84 P.2d 979 | Mont. | 1938
September 10, 1935, two informations were by leave of court filed in Jefferson county. One charged Everett Juhl with the willful and unlawful killing of John Haab; the other charged Everett Juhl with a felony founded upon defendant's failure to render the injured person attention after having run him down and killed him on the highway near the town of Clancy. The crimes were alleged to have occurred on September 1, 1935. *311
The defendant was arraigned, pleaded not guilty, and was released under bonds. March 10, 1936, was fixed as the date of trial. On motion of defendant's counsel the date of trial was vacated, and thereafter the cases were set for trial on October 13, 1938. On October 10, 1938, a new district judge having been elected in the meantime, counsel for defendant appeared and moved the court that both causes be dismissed on the ground that the defendant had not been brought to trial within six months. The motions were not opposed by the county attorney and the same were granted.
Thereupon, at the same time and in open court, the county attorney presented new informations to the court charging the defendant with the same crimes as those charged in the old informations, and asked leave of court to file the same, which was granted. Counsel for defendant moved to set aside the leave to file on the ground that "the application for said orders does not state facts sufficient to constitute probable cause and insufficient facts are shown to authorize leave to file." The motions were denied. The applications for leave to file set out no facts but by reference to the old informations obviously depended upon the old for facts to support the new. Counsel then moved to quash the informations, alleging in substance the same grounds in support of these motions as were advanced to support the motions to set aside. The motions to quash were also denied. A motion for a bill of particulars was likewise denied. Demurrers to the informations were interposed on the ground that the facts set forth as constituting the crimes did not state public offenses, and further that they were not direct and certain as to the circumstances of the offenses charged and insufficient to advise the defendant as to what it would be necessary for him to do to prepare his defense. The demurrers were overruled and thereupon defendant petitioned this court for an alternative writ of supervisory control, commanding the district court to dismiss the informations, or show cause why it should not do so on a date to be specified in the order. Our order was issued authorizing the alternative writ and fixing the return day as *312 November 10, 1938, and restraining the district court and judge from further proceedings in the matter until the further order of this court. On the return day counsel for the state moved to quash the writ and dismiss the proceeding. We proceeded to hear the motion to quash and the arguments on the merits together.
The relator's attack is along the line indicated by his several motions to quash, to set aside and his demurrers to the informations. The fact is emphasized that the request submitted to the district judge by the county attorney was insufficient to move the discretion of the court to grant the leave to file.
Section 11891, Revised Codes, provides: "The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases: * * * If it be an information — 1. That leave to file the same had not been granted by the court; * * *."
On the question of "leave to file" this court has heretofore[1, 2] commented upon the subject, but has not laid down any definite rule as to what must be presented to the court to move its discretion either to grant the leave to file or deny the same.
In State v. Brett,
In State v. Martin,
In State v. Vuckovich,
"The right of the court to grant leave to file an information without previous examination by a committing magistrate is settled law in this state. It is authorized by the Constitution (sec. 8, Art. III), granted by the statute (secs. 9105, 8929), and confirmed by numerous decisions of this court (State v.Brett,
"The facts on which the court acts in granting leave must be satisfactory to the court `whatever may be the form or manner *314 of their presentation.' (State v. Martin, supra.) The county attorney is a constitutional officer (Article VIII, sec. 19, Constitution), acting under oath, vested with authority, and it is his duty to inquire into alleged violations of law, to institute criminal proceedings, and to represent the state in matters and proceedings in his county (sec. 3052, Rev. Codes), signs all informations (sec. 8921, Rev. Codes), and may make `application for leave to file an information before an examination, commitment, or admission to bail' (sec. 8928, Rev. Codes), and when the application, as in this case, is accompanied by an affidavit and the court is satisfied with the report thus made, it may act thereon and grant such leave, although it may require additional information if it so desires."
In State v. Kacar,
In State v. Foot,
Leave of court to file an information, although an old common-law practice, is not followed generally in other jurisdictions. The statutory provisions of California, from which we took our sections 11801 and 11891, sections 809 and 995 of the California Penal Code, make no provision for obtaining leave of court to file an information. However, from the various decisions of this court above quoted from, it is quite obvious that obtaining leave of court has never been considered merely a perfunctory matter in this jurisdiction, but must be attended with more or less formality.
It has always been the policy of the legislature, carefully observed by our court, to provide for the strict construction of penal statutes in the interest of the accused. We think the proper course to pursue in all such matters is well expressed in the case of McSwane v. State,
If an application made by the county attorney to the district judge for leave of court to file an information against any person shall be granted as a matter of course, we can conceive of no reason why the county attorney should be required to file his motion for leave of court in writing accompanied by certain other formalities provided by the statute. It seems to us that there must be sufficient facts and information presented to the court to move the discretion of the court; otherwise, it would be merely a perfunctory proceeding and contrary to a number of the decisions of this court, to some of which we have alluded.
Our conclusion is that when the informations filed on[3] September 10, 1935, were dismissed on October 10, 1938, and new informations filed, it was necessary before the court would be justified in granting the leave to file the new informations, that the application therefor by the county attorney should be just and complete and formal as though the matter had never been before the court, whereas the county attorney merely stated in his application to file: "The county attorney is satisfied that the defendant is guilty of the crime of felony as charged in the information as originally filed."
Unless we change the former rulings of this court and hold that granting of the request of the county attorney to file an information is merely a perfunctory matter, we must hold that motion for leave to file an information must be complete in itself and not dependent on any former information which has become functus officio; and we further hold that there were not sufficient facts presented to the court to move its discretion to grant the leave to file the new informations against the defendant. Let the writ issue.
MR. CHIEF JUSTICE GODDARD and ASSOCIATE JUSTICES STEWART, ANDERSON and ANGSTMAN concur. *317