State v. Goode

44 P. 640 | Idaho | 1896

MORGAN, C. J.

(After Stating the Facts.) — Objection has-been made to the appointment of this preliminary committee for the reason that it is a proceeding not authorized by the statute. While this proceeding is not authorized by the statute,, it would seem to be of no particular consequence in the proceeding now pending, and it would seem also that the committee was appointed simply for the purpose of ascertaining whether the-facts were sufficient to authorize the district attorney or some-other person to file an information and institute these proceedings. This committee did investigate the facts ex parte to-some extent, and reported in favor of filing this information,, upon which the information was filed as above stated. Objection is ais» made to the verification, that is attached to the accusation. We think the verification is sufficient. There are, it is true, attached to the verification unnecessary words, which might better have been omitted, but these words may be considered as surplusage, as the verification seems to be sufficient without them. In regard to the application for change of venue, we think it should have been allowed as it appears from the-affidavits that have been presented to this court; but the matter-cannot be reached on an application for writ of review. Section 4962 of this statute provides for a writ of review when an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of said tribunal, board or officer,, and there is no appeal, nor, in the judgment of the court, any plain, speedy, or adequate remedy. Subdivision 5 of section 4002 of the statute authorizes the supreme court to review on appeal the judgment or order of the court below in case of a removal or suspension of an attorney; and, as this order denying the change of venue is not a final order, and is not appeal-able as a final order, we think that the application for writ of' review is premature, inasmuch as an appeal is allowed to this-court from all the proceedings of the court below in this cause, which seems to furnish a plain, speedy, and adequate remedy for the defendant for any errors committed by the district court. The application for writ of review must be denied. The defendant also asks for a writ of mandate to compel the court below to restore him to all his rights and privileges in the said court during the pendency of this proceeding. The order of suspension of the defendant before a trial is had is, in our opinion, not proper, as it is in the nature of a penalty inflicted without giving the defendant his day in court, and before his conviction. The writ restoring him to his rights and privileges pending the investigation of these charges, and until the final determination of the cause, will be allowed, and is therefore ordered. This, we.think, disposes of all the questions that have been presented to this court in the above cause.

Huston and Sullivan, JJ., concur.