No. 14825 INTHE SUPREME COURT OF THE STATE OF MONTANA 1979

THE STATE OF MONTANA,

VS

# . CURTIS CARDWELL, Plaintiff and Respondent,

Defendant and Appellant.

Appeal from: DistrictCourt of the Eighteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellant: A. Michael Salvagni argued, Bozeman, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Donald White, County Attorney, Bozeman, Montana Michael 

### J. Lilly argued, Deputy County Attorney,

Bozeman, Montana

'+,-LC,:, 3, 

### -. Filed: Submitted: October 31, 1979 ~ecided:APR 

## 2? 

## 1980

### Mr. Justice John Conway Harrison delivered the Opinion of the Court. On December 8, 1978, the Honorable W. W. Lessley granted the Gallatin County attorney leave to file an information accusing appellant,Curtis Cardwell, of committing the offenses of aggravated assault, tampering with witnesses, and aggravated kidnapping. Cardwell pleaded not guilty to all three counts, and trial was set for January 26, 1979. On January 17, 1979, the State filed an amended information without leave of courtpursuant to section 46-11- 403(1), MCA. The amended information changed the nature of the aggravated assault charge against Cardwell by adding the allegation that he committed the crime by threatening Jeff Sawyer with seriousbodily injury by the use of a knife. The amendments to the original information further altered the information by charging Cardwell with aiding or abetting another in committing the offense of tampering with witnesses rather than actually committing the crime as charged in the original information. The amended information also eliminated the aggravated kidnapping charge. Cardwellmoved to dismiss the amended information alleging that the filing of an amended informationwithout leave of court was cnconstitutional, that Count Iwas duplicitous, and that Count I1 

### had been filed without the showing of probable cause. The District Court denied the motion, and Cardwellwas tried on the informationon January 29 and 30, 

### 1979. A 

### jury found Cardwell guilty of both offenses charged in the amended information. This appeal followed. The thrust of appellant's argument on appeal centers around a challenge to section 46-11-403(1), MCA. That statute permits an information to be amended once as tosubstance prior to trialwithout leave of court. Appellant contends that allowing substantive changes inan information without judicial examination 

### isunconstitutional. Appellant raises his constitutional challenge to section 46-11-403(1), MCA, under Article 11, Section 20, 1972 Montana Constitution. That constitution provision statesinpertinent part: "All criminal actions indistrictcourt, except those on appeal, shallbe prosecuted either by information, afterexamination and commitment by a magistrate orafter leave granted by the court, orby indictment without such examination, commitment, or leave." Reading this section of the Constitution broadly, all stages of the information filingprocess including amendments require judicial examination. Under this interpretation of the provision, section 46-11-403(1) conflictswith the Constitution by allowing an information tobe amended without leave of court. As such, the statutewould be void. If, however, Article 11, Section 20, 

### isconstrued more narrowly toapply only to the initiation of criminal actions, legislativecontrol of subsequent stages of the information process would be constitutional. Construing the provision inthis fashion would allow the amendment without leave of court statute to stand. To determine themeaning of Article 11, Section 20, 1972Montana Constitution, 

### wemust employ the same rules of construction employed toconstrue statutes. Kellerv. Smith (1976), 170Mont. 399, 404, 553 P.2d 1002, 1006. The intentof the framers of a constitutionprovision controls itsmeaning. Keller, 170Mont. at405, 553 P.2d 

### at 1006. The intent of the framers should be determined from the plain meaning of the words used. If that ispossible, 

### we apply no other means of interpretation. Keller, 170Mont. 

### at405, 553 P.2d 

### at 1006.The question now becomes whether the constitution provision is ambiguous. The State argues that Section 20 of Article I1 

### isambiguous. Itcontends that the key word in theprovision is "prosecuted." The State 

### asserts that prosecuted can mean either instituteor institute and carry forward. The State argues that interchanging these two meanings of the 

### termresults indifferentconsequences in this case. If prosecuted 

### is taken tomean institute, Arti

### cle 11, Section 20, applies only tothe commencing of criminal actions. Section 46-11-403(1), MCA, which applies to amendments made after an action begins, would be constitutional under this analysis. The second usage of the 

### term, institute and carry forward, would make the constitution provision applicable to allsteps in the information filing process including the filingof amendments. Section 46-11- 403(1) would be unconstitutional under this interpretation of prosecute as

### it allows amendments without leave of court indirect conflictwith the constitutionalprovision. Given this ambiguity, the State contends we must look toother means of interpretingArticle 11, Section 20, to determine 

### itsmeaning. Wedo not find it necessary todo so because 

### we are not persuaded by the State's argument that the 

### term "prosecuted" 

### isambiguous. The 

### terms "prosecute" and "prosecution" have long been defined inthe judicial setting. As long ago as 1821, Chief Justice Marshall said, "To commence a suit, 

### istodemand something by the institution of process in

### a courtof justice; and toprosecute the suit, is, according to the common acceptation of language, to continue that demand." Cohens v. ~irginia (1821), 19 U.S. 264, 408, 5L.Ed. 257, 292, 6Wheat. 264. Since Cohens,

numerous other courts have alsodefined prosecute orprose-cution tomean institute and carry forward. For example, theVirginia Supreme Court stated: "In common and ordinary acceptation, according to the definitiongiven by lexicographers, and authorities generally, theword 'prosecution' means the institution and carrying on of a suit orproceeding toobtain or enforw some right or the process of trying formal charges against an offender before a legal tribunal. "In criminal law, it 

### is the means adopted to bring a supposed criminal tojustice and punishment by due course of law, and consists of a 

### series of proceedings from the 

### time formal accusation 

### ismade by swearing out a warrant, the finding of an indictment or information ina criminal court, the 

### trial, and finaljudgment. [Citations omitted.]" Sigmon v. Commonwealth (1958), 200 Va. 258, 105S.E.2d 171, 178. See also: Florida ex 

### rel. Shevin v. Exxon Corp. (5thCir. 1976), 526 F.2d 266, 270, footnote 16, 

### cert. denied 429 U.S. 829; Commonwealth v. Fattizzo (1972), 223 Pa.Super. 378, 299 A.2d 22, 28, footnotes 15-16; Statev. Harvey (1972), 281 N.C. 

### 1, 187 S.E.2d 706, 717; Thacker v. Marshall (Okla. 1958), 331 P.2d 488, 492, footnote 

### 4; Statev. Shushan (1944), 206 La. 415, 19 So.2d 185, 192; Statev. Bowles (1905)

## , 70 Kan. 821, 79 P. 726, 728. InMontana 

### wehave not yetbeen so explicit in adopting

a definition of "prosecution" or "prosecute." However, 

### we did speak to the issue inRosebud County v. Flinn (1940)

## , 109Mont. 537, 98 P.2d 330. There, 

### we held thatwhile the 

### term prosecution was not broad enough toencompass investigation before filing

### a complaint or information, the 

### term

was broad enough totake inthe 

### trial and other proceedings previous to trial. 109Mont. at541-42, 98 P.2d at333-34. Although Rosebud County does not specifically 

### state which parts of the prosecution of 

### a criminal action 

### are included inthe "prosecution" of the action, the broad language used todefine prosecution indicatesMontana intended to adoptthe general definition of prosecution thatwould include amendments to a criminal information. The above analysis illustrates the clear and unambiguous meaning of Article 11, Section 20, 1972Montana Constitution. Allcriminal actions prosecuted--initiated and carried forward--by information must be examined and committed by a magistrate ormust be carried forward after leave granted by the court. Thus, all stages of proceeding by information including amendments to the information must be reviewed by the court. Any statutethat allows for amendments without leave of court conflictswith this constitutionprovision and must fall. Section 46-11-403(1) allows for amendment of criminal informations without judicial supervision. The statute, therefore, conflicts with the Constitution and must be declared invalid. Wenow so hold.Indeclaring the substantiveamendment without leave of court statuteunconstitutional, 

### we do not intend to totally preclude substantive amendments tocriminal informations. It has long been held that an information can be amended both as to form and substance. United Statesv. Smith (D.C. Pa. 1952), 107F.Supp. 839. On amendment of an information, however, certainprocedural safeguards must be imposed. The above discussion indicates amendments of substance can only be filedwith leave of court. This safeguard 

### isnecessary not only to comply withMontana'

### s constitutional requirements, but also toensure a defendant receives a neutral determination of probable cause for detention under the amended charges. See Gerstein v. Pugh (1975), 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54. Another procedural safeguard involves notice to the defendant. One function of an infor-

### mation is to notify a defendant of the offense charged, thereby giving the defendant an opportunity to defend. State v. ~ropf(1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163; State v. Heiser (1965), 146 Mont. 413, 416, 407 P.2d 370, 371. This function of the information cannotbe dispensed with when the information is amended as to substance. The defendant must be notified of the change and afforded a reasonable time after the amendment to prepare a defense. Further,when an amended information is filed substantively changing the charges against a defendant, the defendant should be arraigned under the new charges. State

### v. Butler (19691,9Ariz.App. 162, 450 P.2d 128, 131; Hanley v. Zenoff (19651,81Nev. 9, 398 P.2d 241, 242. See also, Statev. DeWolfe (1904),29 Mont. 415, 417-19, 74 P. 1084, 1085. We

see no bar to substantively amending criminal informations if these procedures are followed. Having found the amendment without leave of court statute unconstitutional, we are constrained to dismiss the amended information filed here. Section 46-11-403(1)being unconstitutional, the amended information should have been dismissed by the District Court on the original motion by Cardwell, and he should not have proceeded to trial on the charges in the amended information. Since the District Court failed to dismiss the amended information,wemust do so now. However, in ordering the dismissal of the amended information, we do notmean to preclude the State from refiling charges againstCardwell with proper judicial supervision. We see no merit to Cardwell's argument that the State did not have probable cause to file any charges against him and are reversing this convictionbased solely on the ~istrict Court's improper ruling on the constitutional claim.

### The cause is reversed and the amended information against defendant ordered dismissed.

We concur: 

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