22 Mont. 425 | Mont. | 1899
Defendant was jointly informed against Avitn Yellow Hair, Spotted Hawk, and others for the murder of John Hoover at Custer county, on May 1, 1897. The information herein being the same under which Spotted Hawk, upon separate trial, was convicted of murder in the first degree, as set forth and considered in our opinion in State v. Spotted Hawk ante, p. 33, 55 Pac. 1026. This defendant had a separate trial. A. verdict of guilty of murder in the second degree was rendered against him, and thereafter, on December 1, 1897, he ivas sentenced to prison for life. He appeals to this Court from the judgment only, without a bill of exceptions or statement reciting the evidence. Being limited, therefore, in our examination, to but a few propositions which the appeal raises, we briefly refer- to them seriatim.
1. It is forcibly contended that the prosecution by information was without authority of law.- In his brief upon this point, appellant’s counsel dwells upon the unconstitutionality of the powers vested by the Constitution and laws of Montana (Const. Art. Ill, Sec. 8, and Criminal Code) in the district courts and the county attorneys of the several counties of the state to allow and conduct prosecutions by one of the two forms — information or indictment. He says that, if there-were a provision of the Constitution attempting to prescribe who shall be prosecuted by indictment and who by information, it would be in contravention of the fourteenth amendment of the Constitution of the United States, and from that assumption — which, for present purposes, we may accept
These propositions rest upon this principle: It is not an infringement of the constitutional rights and immunities of the citizen of the United States for the state to exert its power by adopting any system of judicature it sees fit, provided it keeps itself within what Justice Matthews, for the Supreme Court of the United States, called “the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the rights of the people to make their own laws, and alter them at their pleasure.5 ’ (Hurtado
The formalities precedent to filing an information afford security to the citizen by the guaranty of either the preliminary hearing or the leave of court, — formalities and restrictions deemed and doubtless truly as ample in their security as those afforded by inquisition through a number of citizens impaneled and sworn as a grand jury; hence no injustice is done by adopting the one method of prosecution rather than the other. Upon the ground, therefore, that information is the mode chosen, the defendant has no cause for complaint.
2. Nor do we think that a defendant’s presence, when leave to file an information is obtained, is necessary. The application for leave is but a preliminary step towards making a charge. It is in itself no charge; it does not authorize an arrest, or raise an issue to which defendant is expected to reply. The object is security against oppression by the reservation of the check of judicial action. No one ever heard of the defendant’s presence being insisted upon under such circumstances. Indeed, how could it be ? The defendant is often
3. It is next said that defendant is a Cheyenne tribal Indian, over whom the District Court in and for Custer county had no jurisdiction in the matter of the crime charged. This point was settled adversely to the appellants in State v. Spotted Hawk, supra. It is unnecessary to discuss it again.
4. The court granted leave to file an information upon a petition stating the name of the deceased as William Hoover, whereas his name was John Hoover. Defendant did not raise the question of this variance in the district court, and is not in a position to have it considered here. It is argued he could not waive his right to object. We hold otherwise. It is of far less importance to him than the information itself to which he must plead, yet he may waive a verification to that, as he may waive many other rights of far greater significance than a mistake in a name in the petition filed asking leave to file an information. (State v. Brantly, 20 Mont. 173, 50 Pac. 410.)
5. It is also said that “the trial proceeded against defendant upon his motion to quash while he was absent from the court. ’ ’ This question was likewise presented in the Spotted Hawk case, where it was held that by a trial in criminal proceedings is meant proceedings in open court after the pleadings are finished, and the case is otherwise ready, and that the trial continues until after the rendition of the verdict. We affirm that ruling without repeating the reasoning for it.
This disposes of the main points urged in appellant’s brief.
Affirmed.