No. 14825 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA, 

VS . 

CURTIS CARDWELL, 

Plaintiff and Respondent, 

Defendant and Appellant. 

Appeal from: District Court 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 court pursuant 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 serious bodily 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. 

Cardwell moved to dismiss the amended information 

alleging that the filing of an amended information without 

leave of court was cnconstitutional, that Count I was duplicitous, and that Count I1 had been filed without the showing 

of probable cause. The District Court denied the motion, 

and Cardwell was tried on the information on 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 to 
substance prior to trial without leave of court. Appellant 

contends that allowing substantive changes in an information 

without judicial examination is unconstitutional. Appellant 

raises his constitutional challenge to section 46-11-403(1), 

MCA, under Article 11, Section 20, 1972 Montana Constitution. 

That constitution provision states in pertinent part: 

"All criminal actions in district court, except 

those on appeal, shall be prosecuted either by 

information, after examination and commitment 

by a magistrate or after leave granted by the 

court, or by indictment without such examination, 

commitment, or leave." 

Reading this section of the Constitution broadly, all 

stages of the information filing process including amendments require judicial examination. Under this interpretation of the provision, section 46-11-403(1) conflicts with 

the Constitution by allowing an information to be amended 

without leave of court. As such, the statute would be void. 

If, however, Article 11, Section 20, is construed more 

narrowly to apply only to the initiation of criminal actions, 

legislative control of subsequent stages of the information 

process would be constitutional. Construing the provision 

in this fashion would allow the amendment without leave of 

court statute to stand. 

To determine the meaning of Article 11, Section 20, 

1972 Montana Constitution, we must employ the same rules of 

construction employed to construe statutes. Keller v. Smith 

(1976), 170 Mont. 399, 404, 553 P.2d 1002, 1006. The 

intent of the framers of a constitution provision controls 

its meaning. Keller, 170 Mont. at 405, 553 P.2d at 1006. 

The intent of the framers should be determined from the 

plain meaning of the words used. If that is possible, we 

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

at 405, 553 P. 2d at 1006. 
The question now becomes whether the constitution 

provision is ambiguous. The State argues that Section 20 of 

Article I1 is ambiguous. It contends that the key word in 

the provision is "prosecuted." The State asserts that 

prosecuted can mean either institute or institute and carry 

forward. The State argues that interchanging these two 

meanings of the term results in different consequences in 

this case. If prosecuted is taken to mean institute, Article 11, Section 20, applies only to the 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 all steps in the information filing 

process including the filing of amendments. Section 46-11- 

403(1) would be unconstitutional under this interpretation 

of prosecute as it allows amendments without leave of court 

in direct conflict with the constitutional provision. 

Given this ambiguity, the State contends we must look 

to other means of interpreting Article 11, Section 20, to 

determine its meaning. We do not find it necessary to do so 

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

the term "prosecuted" is ambiguous. The terms "prosecute" 

and "prosecution" have long been defined in the judicial 

setting. As long ago as 1821, Chief Justice Marshall said, 

"To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the 

suit, is, according to the common acceptation of language, 

to continue that demand." Cohens v. ~irginia (1821), 19 

U.S. 264, 408, 5 L.Ed. 257, 292, 6 Wheat. 264. Since Cohens, 

numerous other courts have also defined prosecute or prose- 
cution to mean institute and carry forward. For example, 

the Virginia Supreme Court stated: 

"In common and ordinary acceptation, according 

to the definition given by lexicographers, and 

authorities generally, the word 'prosecution' 

means the institution and carrying on of a suit 

or proceeding to obtain 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 to justice and punishment by due course of law, and consists of a 

series of proceedings from the time formal accusation is made by swearing out a warrant, the 

finding of an indictment or information in a 

criminal court, the trial, and final judgment. 

[Citations omitted.]" Sigmon v. Commonwealth 

(1958), 200 Va. 258, 105 S.E.2d 171, 178. 

See also: Florida ex rel. Shevin v. Exxon Corp. (5th Cir. 

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; State v. Harvey (1972), 281 

N.C. 1, 187 S.E.2d 706, 717; Thacker v. Marshall (Okla. 

1958), 331 P.2d 488, 492, footnote 4; State v. Shushan 

(1944), 206 La. 415, 19 So.2d 185, 192; State v. Bowles 

(1905) , 70 Kan. 821, 79 P. 726, 728. 

In Montana we have not yet been so explicit in adopting 

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

did speak to the issue in Rosebud County v. Flinn (1940) , 

109 Mont. 537, 98 P.2d 330. There, we held that while the 

term prosecution was not broad enough to encompass investigation before filing a complaint or information, the term 

was broad enough to take in the trial and other proceedings 

previous to trial. 109 Mont. at 541-42, 98 P.2d at 333-34. 

Although Rosebud County does not specifically state which 

parts of the prosecution of a criminal action are included 

in the "prosecution" of the action, the broad language used 

to define prosecution indicates Montana intended to adopt 
the general definition of prosecution that would include 

amendments to a criminal information. 

The above analysis illustrates the clear and unambiguous meaning of Article 11, Section 20, 1972 Montana Constitution. All criminal actions prosecuted--initiated and 

carried forward--by information must be examined and committed by a magistrate or must 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 statute that allows for 

amendments without leave of court conflicts with this constitution provision 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. We now so 

hold. 

In declaring the substantive amendment without leave of 

court statute unconstitutional, we do not intend to totally 

preclude substantive amendments to criminal informations. 

It has long been held that an information can be amended 

both as to form and substance. United States v. Smith (D.C. 

Pa. 1952), 107 F.Supp. 839. On amendment of an information, 

however, certain procedural safeguards must be imposed. The 

above discussion indicates amendments of substance can only 

be filed with leave of court. This safeguard is necessary 

not only to comply with Montana' s constitutional requirements, but also to ensure 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 cannot be 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, 9 Ariz.App. 162, 450 P.2d 128, 131; Hanley v. Zenoff 

(19651, 81 Nev. 9, 398 P.2d 241, 242. See also, State v. 

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, we must 

do so now. However, in ordering the dismissal of the amended 

information, we do not mean to preclude the State from refiling charges against Cardwell 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 conviction based 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: 

afid Chief 4 ~ustice &&t#q 

,? e. w. 

Justices 0