123 P. 897 | Utah | 1912
This is an appeal taken by the state pursuant to C'omp. Laws 190J, section 4958, to determine a question of law.
The facts, in substance, are as follows:
On January 16, 1911, a complaint was duly filed before D. A. Lindsay, justice of the peace, as a committing magistrate within Eureka precinct, Juab County, Utah, in which the defendant was charged with having on the 14th day of January, 1911, committed the crime of murder in the first degree by shooting and killing one W. H. Palmer. A preliminary examination upon said charge was held on the 24th day of January, 1911, and said defendant was held to answer to the district court of Juab County, as provided by law. Subsequently, and within the time required by the statute, the district attorney duly filed an information in the district court of said county in which the defendant was charged with the crime of murder in the first degree committed as aforesaid. On the 9 th day of February following the defendant was duly arraigned upon the charge as aforesaid in said district court, and then and there entered a plea of not guilty. The district attorney, having some doubt respecting the regularity of said arraignment, asked that the defendant be, and; on the 2d day of March he was, again arraigned on said charge and again entered a plea of not guilty. On the same day the defendant made an application to postpone the trial
Counsel defend the court’s ruling upon the ground that the preliminary examination was not conducted according to law in this: That Oomp. Laws 1907, section 4670, provides that on a preliminary examination in homicide cases the testimony of the witnesses must be reduced to writing. Said section also provides that the magistrate before whom the preliminary examination is held may “order the testimony and proceedings to be taken down in shorthand, in all examinations herein mentioned, and for that purpose he may appoint a stenographer.” It is further provided therein that such stenographer shall write out his notes into longhand, and the manner of authenticating the testimony and! proceedings after the stenographic notes are transcribed or written out into longhand, and when and where the same is to be filed, and the use that may be made thereof, are also specified
In our judgment there is no merit in these contentions, and, as we view it, the district court cominitted a grievous error in holding that it had not acquired jurisdiction of the case and in entering judgment dismissing the action. Article 1, section 13, of our Constitution, so far as material here, provides:
*68 “Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate, unless an examination be waived by the accused with the consent of the state, or by indictment with or without such examination and commitment.” The examination may therefore be waived by the accused in every case. If the entire proceeding may be waived, it would seem that any part thereof may likewise be waived, and that such a waiver may be deemed to have taken place, unless the accused at the proper time and in a proper manner indicates that he does not waive anything. For instance, if one is charged with a felony in a proper complaint filed before q magistrate, and he is by such magistrate held to answer to the district court of the county in which the alleged crime was committed, and a complaint against him was filed, and the magistrate makes a transcript of the proceedings had before him on such complaint, and files it in the district court aforesaid, and in which transcript it is made to appear that the accused waived the preliminary examination, or- the magistrate says nothing at all about such an examination, and the district attorney, acting upon the transcript filed as aforesaid, files an information charging the accused with a felony described in the complaint filed before the magistrate, and the accused then appears in .the district court and enters a plea to the merits, and enters upon a trial, could he at such time for the first time object to and assail the jurisdiction of the court or otherwise contest the right of the court to proceed upon the information aforesaid because the accused had not waived the preliminary examination, or because he was not given such an ‘examination and therefore must be discharged from custody? We held in a recent case (State v. Springer, 40 Utah, 471, 121 Pac. 976) that the accused is not bound by the recitals contained in the magistrate’s transcript in so far as those recitals relate to a preliminary examination having been held, and that, although it be stated in the transcript that the preliminary examination was held or waived, the accused may nevertheless move the district court to quash the information filed against him upon the ground that*69 be bad not been given a preliminary examination and be may sbow tbe facts in that regard in support' of bis motion to quash.
If it be assumed, therefore, that it must affirmatively be made to appear from tbe magistrate’s transcript filed in tbe district court that be appointed tbe stenographer who certifies to tbe transcript of the testimony and proceedings, and if it be further assumed that tbe omission to sbow such an appointment affects the legality of tbe preliminary examination, yet, unless tbe accused moves to quash tbe information filed against him before pleading to tbe merits, be must be held to have waived bis right to a preliminary examination as well as bis right to assail tbe legality or regularity thereof either upon tbe trial by objecting to tbe evidence, as was done in this case, or in arrest of judgment, or in any other way.
Moreover, the appointment referred to in the statute can be but for one purpose, namely, to confer authority upon the stenographer to act and to malee his transcript of the evidence and proceedings at least prima facie authentic. In view of this, we think the administering of the oa.th, followed, as it was, by taking the testimony and proceedings with the consent of all concerned, constituted a sufficient appointment, and especially so. since the statute does not -specify in what manner the appointment. shall be made, or that a record of his' appointment shall be made by the magistrate. The appointment was therefore sufficient.
But, although such were not the case, the defendant, nevertheless, waived both the right to be given a preliminary examination and the right to object to any irregularity in the proceeding by not attacking the information, and by entering his plea of not guilty, and entering upon a trial upon such a plea. No doubt it would have been proper, and, all things considered, perhaps better, if the magistrate had made a
The order and judgment aforesaid is therefore reversed.