State v. King

28 Mont. 268 | Mont. | 1903

MR COMMISSIONER, CLAYRERG-

prepared tbe opinion for tbe court.

Information was filed against tbe respondent in tbe district ci urt of Lewis and Clarke county, by which it was attempted to charge him with a violation of official duty, in tbe following language: “[Title of court and cause.] In tbe district court of tbe Eirst judicial district of tbe state of Montana, in and for tbe county of Lewis and Clarke, on this., tbe 7th day of April, A. D. 1903, in tbe name and on behalf and by tbe authority of tbe state of Montana, S. R. King is accused by tbe county attorney of Lewis and Clarke county, Montana, by this information, of tbe crime of neglect of duty as peace officer, committed as follows: That at tbe county of Lewis and Clarke, in tbe state of Montana, on or about the 26th day of March, A. D. 1903, and before tbe filing of this information, tbe said S. R. King, who was then and there a peace officer, to-wit, a special policeman of tbe city of Helena, said county and state,' and while tbe said Si R. King was on duty as snob peace officer, was informed by one R. A. Barret, wbo was then and there a citizen of tbe state of Montana, that an offense against tbe laws of the state of Montana, to-wit, tbe crime of conducting a gambling game, was being committed within tbe.limits of such officer’s jurisdiction, to-wit, at that certain public place known as tbe Capital Music Hall, in tbe said city, county, and state; that tbe said S. R. Ring did, then and there, willfully and wrongfully fail, neglect, and refuse to immediately and expeditiously, or at all, proceed to tbe said Capital Music Hall, or to tbe place where said alleged offender or. offenders were to be found; all of which is contrary to tbe form, force, and effect of tbe statute in such case made and provided, and against tbe peace and dignity of tbe state of Montana. Lincoln Working, County Attorney of Lewis and Clarke County, Montana.”

Respondent interposed a demurrer to such information upon three separate grounds, viz.: (1) That tbe facts stated do not constitute a public offense; (2) that tbe Act of the Legislature under which tbe information was filed violated tbe Constitution of tbe Hnited States; (3) that such Act violated tbe Constitution of tbe state. This demurrer, after argument, was sustained generally, tbe respondent discharged, and bis bond exonerated. From this action of tbe court tbe state appeals.

It was conceded by counsel for both parties, in their briefs and in tbe argument, that tbe information was filed under tbe provisions of House Bill 345, enacted by tbe last legislative assembly (Laws of 1903, Chapter CXI), and its sufficiency must therefore be tested by tbe provisions of that Act, and none other. So much of this Act as is important to tbe consideration of tbe questions involved in this appeal is as follows:

“Section 1. It shall be tbe duty of every sheriff, under-sheriff, deputy sheriff, constable, city marshal, chief of police, city detective, policeman, or other peace officer, upon being-informed by any citizen of this state that any offense against tbe laws of this state is being committed, or is about to be committed, by any person or persons, within the limits of such officer’s jurisdiction, to immediately and expeditiously proceed to the place where the alleged offender or offenders are to be found, in company with the informant, if he so> requests, and to arrest such offender or offenders wherever they may be found.”

The first question is whether the information states a public offense, under the terms of the above Act. We find upon examination of the Act that it attempts to impose an official duty on the part of peace officers, and provides a punishment for neglect or violation of the same. What is the duty thus imposed, and is a violation of such duty: alleged in the information ?

A careful reading discloses that the Act seeks to impose the duty upon peace officers^ when “informed by any citizen of this state that any offense against the laws of this state is being committed or is about to be committed, * * to immediately and expeditiously proceed to the place where the alleged offenders are to be found,” and to arrest them.

It is perceived that the duty is not alone to proceed “immediately and expeditiously to the place where the alleged offenders are to be found,” but also to arrest them. Were it not for the insertion of the words “immediately, and expeditiously” the only duty imposed would be the arrest, because of.-the impossibility of making an arrest without going to the place where the offenders are to be found. These words evidently were inserted only for the purpose of compelling prompt action on the part of the officer.

Counsel for the state argues that this Act imposes three several and distinct duties upon peace officers, as follows: “(1) Upon receipt of the requisite information, to immediately and expeditiously proceed to the place where the alleged offender or offenders are to be found; (2) to proceed in company with the informant, if he so requests; (3) to arrest the alleged offender or offenders wherever they may be found.” We cannot agree with counsel’s contention. We are firmly of the opinion that the purpose of the statute is to provide for the arrest of the offender, and the making of such arrest is the ultimate duty imposed. Tbis duty consists of several steps or acts, and these steps or acts are each and all parts and portions of this ultimate duty. None of them are separate or distinct duties in themselves, and therefore a violation of one or more of them, except possibly the final one, can be punished only upon an alleged violation of the duty to arrest. The public offense declared by the statute is the violation of this ultimate duty.

It appears from the information that the violation of duty charged is “that the said S. E. King did then and there willfully and wrongfully fail, neglect, and refuse to immediately and expeditiously, of at all, proceed to- the Capital Music Hall, or to the place where said alleged offender or offenders were to be found.” This is not sufficient, because it only charges a violation of one of the steps preliminary to the ultimate duty.We are therefore clearly of the opinion that the facts stated in the information do not constitute a public offense, and that the demurrer was properly sustained.

We shall not consider the questions raised as to the constitutionality of the Act. It is well-settled law that a court will not pass upon the constitutionality of any Act of the legislature unless it is absolutely necessary to a decision of the case. It is not necessary here, and we do not even intimate an opinion upon this question.

We are of the opinion that the demurrer was properly sustained, and that the judgment of the court below should be affirmed.

Pee Cubiam. — For the reasons stated in the foregoing opinion, the judgment of the lower court is hereby affirmed.