190 P. 248 | Idaho | 1920
Appellant was convicted of the crime of transporting intoxicating liquor. On Oct. 2, 1916, an information was filed against him, charging possession and transportation of intoxicating liquor. A demurrer to the information was sustained, and the prosecuting attorney granted ten days in which to file an amended information. After the expiration of the ten-day ‘period, upon application of the prosecuting attorney, the court entered an order directing
On Dee. 23, 1916, appellant filed a motion that he be discharged and that his money deposited instead of bail be refunded. The court denied his motion to dismiss and ordered that his bond be exonerated. The ruling of the court in declining to dismiss is assigned as error.
It is urged that the court, having sustained a demurrer to the information, further prosecution was barred because
C. S., see. 8874, is as follows: “If a demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the ease to be resubmitted to the same or another grand jury.”
It is to be observed that an order sustaining a demurrer to an indictment, or information, bars another prosecution for the same offense. The distinction between “offense,” as used in C. S., sec. 8874, and “act” or “omission,” as used in C. S., see. 8,602, is discussed in the case of State v. Gutke, 25 Ida. 737, 139 Pac. 346. It is a sufficient answer to the contention in this case that it does not appear upon the face of the record that the complaint laid before the committing magistrate charged the same offense as the information to which the demurrer had been sustained. Although the charge contained in the complaint appeared to state an offense of the same nature as that contained in the former information, it would have required additional evidence to show that the offense charged was the same, or that it grew out of the same transaction, which evidence was not produced in support of the motion.
Appellant moved to quash the information upon several grounds, all of which are based upon the proposition that the complaint laid before the committing magistrate charged four separate offenses. The motion was properly overruled.
A preliminary examination before a committing magistrate is in no sense a trial. The purpose is to obtain the judgment of a magistrate to the effect that’ a crime has or has not been committed, and if committed that there is reasonable ground to believe that the person accused is guilty of committing the crime. It is not to be expected, nor is it required,’ that the same formality and precision must obtain in a preliminary examination as is required upon the trial.
While under the statutes it is clearly contemplated that a complaint laid before a committing magistrate shall charge a single offense, yet the fact that it charges more than one offense is an irregularity which is not of so fundamental a character as to deprive the prosecuting attorney of power to file an information, where the committing magistrate has held the accused to answer for the offense afterward set out in the information. (See Sothman v. State, 66 Neb. 302, 92 N. W. 303.) Nor is it fatal that the magistrate has found the offenses specified in the complaint to have been committed and has held the accused to answer for them all. Should the prosecuting attorney afterward file one information charging all the offenses for which the accused has been held to answer, the accused is not deprived of any substantial right. Upon arraignment he has ample opportunity to object to the information by demurrer, and may, if he chooses, require the state to elect upon which of the charges he shall be prosecuted.
The trial Court should have sustained the demurrer to the information, upon the ground that it stated more than one offense. The general rule is that an indictment or information must charge but one offense, (C. S., secs. 8829, 8870.)
The only exception to this rule is found in O. S., sec. 2642, as follows:
“When a defendant has been held to answer to the district court for more than one offense under the laws of this state relating to the sale of intoxicating liquors, the prosecuting attorney may, in filing his information against such defendant, include therein all the offenses for which such defendant is then held to answer to such district court, stat
The foregoing section, however, refers only to offenses Committed in making sales of intoxicating liquor, and cannot be enlarged to include other offenses against the prohibition law. However, the error in failing to sustain the demurrer might have been cured had the court required the state to elect upon which of the charges stated appellant should be put upon his trial. In this case the information having charged more than one offense, the state should have been required to elect at the opening of .the trial, but appellant renewed the motion at the close of the state’s case. The action of the court in denying the motion was error. (State v. Gomes, 9 Kan. App. 63, 57 Pac. 262; Moss v. State, 3 Ala. App. 189, 58 So. 62; State v. Schweiter, 27 Kan. 500; State v. Harris, 51 Mont. 496, 154 Pac. 198; State v. Miller, 263 Mo. 326, Ann. Cas. 1916A, 1099, 172 S. W. 385; State v. Poull, 14 N. E. 557, 105 N. W. 717; Dix v. Commonwealth, 110 Va. 907, 67 S. E. 344; State v. Roby, 128 Minn. 187, Ann. Cas. 1915D, 360, 150 N. W. 793; 22 Cyc. 408.)
The fact that appellant introduced no evidence does not render the error of the court nonprejudicial. His failure to introduce evidence may have been caused by the action-of the court in refusing to require the state to elect. (See Moss v. State and State v. Gomes, supra.)
The judgment is reversed and the cause remanded to the district court for further proceedings in accordance with the views herein expressed.
