23 Utah 507 | Utah | 1901
The defendants were prosecuted by indictment for the crime of grand larceny, and convicted of that offense. Then, upon being sentenced to imprisonment in the state prison, they appealed to this court.
Among other things, they insist that the court erred in denying their motion to set aside the indictment. The motion was based upon the ground that the district, and not the county, attorney was present during the session of the grand jury, while the charge against the appellants was being considered, and advised and consulted with the jurors concerning the same. It is urged that such presence of the district attorney was in violation of section 4772, Revised Statutes, and that, therefore, the indictment was without force and effect,
Tbe disposition thus made of tbe point under consideration does not militate against tbe doctrine of tbe case of State v. Beddo, 22 Utah 432, 63 Pac. 96. We there held that so much of chapter 56, Session Laws 1899, as attempted to confer the power, to sign and file informations in criminal prosecutions, upon a district attorney when tbe existing law or old law made it incumbent upon tbe county attorney to sign and file such informations, was without force and effect, it being an attempt to amend an existing law in a' manner inhibited by tbe Constitution. We held further, however, that, notwithstanding a part of tbe act was unconstitutional and void, tbe portion creating tbe office of district attorney was valid. In this case there is no question as to tbe filing of an information, but tbe question is as to tbe right of tbe district attorney to appear before tbe grand jury, during tbe investigation of a criminal charge, in tbe performance of bis duties according to-existing laws, and therefore the case referred to is not in point, and cannot avail tbe appellants.
Tbe correctness of tbe action of tbe court in overruling tbe appellant’s demurrer to tbe indictment has also been challenged by assignment of error. Tbe demurrer was based on tbe ground that more than one offense was charged. Tbe indictment charges tbe defendants with having stolen twenty mares and three horses, tbe property of different owners, stating tbe names of several owners, and specifying tbe number of animals belonging to each owner, and then follows tbe clause, “All then and there being found unlawfully, willfully, and feloniously did steal, take, and drive away,” etc. While