16 Mont. 360 | Mont. | 1895
It appears by the record that the information upon which the defendant was convicted of the crime of forgery was filed by leave of court. Nevertheless, it is argued, a prosecution by information, where there has been no preliminary examination, is illegal, and a violation of constitutional rights. Const. , art. Ill, § 8, expressly provides that “all criminal actions in the district court, except those on appeal, shall be
One of two methods of procedure is indispensible where an information is filed, — either there must have been an examination and commitment, or there must have been leave of court procured. But both steps are not required. A plain interpretation of the words of the constitution by which every clause of the section quoted shall be effective leads to this conclusion. •We think, too, that the rights of a defendant are guarded, no matter what procedure is followed.
1. Where an investigation into his guilt or innocence is had before a committing magistrate, and a commitment is the result, such a judicial inquiry is sufficient to justify the county attorney in proceeding in the district court without first obtaining leave of that court'to file an information, formally charging the defendant with the offense for which he was examined, or any other offense, by the facts disclosed upon such preliminary hearing. The protection rests in the guaranty of a right to a judicial review of the matter by an impartial magistrate.
2. Where no examination has been had before a magistrate, and no commitment has been made, in such case, to protect the rights of the defendant, and to guard him against oppression or malice, and to prevent abuse of any general power vested in the county attorney, leave of the district court is necessary to be obtained. Thus, again, there is the guaranty that a judicial order will be required before there can even be a
3. Where a grand jury investigates crime, they may act independently of any preliminary charge, or without the permission of the court. The formality of the organization of a grand jury, its well-tested utility as an institution of the law, its intelligence, its numbers, and its presumed impartiality, themselves are deemed sufficient assurances that the jurors will abide by their oaths under the law to present no indictment £ 1 through hatred, malice or ill will, nor leave any unpresented through fear, favor or affection, or for any reward, or the promise or hope thereof. ” For these reasons, doubtless, the constitution has vested this power of indictment in the grand jury, and saw fit not to restrict their jurisdiction by any limitations other than those usually governing the conduct of such a body.
We are cited by appellant to several cases in California, Kansas and Michigan, but none of those decisions are applica
In California, by section 8, article I, of the constitution, offenses shall be prosecuted by information, after examination and commitment; and by section 995 of the Code of Criminal Procedure of California, an information shall be set aside if, before the filing thereof, the defendant has not been legally committed by a magistrate. (People v. Christian, 101 Cal. 471, 35 Pac. 1043.) Procedure like that of Montana, after obtaining leave of court, is not known to that state; and it is well to note that the annotations to sections 1730 and 1910 of the Penal Code now in force are not made with relation to the proper effect to be given to the authorization in the constitution of Montana permitting informations to be filed where leave of court has been obtained, without regard to whether there has been any preliminary examination before a magistrate.
In Kansas, it is also expressly provided by statute (paragraph 5133, Gen. St. 1889) that “no information shall be filed against any person for any felony until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination, ” etc.
In Michigan, it is provided by section 9555, page 2299, How. Ann. St., that no information shall be filed until there has been a preliminary examination, unless such person shall waive his right to such examination. (People v. Evans, 72 Mich. 367, 40 N. W. 473.)
Appellant raises the additional point that even if the constitution of the state does authorize prosecution by information without preliminary examination having been had, where leave of court is first obtained, such a proceeding is a deprivation of the liberty of the citizen, without due process of law, and is an infringement abridging the privileges and immunities of
The supreme court of the United States, in Hurtado v. People, 110 U. S. 534, 4 Sup. Ct. 111, 292, affirmed the doctrine laid down in the earlier case of Davidson v. New Orleans, 96 U. S. 97, that “ it is not possible to hold that a party has, without due process of law, been deprived of his property when, as regards the issues affecting it, he has, by the laws of the state, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case. ’5 ‘ ‘ In the fourteenth amendment,5 ’ speak the court, ‘ ‘ by parity of reason due process of law refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure. ” “It follows that any legal proceeding, enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law. ’ ’ And, again, the same court, in Hallinger v. Davis, 146 U. S. 314, 13 Sup. Ct. 105, decided that a .statute of New Jersey conferring upon one charged with crime the right to waive a trial by jury, and to elect to be tried by the court, and conferring power upon the court to try the accused in such case, is not in conflict with the constitution of the United States. Justice Shiras approvingly quotes from a former decision of Justice Bradley in Missouri v. Lewis, 101 U. S. 22, as follows: 1 ‘ There is nothing in the constitution to prevent any state from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the state of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties,
Guided by the discussions and logical reasoning of such constitutional expounders as J ustices Miller and Bradley, we are of the opinion that, by the clause under discussion, the framers of the constitution of the state formulated a somewhat new and presumably improved procedure in criminal cases, limited, but general in its application; always circumscribed in its operation by depending upon the sound approval of a court before its power may be legally invoked to charge a citizen with crime who has never had the opportunity of a hearing before a committing magistrate, or whose conduct has not been investigated by a grand jury. We are therefore unable to see how
In State v. Sureties of Krohne (Wyo.) 34 Pac. 3, Groesbeck, C. J., in a learned opinion, analyzes a former statute of that state, which authorized a prosecuting officer, without any authority of the court first being obtained, to file an information, and comes to the conclusion that, although the provision was an extreme one, yet it did not conflict with the constitutional safeguards thrown about every citizen of the state. It is unnecessary for this court to pass upon such a statute, or an equally liberal statute to be found in the state-of Washington, and criticised by Judge Handford in Re Humason, 16 Fed. 388, or the laws of other states which permit informations to be filed without the leave of court first obtained. See, on t.his point, Swart v. Kimball, 13 Mich. 443, 5 N. W. 635, and cases cited in the opinion of Groesbeck, C. J., supra. It would seem, too, that there is much more room for argument against the validity of a statute where the county attorney may proceed without leave of court than where such leave is a prerequisite to filing an information. But if, as is held in several of the decisions cited, there is no infringement upon rights where no leave is required, and no examination need be had, a fortiori can it be said that none are denied where a court must exercise a control over the action of the county attorney.
The point that a city warrant is not the subject of forgery is not well taken. The statute makes it forgery to 1 ‘falsely make, alter, forge, or counterfeit any * * * writing obligatory, draft, * * * contract, ’ ’ etc. (Comp. St. div. 1, c. 7. § 96.) A city warrant or order, regular on its face, and apparently drawn according to law on the city treasurer, signed by the mayor of the city, and countersigned by
The warrant is not illegal upon its face. On the contrary, it purported to be good and valid for the purposes for which it was made. On its face it would have the effect to defraud those who might act upon it as genuine. Therefore, if it was altered with intent to defraud on the part of the defendant, the crime of forgery was complete. (People v. Bibby, 91 Cal. 470; State v. Vineyard, ante page 138; 2 Bish. Cr. Law, §§ 523, 533.)
Appellant finally argues that he ought to have been permitted to prove that the warrant was void, because the city of Helena had exceeded the constitutional limit of its indebtedness at the time the draft in question was issued. This argument is well answered by the observations of the supreme court of California in People v. Munroe, 100 Cal. 664. In that case the defendant was convicted of forgery. The writing was an assignment of the unearned salary of a public school teacher for the next ensuing month, together with an order on the city auditor of Los Angeles for the warrant representing such salary. It was claimed that the purported author of the writing, being a public school teacher, was a public officer, and that the sale or assignment of an unearned salary by a public officer was void, being against public policy, and, the writing being void, it could not be the basis of a charge of forgery. The court held that the writing was the subject of forgery, and, in discussing obligations ultra vires, said: “Obligations ultra vires stand upon the same level with contracts against public policy as to the offense of forgery. If one is not the subject of forgery, neither is the other. In England, corporations are created by special acts of parliament. Within those acts are found the measures of their powers. In this country, the general statutes, in connection with the articles of incorporation, which are public records, form the limitation of their powers. Thus, the world deals with corporations with a knowledge of the extent of their powers, and ignorance of
We find no error in the ease. The judgment is affirmed.
Affirmed.
