Stockwell v. State

P.2d STOCKWELL, Michael Jerome

Petitioner-Respondent, Idaho, Defendant-Appellant.

STATE

No. 12118. Idaho.

Supreme Court of

Dec.

Wayne Kidwell, Gen., Atty. Lynn L. E. Thomas, Gen., Boise, Deputy Atty. for de- fendant-appellant.

Peter D. McDermott of McDermott & McDermott, Pocatello, petitioner-re- spondent.

BAKES, Justice. This is an appeal granting from order petition for Michael Jerome Stockwell’s corpus.1 procedural If the writ habeas irregularities overlooked, on both sides are to raise appeal by attempts state (1) magis- following issues: whether a hearing reduce preliminary trate in a case, County petition Court Civil 1. The was titled the criminal Bannock District No. Idaho, Plaintiff, “State of Stockwell, Defendant, v. Michael Jerome ” but was filed in Miller never gun evi- a moment later told complaint when the held the pull again, knife on him then in a presented dence shots, two close to Miller and fired sustaining supporting gun capable of inferences lunged what which hit Miller. Miller complaint; (2) under neither of charge in the attorney and Stockwell kicked forward at Stockwell can the circumstances shot, this reopened to him fired another one hearing at and preliminary have a killing him. supporting hitting the Miller the chest and evidence submit additional Miller, attempted to resuscitate (3) what circumstances Stockwell charge; under felony file second his were to avail. a case a but efforts a following his dismissal complaint criminal at were called the Four other witnesses pro- of a first criminal prejudice without One, hearing. pathologist, in which the ceeding charge for the same the of Miller’s death that cause testified the de- committing magistrate has bound Another, the gunshot wound. ambu- was a on a reduced over to district court fendant had answered the lance attendant who questions presented These are charge. call, testified that a blood sam- emergency following the factual context. was and ple taken from the decedent later the analysis re- that decedent’s blood the defendant showed On October sample per- had an alcohol content of .266 shot spondent Michael Jerome Stockwell testify The other two witnesses to while he was cent. and killed Robert Miller police following were detectives from the Pocatello home. guest in Miller’s On department who investigating police officer filed had answered initial day, an reporting shooting. None of these complaint charging call Stockwell degree testimony witnesses’ concerned On October degree. murder in second intoxication either before or was held in of Stockwell’s preliminary hearing shooting. of court. after magistrate’s division the district who was hearing, Gary Drzymolski, At that and testimony argu- After this and Mil- of both acquaintance Stockwell counsel, magistrate said the ment shooting, to the testified ler and a witness following: following scenario. to the things] of the that me is bothers “[One met at Miller’s Drzymolski and Stockwell a .266 . the fact that the deceased had of approximately day Drzymolski noon on the house at content. Mr. blood alcohol shooting replace pump water on to were all three drunk. they testified that three remained in one idea of the capacity Miller’s car. The I have no of them, I of the or either one of but company throughout another’s most defendant period beer evening day. During of know 20 bottles of over afternoon and that they great time, m., time, that’s what did is p. noon 9:00 of if between alcohol, equal an amount to shooting, ap- consumed deal of it’s they time of the whiskey I fifth least. beer. almost a of proximately twelve-packs five of make an error suppose the court could shooting, the three before the Sometime (inau- going I’m if errors in Mil- the court to the recreation room them retired dible) this mat- of the defendant on contin- half ler’s to listen to the stereo and home ” Clk.Tr., time, p. . . . drinking By Drzymolski ter. ue beer. this “really drunk and from the actions anticipating point prosecutor, At this say they I were guys two other to reduce the intended was.” just as drunk as I from second de- charge Stockwell against manslaughter, per- asked gree murder they were all in the recreation While the case: reopen the court mission of room, knife and slit Miller unsheathed a reopen time to at this would ask “I pants up from Drzymolski’s three inches on the a conclusion to make going bottom, did same court then later he moments have two I because witness ability this pants. thing to defendant Stockwell’s ability of testify to the can witnesses Stockwell, according Drzymolski, pulled the person involved who were there be- On Friday, m., November at 5:00 p. ability their to maneuver forehand Stoekwell, through attorney, filed the their position maintain even to petition for writ of corpus habeas in the testimony eye be- witness. And (District district court Court Case No. pronounces fore the court any decision 34012) seeking his discharge custody permission this matter I would ask for ground on the that the actions the prose- reopen any question if there is in the cutor in dismissing the first criminal pro- mind as to the properness ceeding in which he had been bound over charge.” Id. the lesser charge voluntary manslaugh- prosecutor’s denied the mo- ter and refiling then the same second de- that, reopen ground on the far tion “as gree murder inwas violation of due as I’m concerned both sides have rested process under the federal and state Consti- arguments have been made.” Id. The tutions, and in violation of 5.1(a) Rule magistrate then bound the defendant over (b) of the Idaho Rules of Criminal Proce- a charge to the district court on of volun- transcript dure. The indicates that the dis- tary manslaughter and reduced his bond judge trict signed the order for writ of $50,000 $15,000. from corpus 8, habeas Saturday, on November Up point proceedings to this were hearing The 1975. on the corpus habeas then, fairly straightforward. But on Octo- matter was held the following Monday, No- 30, 1975, day ber the afternoon of the same 10, 1975, p. vember at The 4:00 m. record preliminary hearing, of after discus- prosecuting attorney indicates that the was about the of the charge sion dismissal corpus proceedings aware the habeas judge, prosecutor upon the district own motion and without notice to Stoekwell until the day hearing of the when he was his attorney filed a motion in the district apparently served with the order and the the charge against court to dismiss Stock- writ. The does record not indicate that the well, “without prejudice the interests sheriff, who apparently custody, had was justice.” prosecut- The by motion filed ever served. The record does not indicate ing attorney cryptic, “It so contained a whether an a return the writ or answer ordered,” typed on the bottom thereof return, contemplated by signed.2 which the district et seq. 19—4201 was ever filed.4 at- day, apparent On same At the at hearing held on November mag- tempt ruling circumvent the of the m., p. by 4:00 no evidence was submitted reducing against Stock- istrate petitioner on behalf of his claim. The degree murder to volun- well from second prosecuting attorney advised court tary manslaughter, a criminal second com- brought he had the defendant into court as charging Stoekwell with second de- plaint3 ordered, and the entire hearing consisted of murder was sworn out. Stoekwell was gree a colloquy between the prosecuting attor- complaint, arraigned re-arrested ney on the one hand and the defendant’s a different who before reset $50,000 counsel on the colloquy at and set new other. That preliminary bond was November 1975. primarily concerned propriety with the judge “expressed misgivings prosecuting attorney apparently 2. The district con- 4.The at had cerning papers such action the re- most a few [the hours to read the which charge] again suggested arrange duced but were served on him and to have by p. Monday. Prosecutor research the matter and he still Stoekwell court 4:00 m. that signed plead- The wished the Order he be failure of the record to accom- disclose ings ordinarily accompany at modated.” Clk.Tr. 68. should a ha- corpus proceeding beas makes the function However, this Court more difficult. view of complaint proceeding 3. The in the first criminal petition the manner in which the was filed and magistrates in the court was filed as Bannock petitioner, by served and handled County Magistrates No. 8188. Case court, hardly the blame be can attributed to the complaint second No. Case 8219. state. prayer “Petitioner’s for relief is GRANT- parte ex dismiss- attorney’s ED and the Motion to Dismiss and Order in which proceeding criminal of the first al of Dismissal affirmed. The Sheriff of over to the had been bound defendant Idaho, hereby County, Bannock direct- manslaughter, voluntary court for custody.5 Petitioner ed to release criminal com- filing the second and then “IT ORDERED. degree for the IS SO plaint for second murder in the November, which was contained identical crime day “DATED this 20th complaint. first 1975. “[Signed]_ the district On November Clk.Tr., Judge” p. “District decision and a memorandum

entered appealed. The state has We reverse. which, things, among other said following: I (1) Although had addition- The first issue which must addressed present witnesses al the order entered appealability showing of the made no hearing, he had court. the district expected to elicit evidence he nature The order entered the district court is witnesses; from those easily categorized purposes of deter- did not contend (2) mining right bring statutory state’s to evidence not available newly discovered had 1, appeal. See If supra. footnote the time of the first to him granting order is considered to be the aof (which apparently court must petition corpus by ordering for habeas only circumstance felt was petitioner, of the which it release no doubt filed); complaint could be which another be, appealable it is was intended under and, judgment 13-201 as “a final in an § by prose- special

(3) procedure proceeding followed action commenced Blades, refiling In re an action and court.” 59 Idaho dismissing cutor [district] 682, (1939). 86 P.2d See also Coffelt v. process due violence Stockwell’s did State, (1968). 235, If 92 Idaho 440 P.2d 355 provided was not rights and dismissing the it is considered an order Procedure. of Criminal Rules probably complaint, second criminal it was court concluded that The district ap- to dismissal on demurrer and analogous grant Peti- no alternative but to “left with 19-2804(1). pealable under I.C. prayed the relief for.” This tioner decide, however, how cryptic order attached We need by another done decision, categorized purposes which be memorandum this order shall end of the governing appeal of the statutes because follows: read as Complaint Degree apparently refile a second of Second has misunderstood 5. The state against meaning portion order which Murder the defendant on the same of that of the circumstances, reads, facts and denies said defendant . and the Motion to Dismiss “. . affirmed,” contrary thinking process that due of law and is to funda- and Order Dismissal Clk.Tr., p. 49. At had dis- mental fairness.” the hear- the district that statement ing Corpus, complaint Petition for Writ of Habeas which on the the second criminal missed presumably magistrates and also on this Motion to Dismiss Case had been filed prosecuting attorney sug- Prejudice, With the time that Stockwell filed 8219. At No. Corpus gested to the court that if had been in error he also filed Writ of Habeas Petition for refile, pleading first to dismiss the action and then that court case No. 34012 a in the district permitted proceed- Prejudice” the first he be to reinstate With “Motion to Dismiss entitled ing had reduced to of dismissal which volun- that the order which he asked tary manslaughter, proceed and on the matter volun- in the above entitled entered “hereunto tary charge. 20, manslaughter [Magistrates No. statement Case on October 1975, order, 20, judge’s charge 8188], dis- the district November in that such be be amended . to Dismiss and Order prejudice; Prose- “. . Motion to allow the that missed with affirmed,” voluntary manslaughter apparently a of Dismissal denial to dismiss the cutor prosecuting attorney. request by prejudice of this at the same time without plenary appellate jurisdiction this Court has First, the overriding concern “in a under Art. of the Idaho Constitution criminal prosecution is . jus court, any to review decision of tice shall be done. . . . twofold [T]he party bringing appeal even if the has aim of justice system] [the statutory appeal the decision. right guilt escape shall not or innocence suffer.” Lewis, 96 Idaho 536 P.2d 738 State Berger States, v. United 78, 88, 295 U.S. (1975). In we Lewis exercised this authori- 629, 633, S.Ct. 79 L.Ed. 1314 In our points in the ty clarify important con- opinion, the defendant’s right pre- fair kidnapping rape struction of stat- liminary hearing would not have been com- errors of the prevent utes and to further promised had been allowed charges being kind which led to criminal to reopen the preliminary hearing to call improperly dismissed in that case. In this additional witnesses whose testimony would again presented important case we are be relevant to the question of whether or concerning questions the construction not the defendant was intoxicated to such a Idaho’s and its criminal rules Constitution degree that he could not have been able to questions we note are statutes — form the necessary intent to commit mur- nature, Shaud, recurring see Rufener procedures der. The to be followed in a (1977), 573 P.2d 142 98 Idaho and the preliminary hearing are not so formal that practical of which will im- resolution if magistrate has decided that the evi- portance in the administration of the crimi- dence which the thought was justice system in this state —which must nal adequate probable to show cause was not prevent pro- be resolved to future criminal sufficient convince the ceedings being improperly dismissed there was probable cause the mag- or reduced erroneous rulings lost or all forfeited to introduce addi- judge. Accordingly, istrate or district we tional evidence issue even when choose to review the decision of the district he has additional witnesses who were power appellate court under our of plenary present and testify available to and can review granted by Art. without § proceed to introduce additional evidence statutory right reference to the state’s of delay. without contrary, On the in this appeal. prosecutor circumstance where the magistrate differed in their assessment of

II whether the evidence was sufficient to probable concerning show cause THE OF THE one ele- DECISION MAGISTRATE prosecutor ment of the crime where magistrate A. The argues state that the had other witnesses available to offer addi- by refusing prosecutor erred to allow the to element, tional evidence concerning that reopen preliminary hearing and call ad- magistrate abused his discretion re- ditional witnesses. Neither the statutes nor fusing to allow prosecutor reopen to the Rules of Criminal Procedure set forth case. calling preliminary rules for of witnesses at hearings magistrate’s or detail the authori- ty testimony to decline to hear from addi- Ill present

tional witnesses who were or to prevent prosecutor a reopening his THE DECISION OF THE DISTRICT present case to allow him to evi- additional COURT concerning of dence an element the crime. The are following among the factors Accordingly, the propriety we must decide the district court considered in critical magistrate’s according gen- of the action reaching its decision: principles governing eral of criminal law proceedings parties’ (1) which magistrate substantial When the declined to al- determined, rights finally are not but mere- low the reopen case ly preliminarily presentation examined. of additional evidence at the offense, judgment acquittal, without apparent was not hearing, it preliminary it not of- acquittal is the same hoped produce; he evidence kind of what added). (Emphasis fense.” compromised had (2) The provision is applicable This also preliminary rights at the prosecution’s brought information rather proceedings hearing; I.C. 19-1303. I.C. § than indictment. See refiling of and the (3) dismissal provides following: 19-3506 § Rules for in the provided were as bar.— “19-3506. Effect of dismissal and therefore Procedure Criminal action, for the dismissal of the An order of the Rules in violation refiling was chapter, any is a provided bar Procedure; and, Criminal offense, for the same if prosecution other refiling of (4) dismissal misdemeanor; bar if but it is not a process due charges violated Stockwell’s felony.’’ add- offense set to stand if allowed rights and ed). pros- allow that would precedent dangerous Thus, contem- specifically 19-1717 § rulings aof adverse to circumvent ecutors a proceeding against plates a dismissal hearing. preliminary at the bring higher charges in order to defendant those assessments disagree We specifically and I.C. 19-3506 against him shown already As we have this case. the first not bar dismissal provides p. 119 transcript quoted at portion if the offense in- prosecution to second that the supra, the had indicated Thus, felony. is a none of Stock- volved subject of the additional evidence matter rights the statutes of Idaho well’s under to introduce at wished filing. violated the second were physical im- hearing concerned Stockwell’s Idaho Rules Criminal Neither do the intoxication, which was pairment due to necessarily prevent and Procedure Practice of his certainly impairment relevant to the 48(a) provides that refiling. I.C.R. faculties, magistrate erred and the mental attorney “may by leave failing reopen allow the complaint. of a court” file proceeding. 19-3506, provides 48(b), like I.C. I.C.R. “will the inter- serve that a dismissal A justice” bar to a second is not a ests of specifically The statutes contem felony. the offense prosecution complaint may that a second criminal plate refiling Thus, are not the dismissal and felony following dismissal be filed case by statutes or the either prohibited first criminal action. I.C. 19-1717 of the § of this state. The motion for criminal rules provides: attorney by prosecuting dismissal filed that the motion for dis- acquit- specifically is not former stated

“19-1717. What in the formerly prejudice “without defendant was ac- missal was tal. —If the court’s justice,” and the district ground of variance be- interests of quitted on the stated, “It so ordered.” proof, and the order the indictment tween corpus proceeding in the habeas upon was dismissed order the indictment substance, first or- again affirmed that or in district court objection to form or its Under these circumstanc- dismissal.6 higher defendant der of to hold the order provided. The statement court order on the habeas of the 6. At time corpus request- judge’s attorney order of Novem- prosecuting district habeas corpus, was 20, 1975, re- that he denied the ing ber indicates the first to reinstate the court parties, 8188, quest permit and let the order of dis- of both proceeding, the state No. 8188, prejudice in voluntary manslaughter No. stand. missal without go on the to trial arguing that charge, was the defendant while court more This action of district set in No. 8188 not be of dismissal the order argument passing in view of the than interest prejudice with rather be made aside but should Bistline in his dissent Justice made original prejudice district as the without than judge did that because the effect 804

es the to refile was not the arresting Additionally, officer. clearly protected. court held that judge the trial should have set out the reasons for the dismissal in the opinion dissenting Justice minutes. The court then “reversed” the strongly upon language Bistline relies decision of the trial court on grounds, both requires of I.C. 19-3504 which that when § thus (not reinstating terminating, inas this upon ap the court dismisses the action case) the criminal proceedings. plication prosecuting attorney, “the reasons of the dismissal must be set forth in In the other case relied upon in the dis sent, an order entered the minutes.” Ad People Orin, v. supra, the trial court mittedly, had, the motion of the at objection over the of the prosecuting torney out no grounds set other “in attorney, than dismissed the first two counts of justice,” the interests of and the record the information when the plead defendant entry setting contains no minute ed guilty out ato third count. The trial court required court’s reasons for the dismissal as set out no reasons in the minutes as re quired 19-3504. While the district the California statute which is erred, argues, the dissent substantially the same as our I.C. 19- failing set out the reasons for dismissal The record showed that the trial minutes, in the it does not follow that court was making “plea bargain” for the order is thus People prosecutor, void. The cases of over his objection. The case Orin, 937, 65, 13 Cal.Rptr. Cal.3d 533 was appeal on direct by the state from the (1975), P.2d Lake City Salt Han of dismissal. The court did say what son, 32, (1967), dissenting Utah 2d 425 P.2d 773 opinion post thé quotes, at MO- dissent, upon by certainly relied following: do not but also said the so hold. “While it probably true that dismissals under section 1385 are frequently ordered

In the City city Salt Lake case the on mere ‘grounds’ (i. e., statements of ‘in brought proceeding comparable to a com- justice’) furtherance any without certiorari, mon law writ of to appeal the reasons, statement of ap- situation dismissal complaints seven pears in a light different People when the charged City violations of a Salt Lake ordi- oppose the dismissal and raise the issue nance. The had dismissed com- appeal. plaints they because were signed by police officer, officer arresting other than the “As the court People said in v. Curtiss only by signature. then (1970) facsimile Cal.App.3d 84 Cal.Rptr. city argued only that not was recognize 109: ‘We throughout erroneous, but the trial court had the state dismissals occur every day failed to out his set reasons in the court wherein the minutes do not set forth the Supreme minutes. The Utah defendant, Court held reasons. A for example, particular first officer’s facsimile charged with four counts burglary, signatures on complaints pleads were in com- guilty count, to one the district law, pliance though Utah even attorney moves to dismiss the remaining “fatally defective,” post necessary findings required by make the No. 8188 was at 136- at 137, 19-3504 the time that he jurisdic- entered and that the district court lacked dismissal, dismissal, post that the dismissal is of no force tion to enter such an order at then, Presumably, 135, and effect. the first criminal that therefore district court erred in case, 8188, pending corpus petition granting would still the habeas No. be on the because the voluntary manslaughter charge. point this On proceeding pending first would still have been appear siding defendant, against it would 20, that Justice Bistline and November prosecuting attorney requested 1975, with the who legally he would have been detained. action, that the order of dismissal of the first dissenting opinion Given that rationale it 8188, proceeding be set aside and that No. is difficult to understand how the dissent can necessarily It would also seem to reinstated. argue granting nevertheless favor if, dissenting sug- opinion follow that corpus petition. the habeas gests, the first the order of dismissal of action

805 grants authority permitting are and defendant three counts reasons in specifying the argue without to that motion Stockwell district court however, case, it In such a the minutes. in failing erred to set out the reasons for he is own case which prosecutor’s is the the dismissal in the minutes and doing he is in so moving to dismiss and same time assert the dismissal should De- responsibility. his acting upon own not be set aside as the had re- harm is procedure, no spite the defective prejudice.” quested, but should be “with obviously done because argued Had the defendant Stockwell of dis- appeal from the order would not the failure set out to the reasons for dis- ” 198, n. 10. 533 P.2d at missal.’ grounds missal in the minutes was for set- may be 1385 under section “Dismissals ting aside the dismissal the first action before, during and after trial. proper action, reinstating then the Salt (Howard), su Superior v. Court (People City supported would Lake case 330, 491, 503, Cal.Rptr. 72 pra, 69 Cal.2d However, case, neither that nor argument. trial, such dismiss 138.) Before P.2d 446 Orin, supra, support People v. his conten- to designed where upheld have been als now be tion that should released from all further ‘to obtain prosecution enable charges. The district court erred when it defendants, witnesses, to add additional granted releasing the writ the defendant. facts, to new of plead or plead new (1965) (People . v. Silva . . .’ fenses B 87, 453, 457, Cal.Rptr. 46 Cal.App.2d 236 issue is next whether the dis (1963) 90; also, v. Arnold Williams see refiling missal and violated the defendant’s 193, 196, 35.)” Cal.Rptr. 35 Cal.App.2d 222 process rights under the due clauses of the P.2d at 199. 533 filing state federal Constitutions. The say People’s approv- that the “We do following a second criminal action dismissal indispensable to every is in instance al prelimi of the first criminal action after (see, g., under section 1385 e. dismissal nary proceedings per is not a se violation of Superiod v. Court People [Superior] process the due clause of the federal Consti 491, 502, (Howard), supra, 69 72 Cal.2d Davis, v. 487 tution. United States F.2d 330, 138) for to so hold 446 P.2d Cal.Rptr. 1973), (5th cert. 415 112 Cir. denied U.S. perhaps abrogate the curtail or 1573, (1974). 94 39 L.Ed.2d 878 S.Ct. in the sentencing discretion resident States, v. DeMarrias United 487 F.2d See 19 court, discretion must be reason- but such (8th 1973), cert. 415 Cir. denied U.S. 94 ably and where the court’s ac- exercised (1974); L.Ed.2d 877 S.Ct. 39 Pearce v. lacks reason be invalidated tion Cox, (10th 1965), challenge." F.2d 884 Cir. cert. 533 P.2d at upon timely 976, 977, 86 1869, 1871, denied 384 U.S. S.Ct. case the defendant Stockwell did In this Neither have L.Ed.2d our challenge and reverse the action not seek due interpreted process states sister dismissing court in the first of the district of their jeopardy double clauses own consti the court because of a failure of proceeding practice per se tutions to make viola out the reasons for the dismissal set rights. g.,E. of the defendant’s tion minutes, thus seek reinstatement allowed the following cases have state the courts did in action as of the dismissed accusing person complaint file a second Hanson, People v. City supra, Lake Salt original complaint crime after Stockwell, Orin, Rather, supra. v. Court, dismissed, Superior Skinner a “mo- proceeding, also filed corpus habeas (Ariz.1970); County, 475 P.2d 271 For Pima which he prejudice” in tion dismiss Garrett, 106 Ariz. 448 P.2d Wilson only affirmed order of (1969) mag (refiling before a different sought proceeding, but also the first statute, refiling prohibited istrate but make it of dismissal to the order amend allowed); Orin, In re People v. before same prejudice.” Neither “with Hanson, 229, 115 511, Russell, Cal.Rptr. 524 supra, v. 12 Cal.3d City nor Salt Lake supra, 806 (1974) (dicta citing approval prosecution

P.2d 1295 ther for offense, the same Uhlemann, holding People 9 Cal.3d v. critically this Court views practice 662, 657, (1973), Cal.Rptr. 108 511 P.2d 609 among ‘shopping’ magistrates or the re- may prosecute that state under an indict- peated charge refiling of a until a favor- complaint against ment after a the defend- able ruling is obtained. pro- Without the dismissed); Holloway, ant has been v. State evidence, duction additional or the ex- 245, (1976); Kan. 547 P.2d 741 219 Walters istence of good other cause to justify a Williams, (Okla.Cr.1970); v. 474 P.2d 661 subsequent examination, v. Nicodemus District Court of Oklahoma a practice such can become a form of County, (Okla.Cr.1970); 473 P.2d 312 State harassment which princi- violate the Weiss, 372, v. Wash.2d 438 P.2d 610 ple of fundamental due process and equal (1968); State, Richmond v. 554 P.2d 1217 law, protection of the announced (Wyo.1976); see also cases collected foot- Supreme the United States Court. This State, note 3 of Richmond v. P.2d supra, 554 say is not that when new evidence 1222; following while the cases have becomes available or when the prosecute allowed the state to under an good believes —in faith —that the magis- following indictment returned error, trate committed should Gonzales, complaint, v. State 111 Ariz. refiled; not be but absent such circum- 38, (1974); Elling, 523 P.2d 66 v. State stance, refiling the continued —numerous 317, (1973); Ariz.App. People 506 P.2d 1102 times —of a charge which has been dis- Uhlemann, Peavler, supra; State v. by magistrate missed is not to be de- (1975); Simpson N.M. 537 P.2d 1387 sired. The facts of the instant case do Sheriff, County, Clark 86 Nev. 476 P.2d not approach degree such an offensive (1970). government Like federal be violative of fundamental fairness. Ac- states, sister we and our do not construe the cordingly, this petitioner Court holds that process due clause of the Idaho Constitution prohibition, entitled to a writ of per prohibition against se create before, as stated existing statutes, under refiling charges of criminal after prosecution dismissal of a at a prelimi- charges ap- have first been dismissed with nary examination is a statutory bar proval prejudice. of the court and without prosecution to further for the same of- Urie, 92 Cf. State v. Idaho 437 P.2d 24 regardless ‘judicial fense title’ of McKeehan, (1968); State v. 49 Idaho sitting official as examining magis- 289 P. 993 trate.” 473 P.2d at 316. add- ed). however, say,

That is not to refiling of criminal dismissal and com In this case the had cause to plaints by done for pur bring a second complaint against pose forum-shop of harassment or delay Stockwell based good faith belief ping proc cannot be a violation of the due in the prelimi- erred ess We quote approvingly clause. the fol nary hearing, both as to the evaluation of lowing passage from Nicodemus v. District the evidence magistrate’s admitted and the County, supra: Court of Oklahoma failure to allow the prosecuting attorney to present

“While the present statutes do not make more review of evidence. A prosecution prelim- dismissal of a clearly prosecuting record discloses that —at inary stage examination bar fur- attorney judge shopping.7 was not Because —a it, hearing, request 7. At the before the district court on next I did not and I but 10, 1975, days day objected judge November two before the would not have had the same preliminary hearing matter, set for the on the second reheard the because I would have complaint, attorney put stated: intended to evidence and additional particularly this witness who is outside the may appear “While it that we are forum state and would be available hearing.” Rptr. this new that, shopping, it was not intended to be Tr., p. 12. request I Appar- did not a different forum. ently assigned a different on this di- and the cause remanded with filing reversed reason good had prosecutor the writ. quash to the the district rections complaint, second criminal the relief granting petitioner the court erred petition. corpus J., habeas MePADDEN,

on his concurs. C. judgment of reverse the Accordingly, we DONALDSON, J., concurs in result. that our emphasize We court. the district SHEPARD, Justice, concurring specially upon the one based holding is a narrow dissenting. (1) case: and of this circumstances following the by preventing erred magistrate the that however, reached, I I in the result concur introducing addi- reopening and from state majority and dis- the disagree with both preliminary the evidence at tional relevant senting opinions. this case record in (2) that the hearing; magistrate that the majority The holds and that the dismissal suggest does not to prosecutor allow the refusing to erred harass- charge was done for refiling of the opportunity the re-open both sides had after had prosecutor delay or because ment or evidence, had rested and present had to evi- present available effort to made no clearly is argument. a decision made Such hearing; preliminary at the first dence judge. presiding discretion within the steps refiling followed (3) as to a number majority speculates The prohibited by charge which were not might matters felony rules the statutes might have but- prove been able cases. majority case. tressed the State’s ap- complaint, which The second criminal prosecutor’s forthrightly sets forth is freed from the parently pending,8 still re- his motion to support statement habeas district court’s constraints of the and this I believe the open and in effect The bond which was corpus order. be bound the extent should Court 20,1975, of the habe- the date on November nothing I see contained of that statement. reinstated, order, subject corpus have con- necessarily should therein which of the court below.9 further order magistrate, the district court vinced the testimony proffered that such granting court this Court of the district The order ability main- “as their to maneuver and corpus of habeas petitioner’s writ corpus purport point order did habeas not dismiss in the record the At another attorney complaint, clear his intention: made the second criminal Case No. was, “Now, why I it it wasn’t don’t know and no other order to that effect is in the my request magistrate a different record. certainly proceeding. I did new received the it, request had no and I would have 10, 1975, hearing 9. At the November on the rehearing Judge objection Bennett corpus petition, judge habeas when the district and, he is a fine matter. I think preliminary hearing was advised that was set eye, always eye although I we see don’t days com- for two later on the second criminal happens be- in a while it think that’s —once (Case 8219), plaint judge, No. district judge, and that’s the counsel and tween counsel, the concurrence of both vacated the prerogative I think coun- the sel, preliminary hearing. for the defend- Counsel request different but I did get “. like to ant stated .we would matter.” court rehear the forum or different Rptr. corpus petition] re- this matter habeas [the Tr., p. 11. preliminary.” solved Also without before its order in the district court entered 8. When prosecuting attorney, objection from the corpus proceeding on November habeas $50,000, from at which the bond was reduced Petitioner’s . Granted [the] it, $15,000, had set second Prayer .” directed the for relief . magistrate had re- to which the first amount County to re- of Bannock sheriff the defendant over on duced it when bound custody.” from While the Petitioner lease However, charge. voluntary manslaughter actually corpus petition contain did not habeas $15,000 judge indicated that relief, primary prayer thrust of the subject . to increase if the bond was “. magistrate’s petition was to restrain the Tr., Rptr. p. so facts indicate.” proceeding, Case No. the second in conducting hearing. a second position” tain their was relevant on the ranted. Here no information was filed. question reducing charge. the very On the day magistrate, that the Judge Bennett, entered his decision and commit- majority question the While discusses the order, prosecutor ment the approached Dis- State, equally of fairness to the I believe Judge trict Hargraves ex parte, and on the important is the doctrine of the fairness to strength of a stating only motion that his We defendant. do not know and the record motion was in the justice, interests of and does not disclose what witnesses the de- his oral statement “wished” to start fendant have had available who could anew, Judge obtained Hargraves’ signature testify quantum of intoxication of dismissing an order felony charges participants. We do not know and against Stockwell. record does not de- disclose whether might unfairly fendant preju- been In commitment, Stockwell’s case the having possible diced in witnesses dismissed dismissal, the refiling, and the habeas cor- at the conclusion of the case State’s pus hearing all place took within a matter testify therefore unable to if the had State days. The strong position taken re-open. Admittedly, been allowed such Judge Hargraves at habeas speculation, is blatant but no less so is much against prosecutorial practice which he argument. of the State’s admittedly “accommodated,” had undoubt- edly served to assuage mighty wound to BISTLINE, Justice, dissenting. the integrity of Judge Bennett’s In court. case, In this companion and in the case of Rufener, however, the inroad in- Shaud, Rufener 98 Idaho 573 P.2d tegrity examining magistrate of an (1977), we review the of two actions devastating, more any without later judges presented district who were with the compensating judge. remarks the district parte unsupported ex of prose- motions Here the review of the district court’s dis- felony cutors dismiss charges against laid refiling missal and the subsequent only judicial defendants officials em- charges up identical not first came before powered by our prelimi- constitution to hold judge granted who had nary hearings exactly and to make such prosecutor’s desires, but before another determinations as were made. magistrate of the same district. Whereas case, In the Rufener Hargraves Judge in Stockwell was in a hearing took more than days, five and in- good position pass upon hap- what had testimony volved encompassing more than pened, including participation, his own 1,000 pages of transcript. magistrate, Judge favorably Shaud in Rufener was less Granata, Judge perfuncto- did not act all postured. Faced with a record which rily, but a painstaking rendered explanation only showed that a district had dis- of his decision bind Mrs. on Rufener over action, Judge missed the Shaud was not felonies, two and Mr. Rufener on three felo- any position appellate to sit in review on nies. This was on May Shortly Judge perceived that dismissal. Shaud thereafter, complied with the only question upon which he could rule requirement that he file informations was whether or not he jurisdiction. had against the defendants. 19-1302. I.C. § But, in order to obtain district court review later, however, Four months irregular highly proceedings, Judge approached Judge District Bellwood ex stipulate Shaud did to the record so strength parte, on the of a motion issues involved could be laid before the dis- stating only that he “desired” to dismiss petition trict court prohibi- for writ of anew, judge’s signa- and start obtained the tion. Unfortunately, Judge Bellwood did dismissing ture on orders all charges go proposition into the that there were against both Rufeners. statutory requirements certain which must The actions of the in Stock- be fulfilled in order to pending dismiss felo- precipitate informations, well were even more ny and unwar- indictments or actions. filed motion to dismiss the new com- A importance. of extreme matter is added.) prejudice. plaint recently lasting more effect has case the Rufener Court. before been majority admits that such mo- Even the argument at oral we were advised cases Nor by was made defendant. is there tion hearing has in preliminary second that procedure making such a any recognized Judge that place, and since taken fact against in district court a second motion too, could Shaud, that the evidence found magis- complaint pending before a criminal mur- degree of first support a awaiting hearing. not a preliminary trate and due to informed that were also We elementary der. that It is a district it had been neces- publicity, attendant jurisdiction the a complaint lack dismiss from Minidoka Coun- change venue sary pending which is before a in a County. way Brown, north Shoshone all the ty magistrate’s Claghorn court. obviously additional been has (Okla.Crim.App.1973). The result P.2d 998 State, ex- and additional to the expense that the necessarily It follows second Rufeners, to the and inconvenience pense defendant, the complaint against criminal to a right their trial deprived were of who murder, degree charging him second crimes took county alleged where the the of pending day and been since 30th Stockwell, has now the defendant place. October, needed 1975. State no deci- so go by without much years over two seen this Court in order to proceed sion from com- hearing on the second aas against pending defendant on the second him, notwithstanding his against con- plaint degree complaint. Yet that is the murder statutory speedy to a right stitutional its Like a appeal. entire thrust of modern- 19-3501; Cramer, Schrom trial. day Quixote, Don counsel for State has 275 P.2d 979 Idaho tilting at ridden into this Court a non- order, existent when there was no reason WHY THE APPEAL IN STOCKWELL I. proceeded why could not have the State BE SHOULD DISMISSED. of a prelimi- into less fantasied combat which, all, by nary hearing after the rules appeal This should have been dismissed procedure required to be held within discovered instanter moment Court Court, days. play determined to that, contrary the record to the asser- Quixote, com- Sancho Panza State’s brief, in the State’s the second criminal tion absurdity invoking “ple- pounds its against not been complaint Stockwell had nary power” that “the second criminal so originally for the dismissed.1 Counsel State complaint, pending [may still be] in this case caught Court’s attention constraints of freed from the [non-existent] in his brief that an order had misstatement corpus court’s habeas order.” motion granting entered defendant’s been complaint: criminal to dismiss the second Why appeal? We not dismiss consider, nothing to it be unless preliminary hearing before us “Before the second defendant, custody peti- now out of filed a whether the could be held the Defendant years, two should should corpus alleging for over tion for a writ of habeas insurmountable ob- have been released. An was unlawful because restraint competent judicial making a contrary was to the stacle to our filing the second sorry is the state question procedure viola- review of rules criminal we are furnished of the with which process of the due clauses record tion We do pleadings. We have He also the state. constitutions. state federal is, course, complaint complaint in- dismissed remains That the second criminal seriously that if the district standing dispute. with its statement The ma- consistent is not judge’s “apparently “is an order dismiss- jority opinion considered State admits proba- ing complaint, portion criminal it is the district the second misunderstood” bly analogous interpreted on demurrer judge’s it as a dismiss- order which 19-2804(1).” appealable complaint. The ma- under I.C. al of second jority’s second criminal admission have the Petition for issuance just tion was under all the circumstances of Writ, alleges wherein defendant his incar- this case. presents history ceration and of his While it is true that the order Judge case. But we see no Writ. We do not Hargraves released jail, the defendant from issued, know to whom whom it it also appears that defendant was on the greater importance, was served. Of we do verge of making bond. Release of the de- Writ, to the nor not have Return fendant, by another, one means or could not

Answer the Return. It the return affect the prosecute. State’s Judge essential, for, absolutely which is in habeas Hargraves simply ordered the release of the corpus proceedings, the return takes the defendant from custody. He did so because place complaint and issue is drawn on he concluded that rights defendant’s were the return and answer the return. being impinged upon. Here was a defend- papers pleadings These constitute the in a ant $50,000 first incarcerated under a bond proceeding. habeas 19-4212. awaiting his preliminary hearing on a charge degree of second murder. At the appellate guess

An court does not sit to preliminary hearing, the committing magis- may the return have stated. Nor what are trate bound him over a charge of volun- part presume we to error on the of a dis- tary manslaughter and accordingly reduced Quite contrary, pre- trict court. $15,000, bond an amount defendant sumption is that the district court acted prosecutor, was able meet. The after without error. That the burden of estab- being by cautioned the district court on the lishing pre- a appellant error is action, dismissing wisdom of neverthe- jurisdictions.2 this all other cept of Sev- less totally had the action dismissed. De- grounds pris- a discharging en different for fendant was rearrested and again bond was 19-4215, are custody oner in found in I.C. § prohibitive $50,000. set a Under such Judge jus- Hargraves would have been circumstances, it ill behooves this Court to finding applicable.3 tified in several of them hold Judge Hargraves incorrectly re- Or, equally likely, the release from custody leased the defendant from custody. discretionary have been simply “o.r.” 19-4219, release under I.C. with the dis- appeal I conclude that this be should dis- concluding disposi- trict court that such a simply legislature missed because the has today any state, 2. The Court continues further down the court of this or officer recently path Lopez, thereof, it so traversed in prisoner may discharged State v. such 570 P.2d 259 In any cases, 98 Idaho that case following subject to the it was the defendant who left the record behind restrictions of the last section: thereby convincing majority succeeded in jurisdiction 1. When the such of court or prostitution this Court Idaho’s statute officer has been exceeded. vague-as-applied (since we did not know imprisonment 2. When the was at first applied). Today how it had been it is the State lawful, yet act, by some omission or event that has chosen to leave the record behind and afterward, place party which has taken emerges successful as result the Court’s discharge. has become entitled ato record, willingness missing to assume that the process 3. When the is defective in some present, support position. the State’s law, required by matter substance render- only principle decipher I The can to reconcile ing process such void. holdings of these two cases is that this process, though proper 4. When the does not discriminate Court between the State form, has been issued in a case not allowed party and the defendant: whichever has lost by law. predisposed in below will find this Court its person having custody 5. When the only favor if it omits from the record all docu- prisoner person is not the allowed law support ments which the adverse decisions be- to detain him. dissent, my low. For the reasons stated in process 6. Where the is not authorized Lopez, practice I continue to assert this order, any judgment court, any or decree of every appellate violates known standard re- any provision nor of law. view. party 7. Where a has been committed on discharge. ap- 3. “19-4215. Grounds charge a criminal —If without reasonable pears pris- the writ on the return of that the probable cause.” custody by process oner virtue of remedy prosecuting attorneys who “de- appeal by the State an seen fit allow by a made binding determination cide” that a erred in adverse from an proceeding. corpus in a habeas over a defendant answer on admits analysis, in the last majority, which is less than that which non-ap- appealing is here brought. State seems had Court to little its for cover under pealable but runs order remedy in giving pros- realize that to a any decision authority “to review ecutor, unbridled corresponding being taken court, party if the even the district defendant, corresponding from the and a statutory right no appeal has bringing the being integrity attack is made approach an Such the decision.” appeal I magistrates. compelled this State’s am today’s ma- in face of ironic particularly set forth the manner in which Court has case of companion in the jority decision erred. Stockwell, majority in- In Rufener. “plenary to hear power” a so-called vokes II. THE CONSTITUTIONAL FRAME- admittedly non- appeal from State’s IN IDAHO. WORK upon issues and to rule appealable rights person Among the afforded ac- before part of the matter which formed guaranteed a crime in Idaho is that cused of Rufener, those where court. the district Constitution, 1, 8, the by Idaho article Court, the this properly before issues are no person which states that shall be held to prohi- a “writ of dismissed because appeal is felony grand a by jury answer for unless by remedy recognized which is bition” —the indictment, public “or on information of the appropriate courts as under other state all prosecutor, by a magis- after commitment lie in cases of the circumstances —will added.) The proceed- trate.” State, defend- public If the the sort! this of ings the Idaho Constitutional Convention judges ers, magistrates and district of language carefully show this was cho- Idaho, are confused the entire state bar sen. The framers wanted the probable practice, can offer them appellate I by such cause determination to be in the hands aof equal- solace, being for I must confess neutral and magistrate detached ly confused. —not prosecuting attorney. the hands of the As However, no confusion there should be by narrated this Court in State v. McGree- ruling on majority’s fact that the about the 453, vey, (1909), 17 Idaho 105 P. 1047 bad law —law merits of this case makes heated debate arose at the Constitutional little, very and for not stand for that should because, originally drafted in Convention majority completely long. The seems very committee, Bill proposed Idaho of 1 of article of the Bill to section 13 oblivious Rights prosecutions would have “authorized Constitution, which Rights of our Idaho of any previous pre- on information without every process due of law Ida- guarantees or liminary examination commitment.” It makes no accused of a crime. ho citizen upshot was of debate that Mr. McGreevey, 17 Idaho of State v. mention Claggett, president of the Constitution- 453, (1909), very is the P. 1047 105 Convention, in- al offered amendment Court. brief before this of defendant’s heart serting by the words “after a commitment totally ignores McGreevey’s Thereby, magistrate” immediately following the of article section 8 thorough discussion of “prosecutor.” word The amendment was carefully which so Constitution the Idaho and, later, was adopted years 20 authorita- distinguishes the function of by tively interpreted this Court as follows: equally It prosecutor. that of undoubtedly “. .It was inten- provisions of I.C. 19- plain ignores convention, tion of the constitutional effectuate this 19-3504 which 1306 and § clause, inserting the a com- when ‘after most seri- provision. These constitutional of by magistrate,’ mitment in sec. 8 upon the unwarranted assaults ous Rights, prohibit any Bill the trial of of the of of and statutes State Constitution offenses, providing person felony for a or other made in the name Idaho are cognizable probate court, by justice purely clerical and act, ministerial the same until after had been prelim- accorded a as if the were preparing an in- inary examination and been committed to dictment for the grand jury: “ by answer committing mag- therefor ‘There is thus neither in the constitution It by prohibi- istrate. was intended nor in the laws enacted in furtherance every person tion to accord accused it the slightest vestige judicial, discre- hearing before a committing magistrate tionary, appellate power given to the the particular offense for which he attorney in controlling the action subsequently to be tried on informa- of the committing magistrate. His func- ” the public prosecutor. tion of It was tions are ministerial purely.’ (Quoting ‘probable likewise intended from People Nogiri, 142 Cal. 76 P. informing against cause’ for the defend- (1904).) State v. McGreevey, putting ant and him on trial in the dis- Idaho at P. at 1049. trict court should first be found By ignoring separation of powers so 463-64, magistrate.” 17 Idaho 105 P. painstakingly constructed in the Idaho Bill at 1050. of Rights clearly and so effectuated Ida- therefore, Rights, Bill protects every Our statutes, ho majority opinion today un- carefully delineating Idaho citizen dermines the role at the separate powers judi executive and preliminary hearing, flagrant condones a prose cial government. branches To example of prosecutorial overreaching, cre- cutor falls initial decision as whether improper ates an standard of district court and, person prosecuted or not a should be tramples upon review and the constitutional so, on what com charges. But once the rights statutory Idaho citizens. It is filed, plaint prosecutorial discretion is at to these issues that I now turn. prosecute an end. “When the decision to made, been process has the which to leads III. WHAT IS THE ROLE OF A MAGIS- acquittal or to is sentencing fundamentally TRATE AT A PRELIMINARY Tenorio, judicial People in nature.” HEARING? 89, 94, Cal .3d 89 Cal.Rptr. 473 P.2d What is precise magistrate the role a must play at a preliminary hearing so as to carry Idaho statutes out the constitution- the honor intention of the Idaho Bill of al intent. the provides I.C. 19-804 that at § Rights? question very The is at the heart be preliminary duty examination it shall the today’s of two majority cases. The states magistrate of to the determine whether or very question as the first before the Court public not a been committed. offense has on appeal: magistrate “Whether a a in magistrate, states that the § I.C. 19-815 preliminary hearing may reduce the charge evidence, hearing after the shall enter an complaint in a when the evidence presented holding answer, pro- the defendant to preliminary in a hearing capable of sus- magistrate public vided the finds that a taining inferences supporting charge the offense has been committed and that there Indeed, the complaint.” this is the central or the probable sufficient cause to believe question before the Is magis- Court: the guilty The language defendant thereof. trate a whose decisions are entitled to 19-815, presents options I.C. which the § correctness, a presumption of or is ahe the used form be make it clear subject eunuch whose decisions are to being magistrate of

the can find the commission “desire,” “wish,” overturned the or whim public charged the offense other than one of the attorney? surpris- Not prosecutor’s complaint. in the Once the ingly, majority the very never the answers made, magistrate’s question determination has been it “plenary pow- invoked its prosecutor’s prepare the sole function is to er” reason, in order to The address. of against course, and file the information the accused is that no law could be found to magistrate’s support in accordance with the com- its emasculation the role of the magistrate mitment order. I.C. 19-1302. This in Idaho. § exami- prelimi- preliminary “It is also true that at the magistrate’s function charge nation on the of murder necessari- grand the nary parallels that of hearing degrees all the of murder ly includes it is “to find an indictment whose task jury, well. An examination manslaughter as them, before taken all the evidence when the the would include greater for offense uncontradicted, unexplained or together, necessarily and offenses which are lesser a convic- would, judgment, warrant in their within as a matter law included 19-1107. In jury.” I.C. tion a trial So in charged. offense named and prosecutor. of the judgment, not that their charge case the examination on judgment, “it their reaching And in man- charge murder included the submitted to duty weigh all evidence slaughter, power and was it within them, they have reason believe and when hold defendant reach will within their that other evidence manslaughter, but was not within they charge, should order explain away power authority or of the produced.” be such evidence to file an that commit- information under added.) 19-1106.4 ment offense higher different grand jury, has magistrate, like That than he that for which was committed.” presented weigh the evidence 464-65, (Emphasis added.) 17 at Idaho and, if he sees at the 105 P. fit, on a lesser defendant over to bind the McGreevey, a bit was prosecu- brought than that There, present less subtle than case. tion, always been understood prosecutor simply ignored magis- su- McGreevey, In State law in Idaho. (binding trate’s commitment order the de- Supreme quoted ap- pra, the Idaho Court charge manslaughter) fendant over early Michigan opinion provingly from charging and filed an murder. information statutory provision similar to interpreting a Here, rejected the decision provision: our own constitutional and, the magistrate with a mere dial of “ intent of this ‘The clear evident statute telephone, his obtained the dismissal exercise should order, commitment new iden- refiled a matter; judgment best in the complaint degree tical criminal for second testimony determine should from murder, had Stockwell rearrested. charged the war- the crime whether here, prosecutor’s conduct which even committed; where, had been rant majority recognizes transparent as a “at- case, charged the offense includes mag- tempt ruling to circumvent the degree, magis- one or more of lesser istrate,” proved has more effective than in offense, if trate should determine which only prosecutor in McGreevey because the committed, had so that any, been constitutionally-ori- that case found a more might placed upon trial in accused be unwilling to countenance his ented Court charge a to answer to differ- the circuit irregular conduct. he greater or than the one on which ent It be is not alone should noted Idaho examined, to answer which

had been and prelimi- at a holding a (Quoting had been held for trial.” he empowered weigh all nary 286, v. 34 Mich. 105 People, Yaner and, decides, evidence he so bind 1047, 1048.) added.) 17 (Emphasis P. over on a lesser than that defendant at 459. Idaho prosecutor. brought by the The role same urged by been the drafters of the Model McGreevey the Court stated And in Pre-Arraignment and Code Procedure itself: jury’s prepare grand accept position direction to an indictment one were to 4. If liberty dismiss majority, be at or could convince a district a would also any parte finding probable and of a such an indictment ex without cause to overthrow showing seriously any grand jury. whatsoever. I one doubt urge could refuse would 814 adopted by the American Law Institute in O’Mealey, 19-815A.5 See State v. 1975. Once the has made his 506 P.2d 99 It should Idaho

determination, may not be second- noted, however, be that a defendant has guessed by prosecutor except in the case right always had same under the habeas See, plain Estey- abuse of discretion. provisions of corpus the Criminal Procedure Municipal Long bar v. Court for Beach Jud. provisions are Act of which now codi- Dist., Cal.Rptr. 5 Cal.3d 485 fied as I.C. 19-4215.6 (1971); Commonwealth, Myers P.2d 1140 Rufener, In Stockwell and in nowis (Mass.1973). N.E.2d 819 State who challenge what it deems

to magistrate error in binding over the IV. OPTIONS AVAILABLE TO THE defendant on a lesser charge than that

PROSECUTOR. brought by Yet, the prosecutor. in all of history, Idaho’s both aas State and earlier bound over an accused has been Once territory, as a there has not been any statu- prosecu- charge, an Idaho specific on a trial tory provision grants the State the strictly McGree- are limited. options tor’s full panoply rights provided which are can it clear that vey makes an accused under I.C. 19-815A and 19- §§ order commit- ignore magistrate’s 4215(7). When the time comes that the offense answer for ting Stockwell to accused, State it will be time enough and file an infor- voluntary manslaughter protections afford such to the State. degree offense of second mation for the simply drop Neither can he murder. Surely, such can be created un of nolle prosecutorial right since the case guise der the of this rule-making Court’s inwith Idaho: prosequi away has been done powers. principles The enunciated Jus abolished.— prosequi “19-3505. Nolle myself Creech, tice Bakes and State abolished, prosequi entry of nolle - Idaho -, - P.2d -, 1977,are ap attorney-general nor and neither plicable here. This Court cannot its own attorney can discontinue fiat, legislate in an area where fundamental of- public for a prosecution abandon and rights constitutional are at stake. Re in the last sec- provided except fense majority dress of perceives what the as an added.) tion.” rights imbalance between the of the accused When, prosecution, would have to come question therefore arises: legislature. from the circumstances, I sound the alarm disap- under what now, loudly pointed clearly, to the bench and prosecutor challenge sufficiency alike, bar magistrate’s legislature to the support peo of the evidence to and to the ple of majority commitment order? The fears a Idaho that Titles 18 form the appeals process lack of symmetry justice system backbone of the criminal right belongs because such a to the They defend- this state. must not be allowed to be recently repealed ant virtue of the enacted I.C. on the mere say-so of some Court- sufficiency Challenging complaint, “19-815A. of evi- dismiss the commitment infor- preliminary discharged.” dence examination. —A de- mation and order the defendant fendant once held a to answer to It was under this section of the code charge chapter may challenge under this district court reviewed the evidence submitted sufficiency prelimi- of evidence educed at the State, examining magistrate Carey to the in v. nary by examination a motion to dismiss the 91 Idaho 429 P.2d 836. The accused there commitment, signed by magistrate, or the charged admitted that he could a be felo- by prosecuting attorney. information filed ny, “support but denied that the record a could by Such motion to dismiss shall be heard a preliminary finding of sufficient evidence to judge. charge him hold to answer a of deliberate and premeditated judge magistrate “If the district finds that the 91 murder.” Idaho at 429 has P.2d at 839. held the defendant to answer without probable reasonable or cause to believe that court, appeal, The trial and this Court on held the defendant has committed the for crime magistrate's “the discretion should not be answer, which he held or finds no was to except disturbed a in clear case abuse there- committed, public has added.) offense been he shall of.” Ibid.

815 (3)An replaced with that order for the dismissal of the committee appointed action, set of rules. preferred 48(b), committee’s is provided by Rule a bar as prosecution to for the any other same 19, properly my that Title conviction It misdemeanor; it is a but it is offense if to meet fully adequate applied, felony.” is a a if the offense bar where in those rare instances needs State’s charges stated in to trial on going moves the a prosecutor When a court for order magistrate’s commitment 19-3504, ob- under I.C. his motion justice. in furtherance of clearly not be set forth the reasons which viously must sophisticated a laborato example, more For a anticipates the court will find to exist as drug a reveal offense ry analysis might predicate granting the motion. Here for expected, previously had been where none by prosecutor. were set forth reasons 360, 109 Cal.App.3d 34 People Ayala, v. only: stated Motion to Dismiss (1973); key or the State’s Cal.Rptr. 193 Idaho, now, the State of “Comes pre from the first might be absent witness Pincock, through Prosecuting Garth S. become availa liminary hearing but later Idaho, Attorney County, for Bannock Williams, Cal.App.2d ble, Arnold to moves the Court dismiss the above (1963); or the Cal.Rptr. prejudice entitled action without in holding a of law in make clear error might justice.” interests of later “escape,” did not that an accused was, indeed, valid there a discover totally Such a bare-bone motion was insuf- custody, holding him order commitment to give ficient a district a record State, (Okla.Crim. 517 P.2d 1142 Chase judicial a which would enable him to make to might want prosecutor or the App.1973); determination. the victim charge murder where bring a it helped prosecutor Nor would bound the after dies urge, State now does in his behalf charges over on assault. accused appeal, proceeding that he was under 19-1717. 48(a). authority 48(a) I.C.R. Rule must procedure which worth, purports give be what prescribed by I.C. in such cases is follow court, leave of 19-3504: indictment, complaint, an dismiss an or of court Dismissal on motion “19-3504. information. Here there was no indictment may, prosecuting attorney. or —The complaint, or information. The which had upon the its own motion or either of Judge superseded Bennett been before attorney, prosecuting of the application holding an Order Commitment justice, order an furtherance of and in defendant to answer in district court. The be dismissed. The or indictment to action quite apparently had in mind that drafters be set forth of the dismissal must reasons prosecutor’s 48(a), supposed dismiss- Rule minutes.” entered al, statute, was to be a rule version recognized by Idaho Criminal statute This 19-1306, requires which I.C. § 48(b): Rule writing re- his reasons for set forth may dismiss The court “(b) By Court. an information and seek- fusing file criminal action: ing a dismissal: unnecessary delay in (1) If there provisions of 48 should read “The Rule grand jury to a presenting 19-1306, conjunction with Section is not filed within an information if attorney, permits rules, these Rule of prescribed period examination, even after unnecessary delay in is an there that an informa- make determination bringing the defendant trial. filed, case not to be in which ought tion reason, con- If, (2) any other make, file required to subscribe and he serve the such dismissal will cludes that the clerk of the court statement justice and effective adminis- ends of the reasons, writing containing his in fact business. of the court’s tration law, filing and in for not an information mation to dismiss an information once it case, . such . add- has been may filed. He so only do if he ed.) Comment, Rule 48. writing states in law, reasons in fact and in rea- importance of such a statement of sufficient to the convince district court that minimized. The sons must be defend- actually dismissal is in the furtherance of just subjected ant has been justice. only This is not the prerequisite to out- hearing right rely and has a its the grant (1) aof dismissal. In district people see come. The process court requires due notice of hearing prosecutor prosecutes case in which and an opportunity to be heard on such a magistrate has ordered that a defendant be (2) motion. The standard of review in dis- to answer for commission of a held trict court is question addressed to the felony. by As noted the drafters of the whether not the has grossly Rules, safeguard- Criminal these values are (3) abused his If discretion. the district scrutiny ed close district court grants motion, court the statute re- statement: prosecutor’s filed quires that an order be entered upon the pro- “The section also § 19-1306] [I.C. setting minutes forth the reasons. Thus all vides, however, may that the court exam- may upon know what basis if the court ine such statement and statement, prose- with the halt and dismiss the prosecution satisfied of a felony. by the cuting attorney be directed Rufener, In respective Stockwell and in proper file the information court to district courts violated all three of these bring the case to trial.” Ibid. circumstances —each every one of case of dismissal in Stockwell’s which is a precedent The order condition to the entry question was a dismissal without of a valid order of dismissal. court, As prosecutor’s and not a dismissal. out, in district

pointed nothing there was 1. A Contested Dismissal Requires dismiss; no com- court the could a Hearing. indictment, It information. plaint, no no district court that was was action in The majority admits that the entire habe- dismissed, and it was the dismissal of as was “concerned primarily with moved, and action for which the the propriety of the prosecuting attorney’s for which could move both within parte ex pro- first criminal 48(b). Rule language of I.C. 19-3504 and ceeding.” Unfortunately, majority nev- entirely Fatally, prosecutor failed question. er itself addresses the This is not on an support his motion. It was founded since, admission, surprising by its own “wish,” conveyed parte Judge oral ex majority invoking “plenary power” its Hargraves, wholly premised only to address recurring questions those conclusory insufficient and statement prevent “which must be resolved to future “in that it was made the interests motion being criminal proceedings improperly being justice.” supporting Without reasons dismissed or rulings reduced erroneous motion, judicial given for the no determina- judge” or district to—not be the mo- tion could made to whether recurring those questions address justice. in the interest of tion dismiss was would have so resolved as to safe- It follows that the district entire- guard rights the constitutional of Idaho cit- ly jurisdiction without and in excess izens integrity magistrates. and the of its proceed- an entering dismissing yet sense, surprising another it is not ings. majority fails to address ex ROLE AT V. THE DISTRICT COURT’S parte dismissals which occurred in Stock- A TO HEARING DISMISS. because, again, well and Rufener it could policy support find no law or reasons to its above, stated As own, practice. to refuse to file infor- endorsement of such a right, on his

817 upon plaint right rely a to will be dismissed under California A defendant fact, Code, preliminary hearing. In Penal section 1385 of a outcome [Idaho 19-3504]. why prosecutor the de- The reasons must be Carey, supra, stated Court in given a right guarantee: opportunity in terms of notice and the to be fendant’s heard are: an guarantees “The Idaho Constitution judge It to “First. will enable the trial right preliminary to a accused’s decision, which make a informed more afterwards, and, be to magistrate a before do, every aspires by presenting to present- prosecuted by information or the inform himself of opportunity an to grand jury. on indictment of a Ida- ment ... A defendant picture. total Const, 1, ho art. 8.” 91 Idaho at likely rep- to make untrue would be less of counsel and effort The time resentations, were if hearing be- magistrate at the . present. both where, happened in as worthless come of a statu- Even in absence “Second. can cases, disgruntled prosecutor a these notice, rights tory requirement of if the judge, district casually “side-door” party likely to be af- an adverse are the determination fected, requirement of a notice of motion having been there ever without out thrown observed, concept is a basic to be absent a so fundamental hearing. It is judicial legal showing emergency justifying of an a prosecutor’s when to be self-evident dispensation. its ... In certain undoubtedly be attempted cases, just telephone prosecu- call to who has defendant by the contested ap- tor with a reasonable to opportunity Carey, supra, district guarantee might adequate. be But some kind pear motion ex the dismissal not hear must requisite of notice is a and the onus court, doubt, can A if parte. is not unreasonable. thereof asking defense the matter easily resolve the observation of our By “Third. basic heard opportunity an be if counsel proceeding notion a criminal is basi- desired. nature, cally adversary general re- Burri, v. 550 P.2d In the case of State public spect of the for courts and the (1976), Washington Supreme feel, judicial process, promot- we will be rule noted its own criminal Court judicial ed. Courts and officers must at subject “The court on its own which states: fact, only all times be fair in but also justice, after in the furtherance of motion preserving appearance diligent be any crimi- hearing, may dismiss notice and . of fairness as well. its rea- prosecution nal and shall set forth “Finally, by requiring we feel that add- sons in written order.” oppor- given notice and Though the ed.) 8.3(b). Idaho Wash.Cr.R. tunity present, to be it will ease some of and the criminal code do not Criminal Rules pressures improper the unfair and some- to notice and language as include similar . placed judges . .” times to be hearing, opportunity and an notice Gonzales, People Cal.App.2d Supp. process rights due heard are fundamental Cal.Rptr. 303-304 when the seeks of the accused equal, apply above The reasons stated magistrate’s of a district court dismissal greater, force the case of a defend- an to refile a order in effort commitment as found ant whose commitment higher offense. complaint for a sought be dismissed. See Fernie, 129 Vt. also, State California, under in the same situation In 726, 727, (Vermont 1971). A.2d statute, held has been the same short, prosecutor’s notice on a motion dis- attorney given must be miss, notice the defendant has proceedings attend opportunity motion, court, opportunity be heard. This on its own municipal logical conclusion to be drawn from a misdemeanor com- decide whether of protecting short, Idaho’s tradition the accused In the Idaho magistrate given interposing judicial a detached official wide discretion in his over; decision to bind prosecutor. between him and the his is ex the determination as to what offense has parte dismissals exacted of the been prosecutor district committed. The who claims an prosecutors magistrate abuse of overzealous in these discretion must state cases, writing his today two reasons endorsed the ma- for chal- decision; lenging that his is the jority, violate burden of that tradition. On this basis showing that there has been plain alone, abuse parte I would find these ex dismissals prosecutor’s discretion. The reasons, fatally defective. along with the record which was before the magistrate, form the basis of district court 2. The Review in Standard of review, review. District court under I.C. District Court. 19-3504, is limited to a determination as The majority prosecutor holds that “the to whether or magistrate not the plain- bring had cause to a second criminal com- ly abused his discretion. plaint against Stockwell based his The same standard of review has been good magistrate faith belief that the erred” elaborated in detail by Michigan Su self-serving and his statement that he was preme recent, Court in the well-reasoned magistrate-shopping. not It can be conced- case of Genesee County Prosecutor v. Gene many ed that are the prosecutors Idaho who see Circuit Judge, 391 Mich. “good have entertained the faith” belief (1974). Michigan N.W.2d 145 retains a reducing that has erred in prosecutorial right of prosequi, nolle complaint from murder to man- mind, with that context high state’s slaughter. It might equally noted that est court has instructed its district courts many prosecutors are the who have enter- they review, must good tained faith belief that a district “. . . action of the granting court has erred in a defendant’s and prosecuting attorney on the record— verdict meting motion directed or in out the record made before the magistrate at unduly good lenient sentences. But while examination, the preliminary and the prosecutor part faith on the is neces- prosecutor’s statement of reasons and sary,7 byit no means follows high that that ‘the evidence filed in the case.’ Such justifies quality prosecutor’s alone motion judicial review, review is a searching the magistrate’s to overturn the determination. record to determine magis- whether the contrary, On the the standard which has trate’s prosecutor’s decision is in ac- long governed mag- district court review of law, cord with the facts and reasons of istrate commitment orders in Idaho reads as . matter. follows: judge] . . . re- may “[A “A wide be given discretion must to a magistrate’s verse a only decision over, binding committing magistrate in abuse of may discretion. He properly nullify and in order to vacate and judgment substitute his for that of the regard, action in this it must be shown magistrate or prosecuting attorney as if plain such was action case abuse he reviewing magistrate’s were deci- added.) of discretion.” State acting sion de novo or in a supervisory 387, 390, Layman, 22 Idaho 125 P. 1042 capacity respect with to the prosecuting (1922). attorney. He reverse revise their see, O'Mealey, supra, And State Idaho only decisions if it appears on the record 204; Levy, re 8 Idaho 66 P. 806 they the power abused confided in them.” 215 N.W.2d at 147. “good faith,” If were not in that an accused be held to stand trial on a felony charge, would either be “faithless” or in “bad If faith." such a would be bringing chargeable justice. a about the nullification of a were in faith” in “bad obstruction magistrate’s 18-705. protections naught tional ease, this standard would come only In this met, there was magistrates but in essence “with most it seems review not because magistrate’s commit- at all. The attorney review of the district dictum p.m. on at 2:00 o’clock was filed McGreevey, ment order the end of the law.” State the hours after several October supra, 17 66 P. Idaho at 806. Such hearing was held. Even before preliminary unacceptable magistrate in court. conduct however, filed, prosecu- the was the order acceptable appeal less in dis- It is even on officer, police tor, with a Pocatello together trict court. judge with the office of the district went to District court review in case such as a as Judge Hargraves, to Dismiss. a Motion statute; must this under action, ex- the habeas stated in he later granted only should be if the record shows prose- if the and asked pressed misgivings plain part abuse of discretion on the proceed to in this legal authority had cutor Here, examining magistrate. there was prosecutor suggested that the manner. He only prosecu- bare oral assertion still he then matter and if research the felt put ample tor that “we had we had ac- signed, he would be the Order wished evidence to bind the defendant over as afternoon, that same Later commodated. charged,” request permission and the to 4:45, prosecutor tele- 4:30 between produce reopen in order to additional testi- that he did want the court and said phoned mony. judge’s The district evaluation of to the clerk signed and handed the Order belatedly request, such a announced at the done, Order was filing. This was corpus hearing, response habeas was served p.m., 5:02 and Stoekwell filed at at should have made the earlier dismissal charging him with complaint new with a “hearing”: degree murder. second person charged with Murder in the “A any to make show- failed is, Degree in the words of the Second pro- challenge the outcome of the ing to sheriff, heap ‘in a of trouble.’ southern Contrary magistrate’s court. to ceedings form, Homicide, any very serious glean reader would what the casual Court, least, This at believes business. pre- hindsight scrutiny majority’s presenting evidence prosecuting attorney, hearing transcript, no record liminary preliminary hearing involving homi- at a court was magistrate proceedings degree go any cide in must into Hargraves. fact no rec- Judge to In given fully gun. He is under loaded it “hearing,” such ord was available. present duty represents those he called, was held the absence could be he has. persuasive most evidence best and likely give a bal- only party other evidence in the vain may He not withhold transpired. The of what had anced account hope magistrate guess or consider, alone let judge district did through Divinity extra-sensory percep- determine, magistrate had whether evidence the tion know what additional because, the record his as abused discretion may have available. ac- shows, alleged it was not even with the law the cordance his discretion. In- magistrate had abused finding must make his based SUB- that, deed, himself stated EVIDENCE; upon spec- STANTIAL rested, I we had had “. after . conjecture.” ulation reopen permission the court for asked course, obliged evidence is not prosecutor, if he felt that additional A was within necessary, and of course his whole case show opportunity.” deny me hearing. coy discretion can he be and with- Neither evidence, tactical ad- hope hold later dismissal, circum- under such grant To necessary vantage, if such evidence Idaho Con- stances, nullity makes suspect that a convince the justifies cyni- It protections. stitutional highest over on the offense should be bound the Constitutional those members of cism of See, State, 481 P.2d 169 charged. Jones v. the constitu- predicted who Convention (Okla.Crim.App.1971); Hope, sponte Stone v. sua shoring up that decision by ref- P.2d 616 (Okla.Crim.App.1971). To allow a erences ato record which was not available refiling every prose- dismissal and time the to the judge. district Once it is demon- quantum cutor miscalculates the of evi- strated that the district court failed to gain dence needed to the desired commit- make the review mandated this state’s ment, Judge Hargraves ruled, later constitution, law, statutes and case . “. . only would not do violence to Court’s review should be at an end. Our due process right's of this Petitioner task, all, after tois review the decision the very dangerous but would establish a made, actually not one he precedent adversely which could affect might have made had presented he been persons charged numerous other proper with a motion and a full record. prosecutor crime. If the could do this once, twice, times, why not ten or innu- 3. The District Court Must State Its Conceivably merable times? a defendant Reasons for Granting Motion spend jail, could months in not being able to Dismiss. bond, remaining to make always Contrary what might the reader infer preliminary hearing stage the with never from the majority opinion, the district court a hope early for an the trial on merits of in this gave case no reasons for granting case, prosecutor happened the unless the the requested dismissal the by prosecuting magistrate upon who not would ‘have attorney. Absolutely none. The court’s doing something mind different than ruling is prosecutor’s entered the motion prosecutor] what wanted done.’ The [the to dismiss and simply: reads “It so or- criterion is not what the wants court, dered.” The minutes of the any done but rather by what should be done kept were parte request, of this ex have not impartial, an neutral tribunal based upon been included in the record the State has substantial evidence. The brought appeal. to us on expected not be a stamping rubber puppet either for the or for The State argues that reasons need not added.) the defendant.” be stated in the court minutes because the proceeding was here under judge Had the district used this criterion requires I.C.R. which when district requested by prose- dismissal was court’s cutor, only reasons be stated when a dis- granted would the mo- dismiss, granted missal is prosecutor’s over the ago tion to this case ob-' long jection.8 Court, In its this plea, have ended in or brief beforé gone trial. State, effect, argues that the passage of credit, Judge Hargraves tacitly To his repealed provisions I.C.R. of I.C. proceeding admitted at the habeas that he 19-3504: § granting parte had erred in an ex dismissal adoption “Prior of the Rules of of the first action violation Stockwell’s Procedure, Criminal the Idaho statutes process rights due and in violation of his provided felony complaint that a might obligation own to accord “wide discretion” by be dismissed either or by the court committing and to re- prosecuting attorney. There was only verse that determination when it was a re- quirement'that plain “a the reasons for shown to be case abuse of discre- be set forth an supra. upon After such order Layman, tion.” State entered Code, minutes. a candid admission Idaho 19-3504. Rule § regarding inadequacy subject matter, own deci- which covers the same sion, strange provides to find this Court indeed the prosecuting attorney (a) By Prosecuting “(c) objection “Rule 48. Record. If the court over Dismissal. — Attorney. attorney may by prosecuting prosecuting attorney dismisses a com- complaint, plaint, leave of file a dismissal of a or indictment information under this subsection, state, record, indictment information. it shall on the its findings of fact and reasons dismissal.” court, merely file dis- 19-3504 are substantive and not may, with leave of or in- complaint, this, procedural. of a indictment In an area such as missal require a Rule 48 does recently formation. Justice Bakes noted in State order of dis- of reasons Creech, - Idaho -, - P.2d - (1977), statement an ac- the court dismisses missal unless procedure by “the not confuse must one objection over its own motion tion on their busi courts conduct the Idaho attorney, in which case prosecuting gov law which “the substantive ness” with upon the required spread the court the case.” erns findings for dis- and reasons record its dismissing An order a criminal action 48(c). Rule The effect missal. presents which does not state reasons requirement change is to eliminate very violation of I.C. 19-3504 obvious pros- statement of reasons if the a formal which states: attorney files a motion to dis- ecuting may, “The court its either of own motion miss.” application argu- State’s I am much saddened justice, attorney, in furtherance of accept- point apparent on this and its ment or indictment to be dis- action approv- quote majority ance —who The reasons of the dismissal missed. I.C.R. 48 and hold I.C. 19-3504 ingly from set entered must be forth an order prac- appellate It is standard naught. for added.) upon (Emphasis the minutes.” statutes or a interpret in Idaho to two tice Court has never construed Although this both, if that a rule so as to save statute and statute, the precise of this language Jennings, v. 95 possible. is at all State just recently, has Supreme Court California 724, 726, P.2d Idaho 518 1186 unanimously, its of en banc and stated view case, itself present where the rule addresses provision: the identical (dismissals objec- over the one situation “Secondly, we of note that prosecutor) and is silent about tion manifestly I II un- counts and is invalid objection (dismissals over the another der 1385 because of the court’s section explic- defendant), and where the statute is both, comply following pro- failure to with the choosing I for see no reason ‘The two. The rule and the statute vision the statute: reasons of between the difficulty by with no dismissal must be set forth in an order can be harmonized giving requirements upon (Italics effect to the clear entered the minutes.’ add- ed; 6, ante.) both. It see fn. is settled law that provision mandatory this mere- argument strikes more But the State’s ly directory. Recently People Supe- v. passage of deeply implies that 491, (Howard) (1968), rior 69 Cal.2d Court repealed has 19- 48 somehow I.C.R. 138, 502-503, 330, Cal.Rptr. 72 446 P.2d State, effect, advocating 3504. The recognizing while the broad of a recent court rule of supremacy judge to trial dismiss in furtherance statutory procedure pro- over a substantive justice, requirement we adverted to the juris- been the law in this which has vision he ‘must in the state reasons years. I am un- well over 100 diction for pains point took out that minutes' and authority what how or able ascertain in the are not set forth reasons change purport ‘[i]f could procedural rule minutes, dismissing indeed, may not be or, why substantive statutory law— considered a dismissal under section promulgated which is at rule should repetition the sub- poorly drafted 1385.’” omitted.] best [Citations clear, added.) Orin, Cal.Rptr. People v. 120 law in this area. What stantive (1975).9 however, provisions of I.C. 533 P.2d is that peruse I leave it to the reader that Orín dismissal.” Bakes remains unconvinced 9. Justice also, People proposition law. the California case See stands for the Court, Superior Cal.Rptr. “the Cal.2d invalid when record contains order is Smith, (1968); People entry setting for the 446 P.2d 138 53 Cal. out the reasons minute “Thus, it has been said: ‘The statement reasons the court’s minutes renders his merely of reasons is directory, dismissal order in this case invalid. appellate neither trial nor courts CONCLUSION. authority disregard requirement. enough It is not re- on review the It bears repeating that this appeal porter’s transcript may show trial grant from the petition Stockwell’s for motivation; court’s re- minutes must writ of corpus. habeas Defendant had ev- flect the reason “so all know ery right complain about being jailed on ’ great why power this was exercised.” a second complaint criminal when there had underlying pur- [Citation omitted.] been no valid dismissal of the first action pose of statutory requirement is ‘to against State, him. The having invited and protect public interest against im- caused that error its improper motion proper corrupt dismissals’ [fn. omitted] dismissal, should not be able to take to impose purposeful restraint advantage of the invalid order it secured. judicial power mag- exercise of ‘Lest The appeal in Stockwell’s case should be sweep istral discretion away govern- dismissed for the reasons which have been ” ment of laws.’ [Citations omitted.] stated above. Ibid., 533 P.2d at 197-98. The real losers in the decision handed Court, Supreme interpreting Utah stat- down today’s majority opinion are not utory language Idaho, identical to that of Rufeners, Stockwell, nor but people given policy reasons insisting of this justice state and their sys- criminal that a district court state its reasons for tem. long For as Ias have been at the granting a dismissal: law, practice of years and for 85 before “Because of the nature of pro- that, it has been the law in Idaho that ceedings, and they because are in the Attorney neither the prose- General nor the interests of and protection for cuting can attorney discontinue or abandon public there is a sound basis in public prosecution public (I.C. offense policy requiring as- who 19-3505) except justice, in § furtherance of responsibility sumes the serious of dis- in which case the court must set forth the missing a case to set forth his reasons for reasons for the dismissal to be upon entered doing so in order that all know what (I.C. 19-3504) the minutes. my To dis- invokes the court’s discretion and wheth- may, today supplants the Court that sub- justified. er its action is statutory provision stantive with a new law “We conclude that in the court erred making, doing of its guise own so under the dismissing question. the seven in cases of its to make rules of procedure. At comply request We therefore with the time, tramples same Court into the his memorandum submitted to this court: ground provision constitutional inter- wrong, kindly am me.’ ‘If I reverse posing a and detached magistrate neutral conformity request, with this the order between an prosecutor. accused ‘kindly’ dismissal is therefore reversed.” Hanson, City supra, Lake v. 425 P.2d Salt today The Court’s a gratuitous decision at 775. magistrates attack Idaho’s whom our 1, Rights, 8, Bill of article see, entrusts with many And cases cited therein to the the task of reason, protecting Idaho citizens same effect. Unless there is some from none, over-reaching of prosecutors, see we why and I should not follow but whose neighboring the decision of our interests this case high- “represented” states’ are construing General, est courts in statutes the Attorney identical pros- state’s chief ours, judge’s the district failure to state his impugning ecutor! The magistrates’ au- 655, (1975);

App.3d Cal.Rptr. People my argument v. 126 195 rest on California case law 982, McAlonan, Cal.Rptr. Cal.App.3d unequivocal language 99 22 733 but on the clear and 617, (1972); People Beasley, Cal.App.3d 85 5 Idaho statute. However, Cal.Rptr. (1970). I am content today’s preside hearings felony at inevitably flows from thority which in an Many magistrates most unfortunate cases. of our be- likewise is decision in Idaho. When judicial judges, many reform are come more era rarely its invoke chooses to Supreme nothing— Court to do so.10 I can see qualified so to hear an power” “plenary nothing justifies exercised whatever—which non-appealable appeal holding magistrates today Court that the char- Shepard engages what Justice then comprehend eases in these did not their regarding speculation” as “blatant acterizes preliminary hearing function at a and that prosecu- had the happened might have what decisions to be their deserve overturned pre- procedure at proper followed tor “desire,” the mere or “wish” or whim the mag- liminary hearing and then overturns county prosecutor. be lost decision, will not the lesson istrate’s The Court magistrates. this state’s type of to the blessing clearly gives its “prosecutorial support needed

structure obsequious judge and that demands

zeal People v. every case.” victory in

inevitable 657, 662, Cal.Rptr.

Uhlemarm, 9 Cal.3d 511 P.2d 573 P.2d 142 circumstances, only join I can Rufener, Under such Ernest RUFENER Griselda of the California Su- Applicants-Appellants, Justice Mosk to disavow compelled Court who preme when that likewise same outcome Court SHAUD, Magistrate, Russell C. Fifth example “a of a blessing gross its gave District, Idaho, Judicial State of judicial seeking circumvent Respondent. remarked, As he determination.” Nos. 12263. practical rea- majority “The add ‘sound magistrates their conclusion: son’ for Supreme Court Idaho. bar, and need not be members of the knowledge some have limited presumably Dec. 1977. Regrettably the law. the final elimi- Jan. Rehearing Denied nonlawyer judges in California nation of process. painfully slow But has been judges a few of dubious

the retention of upon the adminis-

qualification reflects justice, rights

tration ... In

available a defendant. questions qualifica-

any event one experience legally

tions and magistrate in this case.” Ibid.

trained P.2d at 619. Idaho, situa- contrary, on the healthier districts, all of In one of our prevails.

tion of the bar. are members magistrates districts, know, most in the other far as I So my attorneys and

magistrates are attorney-magistrates

understanding that lay prior magistrates, framers of our Constitution. sioned our even 10. Some of Others, system, recently examining judicial new have all were reform passed comprehensive justice peace taken course in magistrates under procedures, especial systems, em- criminal law probate and rendered excellent preliminary hearings. phasis that envi- performance, in accord with

Case Details

Case Name: Stockwell v. State

Court Name: Idaho Supreme Court

Date Published: Dec 2, 1977

Citation: 573 P.2d 116

Docket Number: 12118

Court Abbreviation: Idaho