10 Mont. 537 | Mont. | 1891
The appellant was convicted of the crime of grand larceny in March, 1891, and judgment was entered upon the verdict. The information was filed March 23, 1891, by the county attorney of the county of Deer Lodge, and alleged that the offense was committed September 20,1889. A plea of not guilty was entered, and it is conceded that the ver
A motion in arrest of judgment in a criminal action “may be granted by the court for either of the following causes: First, that the grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; second, that the facts stated do not constitute a public offense.” (Comp. Stats, div. 3, § 357.) The act “relating to informations in criminal cases,” approved March 2, 1891, provides that all laws which are applicable to prosecutions upon indictments, and “to motions, demurrers, amendments, pleadings, trials, penalties, and punishments, the passing or the execution of any sentence, appeals, and to all other proceedings in cases of indictment, whether in the court of original or appellate jurisdiction, shall, in the same manner, and to the same extent and effect, as near as may be, apply to prosecutions by information, and to all proceedings therein, the same as if prosecuted by indictment.” (§ 4.) The Criminal Practice Act contains this section: “A defendant who has failed to demur to an indictment for any of the defects appearing upon its face shall be deemed to have waived the same, except the defects that the court has no jurisdiction over the same, or that the indictment does not state facts sufficient to constitute an offense. These he may take advantage of on 'the trial, or on motion to arrest judgment.” (§ 217.) It is further provided: “An appeal to the Supreme Court may be taken by the defendant, as a matter of right, from any judgment against him, and, upon appeal, any decision of the court or intermediate order made in the progress of the case may be reviewed.” (§ 394.)
The contention on behalf of the State is that the order of the court in denying the motion in arrest of the judgment is not
Was the prosecution of the appellant by information in accordance with the law? The offense of which he has been convicted was committed during the existence of the Territory of Montana. This political organization was created by an act of Congress, approved May 26, 1864, and continued until November 8, 1889, when the government of the State was established. The sixth section of its Organic Act provided “that the legislative power of the Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States and provisions of this act.” The fifth article of the amendments to that Constitution declares that “ no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” Subject to this limitation the legislative assembly possessed and exercised the power to define offenses against persons and property, and regulate the trial of the parties who might be accused of unlawful conduct; but any statute which required prosecutions for a capital or infamous crime to be made by informations instead of indictments would have been without validity. If, therefore, the appellant had been arrested at the time of the commission of this offense, he could have been held to answer only “on a presentment or indictment of a grand jury.” This was then “the supreme law of the land.”
The Constitution of the United States and the Territory of
But the minority of the court in People v. Campbell, supra, maintains, in the dissenting opinion of Mr. Justice Sharpstein, that the provisions of the old Constitution respecting the presentment or indictment of a grand jury “was one of the sub
The investigation by a grand jury of a capital or infamous crime of which a party may be accused has been regarded for centuries as a bulwark of personal liberty. It has been treated in many volumes as a vital substance, and the history of the foregoing amendment to the federal Constitution deserves thoughtful consideration. Judge Story, in his work on the Constitution, says: “But although this provision of a trial by jury in criminal cases is thus constitutionally preserved to all citizens, the jealousies and alarms of the opponents of the Constitution were not quieted. They insisted that a bill of rights was indispensable upon other subjects, and that upon this further auxiliary rights ought to have been secured. These objections found their way into the State conventions, and were urged with great zeal against the Constitution. They did not, however, prevent the adoption of that instrument; but they produced such a strong effect upon the public mind that Congress, immediately after their first meeting, proposed certain amendments embracing all the suggestions which appeared of most force; and these amendments were ratified by the several States, and are now become a part of the Constitution.” (§ 1782.) The eminent author reviews the duties of this body, and concludes: “From this summary statement it is obvious that the grand jury perform most important public functions, and are a gi’eat security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies.” (§ 1785.)
Chief Justice Shaw, in Commonw. v. Holley, 3 Gray, 459, said: “The object of the declaration of rights was to secure substantial privileges and benefits to parties criminally charged, not to require particular forms, except where they are necessary to the purposes of justice and fair dealing towards persons accused, so as to insure a full and fair trial.....The great principle asserted by the declaration of rights is that no man shall be put to answer a criminal charge until the criminating evidence has been laid before a grand jury, and they have found probable cause, at least, to believe the facts true on which the criminality depends.” These assertions concerning the ancient institution of the grand jury, which can be reiterated, show that this has always been one of the grand rights of freemen. The formalities which are its incidents can be amended, but the fundamental privilege Avhich has been declared and protected by the articles of the Constitution cannot be disregarded. In State v. Ah Jim, 9 Mont. 167, this court held that a p>arty could be prosecuted by an indictment which had been found by a grand jury of seven persons, although the alleged offense was committed within the Territory of Montana, when the statute fixed a higher number, and that the substantial rights of the accused were not thereby impaired, and that this ruling) in its consequences, was not ex pod facto. The majority of the court in People v. Campbell, supra, have in our judgment misapplied the authorities on which they relied, and arrived at an erroneous decision in holding the matter one of mere procedure. The prosecution of the appellant by an information gives to the act, supra, of the State a retrospective operation.
The Supreme Court of Washington, in McCarty v. State, 1 Wash. St. 377, decided under the same conditions in accordance with our deductions, but, upon a petition for a rehearing, the following opinion was delivered by Mr. Justice Dunbar: “The
It is therefore ordered and adjudged that the judgment be reversed, and that the cause be remanded, with directions to grant the motion in arrest of the judgment.