30 Mont. 472 | Mont. | 1904
prepared the following opinion for the court:
The defendants have appealed from a judgment ag'ainst. them and from an order denying their motion for a new trial.
A copy of the undertaking, which substantially complies with the requireiments of Section 2351 of the Penal Code, is attached to the complaint,'marked “Exhibit. A.” No objection is made to the form or sufficiency of the undertaking.
In Territory v. Hildebrand, 2 Mont. 426, the court said: “While under our statute the jurisdiction of the court taking the recognizance need not be recited therein, nor the proceedings and orders requiring a party to enter into a recognizance for his appearance at court, these facts should appear in a complaint which seeks to recover judgment on such a recognizance.” The i*eeognizanc© required of a defendant under the statute in force when the Hildebrand Gase Avas decided is practically the same as that required of Finch in this case. The Avord “recognizance,” as then used, is practically synonymous Avith'the Avord “undertaking,” as noAv employed. The doctrine of the Hilde
The complaint before us does not show that the court had jurisdiction to- make the order holding the defendant to answer, nor that the order was duly given and made. The allegation that the justice had full power and authority to- accept the bond does not in any wise cure the defect. The complaint is simply a mass of recitals. It states “that whereas- an order having been made,” and so forth. This is far too short of the statutory requirement. It does not even state that the order was “duly”
The reason for the rule that the jurisdictional facts must be pleaded, either directly or by the statutory method, is that neither the inferior court’s jurisdiction nor the regularity of its proceedings is presumed, and, in order to prove the liability of the sureties upon the undertaking, it must be shown to be a valid one. Hence it is necessary to show that it was required of the accused by a court having jurisdiction of the offense proceeding under due form of law. While it is true that the consideration for the bond is the release of the accused from custody, yet, if the bond be not lawfully required of the accused, it is nudum pactum.
Defendants further say that the complaint is insufficient because it does not state that the undertaking was filed in the district court. This point is not well taken. If the magistrate had failed to comply with the statute in this regard, the sureties could not take advantage of it. (State v. Wrote, 19 Mont. 209, 47 Pac. 898.) However, we note that the complaint fails to
The complaint is also fatally defective because it fails to. state that, the amount due the plaintiff by the terms of the undertaking has not been paid.
Section 2350 of the Penal Code provides: “When the defendant has been held to answer upon an examination for a public offense, the admission to bail may be by the magistrate by whom ho is so held, or by any magistrate who has power to issue the writ of habeas corpus
Defendants say that the words, “is so held” limit “the exercise of the power of admitting to bail to cases then pending before such justice, or in some manner1 retained within the jurisdiction of the justice taking the bail.” The words “is so held” (must be construed with the words “has been held.” The latter are in the past tense. The bail where a defendant is held to answer may not be required until the order holding him to answer has been made-. Then the magistrate who made the order, or one who has the power to issue the writ of habeas corpus, may admit the defendant to bail. No one else may do so. Thus no other justice of the peace than the one who made the order may step in and admit the prisoner to bail. But the magistrate who committed hilm can, and we regard this section as an extension of the committing magistrate’s jurisdiction to that ex
If defendants are7 correct in their contention, a magistrate 'might make an order committing a. defendant to jail until he should give bail in a certain amount, the magistrate might forthwith make his return to the clerk of the district court (Penal Code, Sec. 1693), and before the prisoner could procure the bail, and then the defendant could not be released from custody except, upon the order of the district, judge or a justice of the supreme court. In all of the judicial districts in the state except- four, the district- judge is at all times absent from some of his counties. The plight in which a prisoner might find himself in such case is apparent. No. such hardship was intended by the statute in question. When the committing magistrate has Imade his returns to the clerk of the district court, we. think he nevertheless still has power and authority to accept and approve the bail undertaking which is required by his order until the district court, obtains final jurisdiction of the entire matter upon the filing of an information or the presentment of an indictment against the prisoner, or until a district judge or justice of the supreme court has fixed anew the prisoner’s bail. The evidence objected to1 should have been excluded only upon the
Section 1130 of The Penal Code provides: “When the defendant has been examined and committed, or admitted to bail as provided in this code, or upon leave of court, the county attorney must, within thirty days afte'r the delivery of the complaint, warrant and testimony to the- proper district court, or after such leave, file in such court an information charging the' defendant with the offense, for which he is held to answer, or any other offense disclosed by the testimony. In case the county attorney fails to file the information within the time specified
It was held in State v. Smith, 12 Mont. 378, 30 Pac. 679, that the failure of the county attorney to comply with the statute in this regard must be taken advantage of by the defendant by motion to set aside the information, and this must be done prior to demurrer or plea. If not so taken advantage of, the irregularity is waived. When the county attorney, upon leave of court, filed an information against Finch, it was obligatory upon the latter to appear for arraignment under the terms of his undertaking, and he could then have taken advantage of the irregularity, or waived it, as he might, have been advised. The negligence of the county attorney in this respect cannot aid the defendants.
Section 2354 of the Penal Code, provides: “Upon the allowance of bail and the exeucution of the undertaking, the magistrate must, if the defendant is in custody, make and sign an order for his discharge, upon the delivery of which to the proper officer, the defendant must be discharged.”
This, section contemplates that, when the bail is given, the prisoner shall be discharged. The two points aimed at are securing the bond and releasing the prisoner. The intermediate steps are merely directory. An oral order of release given by the magistrate to the officer who has charge of the prisoner is a sufficient compliance with the statute so far as the prisoner and his sureties, are concerned, although it shows a neglect of the statutory formalities by the justice which is far from commendable. If anything more is necessary, the prisoner and sureties cannot take advantage of it. The Supreme Court of California
The evidence solicited was clearly incompetent. It is not permissible to prove insanity by reputation. Even so, it does not appear what relevancy his sanity bore to the issue. It was not jdeaded that Pinch was insane, but that he was dead. It may be that counsel for defendants saw, or thoiight they saw, some connection between Pinch’s alleged insanity and his attempts at suicide, for the nest question asked the witness was, “Do you know of Mr. Pinch ever having attempted to- colmmit suicide ?” The answer was in the affirmative, the witness saying, “To the best óf my recollection, it was in the summer of ’84,” and “a year or two later than that he attempted to take his life the second time.” This testimony was stricken out, on motion of the county attorney, “as being too- remote from the 24th day of June (1901), and as incompetent, irrelevant and immaterial.” The court’s ruling was correct. The evidence called for was, in any view, wholly immaterial.
Defendants then offered to prove “the following circumstances as tending to prove the death of James Pinch: That
We are of the opinion that the judgment and order should be reversed, and the cause remanded for a new trial.
For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause is remanded for a new trial.