214 P. 214 | Idaho | 1923
This is an original proceeding in this court, praying that a writ of prohibition be issued, directed to the Honorable Ralph W. Adair, as judge of the district court of the sixth judicial district, in and for the county of Butte, to restrain and prohibit said judge from proceeding to try the petitioner upon an information filed by the prosecuting attorney of such county, charging him with having committed a public offense. An alternative writ was issued, to which the defendant makes return by motion to quash, on the ground that it does not state facts sufficient to constitute a cause of action, nor to entitle petitioner to the relief prayed for, or any relief.
It appears that on December 21, 1921, a criminal complaint was filed in the probate court of Butte county, charging plaintiff herein with having committed a public offense, and a warrant of arrest was issued thereon; that he was arrested and brought before said examining magistrate, and after examination was committed to answer said charge in the district court; that on the 21st day of March, 1922, the prosecuting attorney of Butte county filed an information against plaintiff, which was set aside for some irregularity in the proceedings, the character of which does not appear, the order in part being: “ .... on the motion to quash the information on file against the said defendant. Motion granted by the Court and the prosecuting attorney ordered to re-submit said matter in accordance with law.”
Thereafter the cause was remanded to said examining magistrate, and a new complaint ivas filed against defendant,
Waiving for the time the question as to whether the petitioner is without a plain, speedy or adequate remedy at law, to such an extent that this court should entertain jurisdiction to hear and determine the questions here presented on merit, it may be well to say that the questions here presented are such as might have been presented by the plaintiff upon an appeal from an adverse judgment against him,
C. S., sec. 8865, provides that when a motion is made to set aside an indictment:
“The motion must be heard at the time it is made, unless for cause the court postpones the hearing to another time. If the motion is denied, the defendant must immediately answer the indictment, either by demurring or pleading thereto. If the motion is granted, the court must order that the defendant, if in custody, be discharged therefrom; or, if admitted to bail, that his bail be exonerated; or,- if he has deposited money instead of bail, that the same be refunded to him, unless it directs that the case be resubmitted to the same or another grand jury.”
C. S., see. 8866, reads:
“If the court directs the case to be resubmitted, the defendant, if already in custody, must so remain, unless he is admitted to bail; or, if already admitted to bail, or money has been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment; and, unless a new indictment is found before the next grand jury of the county is discharged, the court must, on the discharge of such grand jury, make the order prescribed by the preceding section. ’ ’
C. S., secs. 8865 and 8866, are more nearly analogous to Compiled Laws of Utah (1917), secs. 8881 and 8882, and the Revised Codes of Montana (1921), secs. 11893 and 11894,
It does not appear from this record where the alleged irregularities upon which the motion to quash the first information was. based did occur, 'but it may be assumed that they related to the original proceedings had before the magistrate. "We do not regard this as material, for in quashing the information the court directed that the ease be resubmitted in accordance with law. In an attempt to comply with this order, a new complaint was filed before the magistrate and a hearing had thereon, and the defendant, petitioner herein, was again held to answer to the district court for the same offense charged . in the original complaint. Petitioner contends that because a new complaint was filed before the magistrate upon this order of resubmission, a new arrest made, a new hearing had, and a new commitment made, this was in effect such new proceedings
If we correctly understand petitioner’s position, it is that upon a criminal information being quashed for any irregularity occurring prior to its being filed in the district court, upon an order of resubmission a new complaint before the magistrate may not be filed, nor may the testimony again be taken, but such subsequent proceedings must be limited to amending the original proceedings had. ¥e are .of the opinion that this contention should not be sustained, but that where an information is quashed and the cause is ordered resubmitted, if the defendant is in custody, he must so remain; if he has been admitted to bail, or money has been deposited instead thereof, the bail or money is answerable for his appearance in all subsequent proceedings that may be taken to correct the errors previously made, although the proceedings before the magistrate be had de novo, even to the extent of filing a new complaint and again taking the testimony. It appears in this case that the magistrate issued a new warrant of arrest, by virtue of which defendant was again arrested and again required to give bail for his appearance to answer the charge against him before the district court. We think that the arrest and subsequent demand for new bail was unnecessary, for the reason that under the statute his former bail was still bound for his appearance at every stage of the proceedings, but that the taking of a new bail bond in no manner vitiated the one that he had previously given, and that neither the filing of a new complaint, the retaking of the testimony nor the requirement of a new bail bond, which was not warranted under the circumstances, the offense charged having remained
It follows that the alternative writ should be denied and the proceedings dismissed, and it is so ordered, with costs to the defendant.