9 Mont. 167 | Mont. | 1890
This is an appeal from the order of the court below sustaining the motion of the respondent to quash the information which was filed December 3, 1889, by the county attorney of the county of Lewis and Clarke. The respondent is charged with the commission of the offense of murder in the. first degree upon the twenty-fifth day of August, 1889. After the arraignment of the accused a motion was made by his counsel, and- sustained by the court, to quash the information, “ because the county attorney in and for Lewis and Clarke County, Montana, had no authority to make or file the said information in the said action.”
It is admitted that the State of Montana was legally organized on the eighth day of November, 1889, and that the crime which is described in the information was committed within the Territory of Montana. The questions which have been discussed on this hearing relate to the interpretation of the following clause of the eighth section of the third article of the Constitution: “All criminal actions in the District Court, except those on appeal, shall be prosecuted by information' after examination and commitment by a magistrate, or after leave granted by the court, or shall be prosecuted by indictment without such examination or commitment, or without such leave of the court. A grand jury shall consist of seven persons, of whom five must concur to find an indictment. A grand jury shall only be drawn and summoned when the district judge shall, in his discretion, consider it necessary, and shall so order.”
In the States which are governed by constitutions containing similar provisions regarding the procedure by information, statutes have been enacted to enable the courts to secure their enforcement. The legislative assembly of Montana have not passed any law of this nature, although it is contended that the same result has been attained- by the adoption_of the common
There are some provisions of the Constitution which have a direct bearing upon the case at bar, and should be considered. “ No person shall be deprived of life, liberty, or property without due process of law.” (Art. iii. § 27.) “All laws enacted by the legislative assembly of the Territory of Montana, and in force at the time the State shall be admitted into the Union, and not inconsistent with this Constitution, or the Constitution or laws of the United States of America, shall be and remain in full force as the laws of the State until altered or repealed, or until they expire by their own limitation.” (Section xx. Schedule, § 1.) “ No crime or criminal offense committed against the laws of the Territory of Montana shall abate, or in any wise be affected, by reason of the change from a territorial to a State form of government; but the same shall be deemed and taken to be an offense against the laws of the State, and the appropriate
It is evident that the clause of the Constitution respecting the information does not execute itself. All the details affecting the exercise, jurisdiction, and limitations of the procedure, and the rights and pleadings of the State and accused, must be defined by the legislative department. It has been observed that the States which have abolished the grand-jury system have enacted laws to carry into effect this provision of the Constitution, and the following authorities will show their importance: Rowan v. State, 30 Wis. 129; 11 Am. Rep. 559; State v. Sloan, 65 Wis. 647; Kalloch v. Superior Court, 56 Cal. 229; Hurtado v. California, 110 U. S. 516; State v. Boswell, 104 Ind. 541. In Kalloch v. Superior Court, supra, the court says: “But the Constitution of this State has made provision for this form of prosecution, and the legislature has furnished the machinery to enforce it. In our opinion the proceeding is a legal and constitutional one.” In State v. Boswell, supra, the court says: “ It seems clear to us that one who is tried and convicted upon an information provided for by a constitutional
The solution of the legal problem relating to the information in this case includes also the question as to the mode of prosecuting or investigating the charge against the respondent under the State government. The court below did not discharge the defendant, but ordered him to be remanded to the custody of the sheriff to await its further action. When all the provisions of the Constitution which have been cited are construed together, it will be apparent that the Criminal Practice Act relative to indictments remains in full force, with two exceptions. The number of the grand jury has been reduced from sixteen to seven, and the concurrence of five members is required to find an indictment. In these incidents the Constitution executes itself; and, in the absence of further legislation, all offenses of the grade of felonies, or having their origin in the District Court, must be inquired into in this manner.
It has been maintained that the substantial rights of the respondent will be thereby impaired, and that this ruling, in its consequences, is ex post facto. The leading authority upon this matter is the case of Kring v. Missouri, 107 U. S. 221. Mr. Justice Miller, in delivering the opinion of the court, declares in the following sentence the law upon the decisive point: “ Tested by these criteria, the provision of the Constitution of Missouri which denies to plaintiff in error the benefit which the previous law gave him, of acquittal of the charge of murder in the first degree on conviction of murder in the second degree, is, as to his case, an ex post facto law, within the meaning of the Constitution of the United States.” The same principle is recognized in Hopt v. Utah, 110 U. S. 574, and it is also held that statutes which “remove existing restrictions upon the competency of certain classes of persons as witnesses relate to modes of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed
It is therefore adjudged that the order appealed from be affirmed, with costs.