Opinion
No. 6410.
December 5, 1936.
Original proceeding to review the action of the Honorable Everett E. Hunt, Presiding Judge of the District Court of the Second Judicial District in and for the county of Clearwater, in quashing an information. Order quashing information vacated and set aside.
Bert H. Miller, Attorney General, Ariel L. Crowley, Assistant Attorney General, and Samuel F. Swayne, Prosecuting Attorney for Clearwater County, for Plaintiff.
"Excess of jurisdiction" is not synonymous with "without jurisdiction" but is properly defined as follows:
"that an act, although within the general power of the judge, is not authorized and is void with respect to the particular case, because the conditions which alone authorize the exercise of his general power in the case are wanting." (23 C. J. 181, note 17; Broom v. Douglass, 175 Ala. 268, 57 So. 860, 864, 44 L.R.A., N.S., 164; Conners v. City, 136 Tenn. 428, 189 S.W. 870, 871; Beckwith v. McAllister, 165 S.C. 1, 162 S.E. 623, 628; Carter v. Mitchell, 142 So. 514, 517; Vaught v. District Court, 46 Idaho 642, 269 P. 595; Hay v. Hay, 40 Idaho 159, 232 Pac. 895.)
The granting of a motion to quash, on a ground not permissible under the statute, is an excess of jurisdiction, reviewable on writ of review. ( Heitman v. Morgan, 10 Idaho 562, 79 P. 225; Cummings v. Steele, 6 Idaho 666, 59 P. 15; McConnell v. State Board of Equalization, 11 Idaho 652, 83 Pac. 494.)
Edward T. Johnson and Paul W. Hyatt, for Defendant.
The holding of this court in State v. Miller, 52 Idaho 33, 10 P.2d 955, and in State v. Foell, 37 Idaho 722, 217 Pac. 608, if applicable in this case, should be overruled by virtue of the authorities hereinafter set forth:
No person shall be deprived of life, liberty or property without due process of law. (Art. 1, sec. 13, Idaho Const.)
Habeas corpus will lie to examine into the evidence on a preliminary hearing. ( Re Baugh, 30 Idaho 387, 164 P. 529.)
But the general rule seems to be that persons discharged on bail are not restrained of their liberty so as to be entitled to discharge on habeas corpus. (29 C. J., sec. 14, p. 22.)
The dissenting opinion in the case of State v. Chance, (N.M.) 31 A.L.R. 1470, correctly states the law with reference to the quashing of the indictments returned on insufficient or incompetent evidence.
If an indictment is found without legal evidence and in violation of the law, a person is deprived of his liberty and property without due process of law. (See dissenting opinion of Justice Sanborn in McKinney v. United States, 199 Fed. 25, 31, 117 C.C.A. 403.)
The court may inquire into the evidence upon which grand jury has found an indictment. ( Royce v. Territory, 5 Okl. 61, 47 Pac. 1083. See, also, 31 A.L.R. 1485.)
The courts have inherent power to set aside an indictment whenever it appears that it was found without evidence or upon illegal or incompetent evidence. ( People v. Glen, 173 N.Y. 395, 66 N.E. 112. See, also, New York cases cited 31 A.L.R. 1486.)
This is an original proceeding commenced in this court to review the action of the Honorable Everett E. Hunt, Presiding Judge of the district court of the second judicial district of the state of Idaho, in quashing an information charging one John W. Snyder, and another, with the crime of grand larceny. It appears from the record that September 30, 1935, a criminal complaint was filed in the probate court of Clearwater county, charging Snyder, and another, with the crime of grand larceny, to wit, the theft of a Tree Climber Woodsaw of the alleged value of $90. On the same day, upon a preliminary examination, before the judge of said probate court, sitting as a committing magistrate, the defendants were held to answer said charge in the district court of said county. April 17, 1936, an information was filed in said district court charging the said Snyder, and another, with the commission of the said crime of grand larceny. On the same day, to wit, April 17, 1936, Snyder moved that the information be quashed as to him, upon the grounds that the said district court was without jurisdiction of his person, that the district court was without jurisdiction to hear said cause or to try him, and that the district court was without jurisdiction of the subject matter of the action, in (a) that the state had failed to prove, at the preliminary examination, that said personal property was of the value, or was in excess of the value of $60, and (b) that the evidence adduced at the preliminary examination failed to show there was reasonable or probable cause to believe that he, Snyder, committed the crime of grand larceny. July 11, 1936, an order was made, and July 21, the order so made was filed, quashing the said information as to the said John W. Snyder.
Section 19-1501, I. C. A., prescribes the grounds upon which an indictment may be quashed, as follows:
"1. When it is not found, indorsed and presented as prescribed in this code.
"2. When the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, are not inserted at the foot of the indictment, or indorsed thereon.
"3. When a person is permitted to be present during the session of the grand jury, and when the charge embraced in the indictment is under consideration, except as provided in chapter 10 of this title.
"4. When the defendant has not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge, either to the panel or to any individual grand juror."
Section 19-1204, I. C. A., provides that:
"The provisions of this code in relation to indictments, and all other provisions of law applying to prosecutions upon indictments, to writs and process therein, and the issuing and service thereof, to motions, pleadings, trials and punishments, or the execution of any sentence, and to all other proceedings in cases of indictment, whether in the court of original or appellate jurisdiction, shall in the same manner and to the same extent, as near as may be, apply to informations and all prosecutions and proceedings thereon."
The record, therefore, presents but one question for decision: Section 19-1501, supra, having prescribed the grounds upon which a motion to set aside an indictment may be made, and section 19-1204, supra, having made the provisions of section 19-1501, supra, applicable to informations, upon a motion to quash an information are all other grounds excluded?
In People v. Butler, 1 Idaho 231 (decided in 1869), this court passed upon the identical question presented here: In determining whether a motion to quash an indictment could be made upon any ground other than some ground, or grounds, prescribed by statute (then section 274 of the Criminal Practice Act, now section 19-1501, supra), this court applied the rule that expressio unius est exclusio alterius, and held that the statute having prescribed the grounds upon which a motion to set an indictment aside may be made, all other grounds were excluded, and that we must be governed by the statute in everything prescribing the manner, form and substance of indictment, and the procedure thereunder, throughout the entire course of a criminal investigation. This court has since followed People v. Butler, supra, in every case in which the question has been presented. A few cases are: State v. Foell, 37 Idaho 722, 217 P. 608, State v. Arregui, 44 Idaho 43, 254 P. 788, 52 A.L.R. 463, and State v. Miller, 52 Idaho 33, 10 P.2d 955.
Order quashing information is annulled, vacated and set aside, with directions to reinstate the information.
Givens, C.J., Budge and Ailshie, JJ., concur.
Morgan, J., deeming himself to be disqualified, did not sit with the court in this case nor participate in the decision.