146 P. 300 | Utah | 1915
On the 31st day of May, 1913, a complaint under oath was duly filed before one J. S. Cooper, a justice of the peace in and for Juab County, Utah, in which it was charged that the defendant on the 20th day of April, 1913, in Juab County, “did then and there willfully, unlawfully, and feloniously steal, take, and carry away 100 head of sheep,” the personal property of one A. J. Aagard. The marks and brands identifying the said sheep were also stated in said complaint. A warrant of arrest was duly issued, and the defendant was arrested and brought before said justice, and a preliminary hearing was deferred from time to time until the 7th day of July, 1913. On that day a preliminary examination was duly held before said justice. After the evidence was completed, the defendant filed a motion, in which he asked that the complaint be dismissed upon the ground that the State had failed to prove that the larceny charged, or any larceny, had been committed. The justice reserved judgment until the following day. The transcript of the justice relating tO' the motion, as filed in the district court, reads as follows:
‘ ‘ The motion to dismiss was denied, and the cause was then submitted to the court without argument. In summing up, the court held that, although the charge in the complaint and the evidence as heard were at variance, the evidence disclosed the fact that a crime had been committed. The court ordered that the defendant be held to answer-to the court of the Fifth Judicial District on the charge of having changed -the earmarks of the sheep mentioned in the complaint with intent to steal the same.”
“It appearing to me that the offense of changing marks on certain sheep with intent to steal the same has been committed and there is sufficient cause to believe the within named Matthew Pay guilty thereof, I order that he be held to answer the same. J. S. Cooper, Justice of the Peace.”
The transcript of the proceedings had before the justice was duly filed in the district court of Juab County, where, on the 15th day of August, 1913, the district attorney filed an information based on the foregoing return of the justice, in which the defendant was charged with the crime of ‘ ‘ altering marks on sheep with intent to steal the same,” in the following words:
‘ ‘ That the said defendant, Matthew Pay, on the 20th day of April, A. D. 1913, in Juab County, State of Utah, did then and there willfully, unlawfully, and feloniously alter the earmarks on one hundred head of sheep, said sheep being marked with a slit and upper bit in the left ear and with an underslit in right ear, and being then and there the personal property of one A. J. Aagard, by then and there cutting the ears of said sheep so as to alter and deface said earmarks, with the specific, unlawful, and felonious intent thereby to steal said sheep; contrary, ’ ’ etc.
The defendant, before pleading to the information, in proper time and form, filed a motion to set aside or quash the information upon the ground, among others, that the defendant was neither given nor had waived a preliminary examination upon the charge contained in the information filed by the district attorney. The motion was based upon the record as we have given it, which was supplemented by the affidavit of the defendant. The court denied the motion and compelled the defendant to go to trial. He made timely and proper objections to the jurisdiction of the court for the reasons before stated, all of which were overruled. The defendant offered no evidence, and the jury returned a verdict of guilty. He filed a motion in arrest of judgment for the reasons already stated, which was also overruled. The court
The defendant contends that-under our Constitution and statutes the information must substantially charge the crime stated in the complaint, or one which is included or embraced within it, and further contends that in ease the crime charged in the information is not the one stated in the complaint, or one that is included therein, the district court cannot, over the objection of the defendant, legally proceed to try him for the offense charged in the information. To support their contention, counsel for the defendant cite and rely on People v. Wallace, 94 Cal. 497; 29 Pac. 950; People v. Christian, 101 Cal., 471; 35 Pac. 1043; People v. Howard, 111 Cal. 655; 44 Pac. 342; and 12 Cyc. 305. In Cyc. it is said:
“The information therefore can only be for the offense upon a charge of which the accused has had a preliminary examination or for an offense included within such charge.”
Upon the other hand, the State contends that the magistrate before whom the original complaint is filed may require the accused to appear before the district court for trial for any offense of which the magistrate, from the evidence adduced, finds there is probable cause to believe the accused guilty, whether such offense was charged in the complaint or not.
In our judgment the only eases where the doctrine is held as broadly as is contended for by the State are People v. Wheeler, and State v. Newton, supra. People v. Wheeler was, however, squarely overruled by the Supreme Court of California in the ease o f People v. Christian, 101 Cal. 475; 35 Pac. 1043. In that case it was also held that what was said upon the subject in People v. Staples, supra, was merely obiter dicta, and such clearly was the ease. People v. Christian was approved and followed in the case of People v. Howard, supra. Counsel for the State, however, contend that in People v. Lee Look and in People v. Nogiri, supra, the doctrine announced in People v. Wheeler is again revived. An examination of those two cases, however, discloses that the question was not before the court. True, in the ease of People v. Nogiri it is held that it is the offense which the magistrate, on the preliminary examination, finds was committed, rather than the offense charged in the complaint, which controls the district attorney. It is not held in that ease, however, that the accused may in the information be charged with an offense different from and not included within that stated in the complaint and upon which the preliminary examination was held. It has, however, also been held by the Supreme Court of Kansas that under the statutes of that state the accused may be charged in. the information filed in the district court with an offense other than the one contained in the'initial complaint. But it is also said by the court in that ease that, if the magistrate finds that a different offense was committed than the one charged in the complaint, then an amended or new complaint should be filed, although it is there held that to file such new complaint is not absolutely necessary under the Kansas statute. Redmond v. Kansas, 12 Kan. 172, 176. Michigan cases are also cited sometimes as holding the doctrine contended for by the State. . In Miehi-
Let us now pause for a few moments to examine our Constitution and statutes relating to the initiation of criminal proceedings and for holding preliminary examinations before magistrates.
Comp. Laws 1907, section 4604, defines an original complaint thus:
*418 “4604. A complaint is a statement in writing, made to a court or magistrate, that a person has been guilty of some designated offense.”
Section 4610 provides whát the complaint must state as follows:
“4610. The complaint must state: (1) The name of the person accused, if known, or if not known and it is so1 stated, he may be designated by any other name; (2) the county in which the offense was committed; (3) the general name of the crime or public offense; (4) the acts or omissions complained of as constituting the crime or public offense; (5) the person against whom or against whose property the offense was committed, if known; (6) if the offense is against the property of any person, a general description of such property. The complaint must be subscribed and sworn to by the complainant. ’ ’
Section 4615, so far as material here, provides:
“4615. When a complaint, verified by oath or affirmation, is made before a magistrate, charging the commission of a crime or public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the accused committed it, issue a warrant for his arrest; but when the magistrate before whom the complaint is made is a justice of the peace, before issuing the warrant, the complaint, if made by any person other than the county attorney of the county, and other evidence taken by such magistrate relating to the offense charged, must be submitted to such county attorney, and he must examine into the charge and enter either his approval or disapproval of the issuance of a warrant upon such complaint. If the county attorney disapproves, no warrant shall be issued, but if he approves the issuance of a warrant such magistrate shall proceed accordingly.” ■
The proviso following the foregoing is not material here.
If a warrant is issued and the accused is arrested and is taken before a magistrate, the latter “must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.” Section 4657. Before proceeding with the examination, “the magis
Section 4675 reads as follows:
”4675. If, however, it appear from the examination that a public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must indorse on the. complaint an order, signed by him, to the following effect: ‘It appearing to1 me that the offense in the within complaint mentioned (or any offense, according to the fact, stating generally the nature thereof) has been committed, and that there is sufficient cause to' believe the within named A. B. guilty thereof, I order that he be held to answer the same.’ ”
Section 4692 reads as follows:
“4692. When a defendant has been examined and committed as provided in this Code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the district court of the county in which the offense is triable an information charging the defendant with the offense for which he is held to answer, or any other offense disclosed by the testimony, whether it be the offense charged in the complaint on which the examination was held or not. If the district attorney fails to file the information within the time specified, he shall be deemed guilty of contempt, and may be prosecuted for neglect of duty, as in other eases.”
Article 1, section 13, of ouy Constitution, so far as material here, provides:
“Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the State.”
It is apparent, without comment, that the foregoing provisions are not as harmonious as they could be made. Some of the incongruities may, perhaps, be attributed to the fact that the Code commissioners, in compiling and preparing the Revised Statutes of 1898, in which all of the foregoing provisions are found, took some, of the provisions from one state, others from another state, while others still were modified. It should likewise be noted that the California statutes
We thus start out with the proposition that under our procedure a criminal prosecution must be initiated by filing a complaint in writing which must be verified by the complainant; that such complaint, among other things, must state the general name of the crime charged; that it must state “the acts or omissions complained of as constituting the crime,” the person against whom or against whose property the offense was committed, and a general description of the property if property is the subject of the offense. When a person is thus accused, arrested, and brought before the magistrate, he must be informed of “the charge against him,” and, before proceeding with the examination, the complaint filed against him must be read to him. He must also be informed of his right to have counsel, and time must be allowed him to procure one if he so desires. All this is, no' doubt, required to be done to enable the accused to determine whether he desires counsel, or whether he will waive the examination, or insist upon being given one and have witnesses called in his behalf. It is manifest that, if the accused waives the examination, and the State consents thereto, all the magistrate has authority to do is to require the accused to appear before the district court to answer to the charge contained in the complaint and no other, since it is upon that, and nothing else, that he has waived or has had an opportunity to waive an examination. Let it be assumed, however, that the State refuses to consent that an examination be waived, but insists that the magistrate shall hear such evidence as the State may produpe. Even then the accused may assume that the evidence to be adduced will relate to the charge that was read to him and of which he was required to be informed by the magistrate, and he may thus still waive the right to counsel and the production of evidence in his favor. By what author
‘‘ That keep the word of promise to our ear
“And break it to our hope.”
For-the reasons stated, the judgment is reversed, and the cause is remanded to the district court of Juab County, with directions to set aside its order denying the motion to quash the information and to enter an order granting said motion. Further, if the district judge is so advised, to direct the county attorney to file a proper complaint against the defendant either before the district judge sitting as a magistrate or before some other magistrate, and,, in case the defendant is held to answer to the district court upon the charge contained in the complaint, then proceed with the case in the usual manner.