information, as drawn, before the court without a jury, a jury trial having been waived. During the trial count I was dismissed. Upon completion of the trial the defendant was found guilty of the crimes charged in counts II and III. Subsequent to the conviction and prior to passing of sentence, the defendant again filed a demurrer to the information, attacking counts II and III on the ground that the court had no jurisdiction of the offense therein charged, for the reason that the defendant had not been accorded a preliminary examination upon these charges and that the commitment, upon which he was *239
bound over for trial, did not designate the crimes set forth in counts II and III. This demurrer was overruled by the court, whereupon the defendant made a motion in arrest of judgment, basing his motion upon the same grounds as set forth in his demurrer, and particularly alleging that the latter portion of section
It is agreed by counsel on both sides that the determination of this appeal is dependent upon the question of the constitutionality of the latter portion of section
Section
"Filing Information After Examination and Commitment. When a defendant has been examined and committed, as provided in section
It is respondent's contention, first, that the amendment is in contravention of section
Section
"Sec. 8. Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.
The question as to the power of the district attorney in drawing an information to change, amend or add to the offense designated in a commitment issued by the committing magistrate, has long been a matter for discussion by courts of appellate jurisdiction in California. The early decisions prior to the case of People v. Nogiri,
The defendant Nogiri was committed by the magistrate to the Superior Court for trial for the crime of "assault with a deadly weapon." The information filed by the district attorney charged defendant "with an assault with a deadly weapon with intent to commit murder." After referring to the previous decisions upholding the right of the district attorney to include in the information offenses not designated in the commitment, the court, speaking through Mr. Justice Henshaw, says: "The result of these decisions is to vest in a ministerial and executive officer, the district attorney, supervisorial, appellate and judicial powers controlling the judgment of a judicial magistrate who alone, under the Constitution, is empowered to hold the examination, and who alone is empowered to declare by his commitment the offense for which the accused person shall be put to trial. This, we think, the law neither contemplates nor permits. The Constitution of this state (art. I, sec. 8) provides *241
that `offenses heretofore required to be prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate.' Section
Mr. Justice Henshaw, with the purpose of enforcing the conclusion arrived at, quotes a portion of the dissenting opinion written by Mr. Justice Harlan of the United States Supreme Court in the case of Hurtado v. California,
It will be noted that the conclusion of the court in the Nogiri case was based primarily upon the view that, "Neither in the Constitution, nor in the laws enacted in furtherance of it, is there the slightest vestige of judicial, discretionary or appellate power given to the district attorney in controlling the acts of the committing magistrate."
Undoubtedly, the legislature moved by the holding in the Nogiri case and subsequent cases where the Nogiri case was cited as authority for the same ruling, that there was no provision in the statutes authorizing the district attorney to include in an information any crime or crimes not designated in the commitment and being convinced that the investing of such power under limited conditions in the district attorney would tend to make more efficient, prompt and less expensive, the trials of those charged with crime, determined to enact legislation that would clearly give to the district attorney this power; hence the amendment in question to section
It is respondent's contention, first, that, under section 8 of article I of the Constitution, the committing magistrate is clothed with the exclusive power to designate the offense that the defendant should be charged with in the Superior Court, and the legislature is therefore without power to delegate to the district attorney the discretion provided in the amendment; and, second, that the amendment is an attempt to clothe an administrative officer with judicial powers, which, it is urged, is in contravention of section 1, article III, of the Constitution, which divides the powers of government into three separate departments and prohibits the exercise by one department of powers properly belonging to another.
[1] It has been firmly established that there is no vested right in a remedy and that the legislature has the power to regulate procedure in criminal cases. (People v. Campbell,
Pursuant to the authority thus prescribed by the Constitution the legislature has provided for the various steps in bringing one charged with a public offense before a magistrate for examination, and also the powers and duties of the magistrate in conducting the examination and binding the defendant over to the Superior Court for trial. The legislative grant of these powers has been uniformly sustained and particularly those provided in section
So, too, the legislature has prescribed the duties and powers of the district attorney in the necessary steps after the preliminary examination up to the trial before a jury in the Superior Court, and also the powers of the district attorney and the court during the trial. These powers have generally been sustained as within the scope of legislative enactment. (People v. Foster, supra.)
Since the Nogiri case, the amendment of an information has repeatedly been before our courts, but in every instance where this question has been discussed and the limitation of the power of the district attorney in filing an amended information upheld, the ruling has been predicated upon the lack of authority prescribed by the legislature and not because *244
of the inhibitions of the Constitution. In People v. Hinshaw,
In People v. Foster, supra, the action of the trial court in permitting the district attorney to amend an information changing the name of the person alleged in the commitment and in the information to have been robbed was under attack. The court said: "Conceding that the district attorney by virtue of section
[2] Language of similar import from other California cases might be quoted, but to do so would extend this opinion to an unwarranted length. It will suffice to observe that we have been cited to no case decided since the Nogiri decision where our Supreme Court has held or even indicated that the limitation of the power of the district attorney in filing an amended information, including offenses not designated in the commitment, was due to any constitutional inhibitions. The case of People
v. Foster, supra, involves facts similar to those in the instant case and presents an interesting discussion of the constitutional rights of one charged with a crime, in so far as the procedure in bringing him to trial is concerned. The original information charged the defendant with robbery, specifying that the sum of $46 was feloniously and forcibly taken from the person, possession and immediate presence of one Mrs. Agnes *245
Funke. During the trial it appeared from the evidence that the money was not taken from the possession and immediate presence of Agnes Funke, but was taken from the possession and immediate presence of one Freda Knuebel, another person. The defendant upon appeal urged that his constitutional rights were violated in the filing of the amended information without a preliminary examination upon the charge of robbing Freda Knuebel. In discussing this question, the court construed section
"Under our system of criminal procedure the committing magistrate is not limited in making his order of commitment to the allegations of the complaint or the crime named therein. It is his duty to commit the accused for trial for the offense disclosed by the evidence, even though it be a different offense than the one laid in the complaint. (Citing authorities.) In this case the accused was held to answer to the charge of robbery committed in the county of Los Angeles on a stated day; the kind of property taken is described as money and the amount thereof was $23. The crime charged in the complaint and found by the magistrate to have been committed by the defendant was robbery,
with the time, place and amount of money taken specifically stated. . . . If no constitutional right of personal liberty is violated by amended section
In the case of People v. Shope,
In the case of People v. Milligan,
If then the power granted under section
The opinion in Ex parte Nicholas,
In the case of People v. Barnett,
[3] Respondent also urges that the amendment in question is void in that it attempts to clothe the district attorney, a ministerial officer, with judicial power and that this is in contravention of section 1, article III, of the Constitution, which reads as follows: "The powers of the government of the state of California shall be divided into three separate departments — legislative, executive and judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except as in this Constitution expressly directed or permitted."
There is abundant authority in California giving support to legislation that vests in a legislative body, or administrative officer, judicial functions, when such acts are merely incidental to the performance of a legislative or executive function. The cases are not uniform in fixing the line of demarcation between the valid grant of such authority, and legislation which improperly intrudes upon judicial functions which are by the Constitution reserved to the judicial branch of the government. There is authority, however, for the general rule that where the judicial act authorized is merely incidental to the main function of the legislative body, or administrative office, the grant is not void because of constitutional limitations. In fact, the exercise of this incidental judicial power by administrative officers and municipal bodies has become so common that citation of authority *248 seems hardly necessary. It may suffice to suggest that in the matter of public improvements, various boards and officials clearly classified as legislative bodies and administrative officers are constantly performing judicial functions in fixing the boundaries of assessment districts; in determining whether property affected is either damaged or benefited thereby, and in fixing the amounts of such damage or benefit; in equalizing special assessments and taxes. Then, too, there are various boards and commissions which function as a part of the executive branch of the government that are frequently required to make decisions, which call for the exercise of judicial functions. Legislative enactments authorizing the exercise of judicial functions in the various lines of activities indicated, have been in the main sustained as not invading the judicial branch of the government.
In the case of People v. Sacramento Drainage Dist.,
"It is insisted that this (act) either creates a court or confers judicial powers upon executive and administrative officers in violation of the constitutional provision of sections 1 and 5 of article VI of the Constitution. That the board sitting to equalize the assessments acts judicially, must be conceded. The very purpose for which it sits is to act judicially for the correction of errors and abuses in the original assessment. But to say that for this reason the legislature has attempted to create a court in violation of the Constitution is a proposition to which assent must be denied. Many acts, judicial in their nature, must of necessity be performed by the executive and administrative officers of the government. The decisions of such officers upon any controverted question, upon any question even in which there is play for discretion, are in their nature judicial. But because this is so, and necessarily so, it does not follow that they are usurping the exclusive functions of the courts of the land, and if they are not doing so, the power which they *249 exercise may not be questioned. City councils and boards of supervisors annually fix the rates which water consumers within their territories shall pay to quasi public corporations furnishing such water. Here, these boards are called upon to consider and decide controverted questions of fact of great moment and of much nicety. Their decrees fixing rates contain many of the elements of a judgment. They are binding determinations upon the water company upon the one hand, and upon the consumer upon the other; yet, the power of these boards to exercise such quasi judicial functions has been upheld."
In the case of Robinson v. Kerrigan,
[4] Our conclusion, therefore, is that the amendment to section
The fact that we have not discussed in detail all of the cases cited in the briefs filed herein does not indicate we have failed to give them consideration. The length of this opinion would seem to preclude further discussion of the authorities cited.
The judgment of the trial court in granting defendants' motion in arrest of judgment is reversed and the case remanded to the trial court for pronouncement of judgment or such other proceedings as the court may be advised.
York, J., concurred.
Dissenting Opinion
I dissent from the judgment. Particularly am I unable to agree that the questioned provisions of section
In the case of People v. Anthony,
The leading case in this state, which really considers the constitutionality of the statute by which a district attorney is authorized to substitute his judgment for that of the committing magistrate regarding the offense for which the defendant is to be placed on trial, is that of People v. Nogiri,
As supplementing the authority of People v. Nogiri,
In the case of People v. Foster,