The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-02-15

q substantial COPY Of the form enacted bY
the Legislature OF she state Of California
aud found In sec. a1i. chap OF the eods
OF criminal procedure OF that state that y
to say, the information reads that marry
Thompson IL accused by the county Az
tofnsv by this information or she crime OF
embexHlemenL" etc There IL totai
omission, 10 will BE- aoen, to aecuse the de-
fen AIT 'in the name ami by tae authority
OF the state Of Montana" Mhether the
omission Of such Avcrm M renders an IN
formation fatally defective never seems 70
have been decided In California. hut II
the poini raisei by the counsel Tor the de-
PENDANT is we'll taken. the only logical view
OF the California statute, which permits
I the words quoted 20 be lett out OF an IN or
nation, Is that suoh statute 10 In viola
I ton Of the consultation OF TIE stale, De-
cause substantially the same clause Ia iela-
tion 20 the conduct Of criminal cases Is TO
be found IN the California constitution that
Is 30 be found In our own and it would FOL
/ low that if,the use OF the exact words OF ths
| consultation concerning prosecutions Is
made mandatory by the constitution. arr
legislation which attempts 20 eonstrus ths
use OF the words a. directory BY emitting
them would be OF no effect and unconstitu-
uonal. There 10 no escape from thia con
elusiOn when We consider that the pro-
visions Of the California constitution, ike
those Of Montana, are mandatory and pro-
] hibitoTy unless by express words they are
! declared 30 be otherwise.
! think there 10 great deal OF 70 &C IN
ths Argument that soc county attorney
I ahould charge ths defendant In ths name
aud by the authority Of the state. tbus
1 pleading the power under which be sets.
I And 10 Is suggestion OF the court that he
proceed TO do 30 10 the future. lest his dspar-
turs from the exact words OF the constitu-
tion may DO followed by complications
which might Tsault in SONS OF those disas-
ters which Mr.. Bishop says occur BY the
''somswhAt differing views OF particular
judges"
Several Of the authorities cited by the
Defendants counsel bear directly upon this
question, particularly sue case Of White
sides VI. he People. decided ia 1879 and
reported in ] Breese. page q, anu Paris
vs.. The People, Is ILL.,, ga. In neithe. OF
these opinions, however, IL there full DIS
cussion OF the point. In the case OF Sains
W. Ihs State. IL Texas court Of appeals, IA,
cited bY the defendant the court held th8
omission OF the words in the name and by
ths Authority Of the ststs OF Texas.
Indictment but u Is to be observed that
under the coda of criminal procedure In
Texas 10 Is required that an information
shall commence In the name aud DY tue
authority Of the state Of Texas, and the
decision. which is very brief. may have
been based upon failure to comply with
this statutory requi ement. SO. too, IN the
case Of HOrue vs.. the state, 81 Ca, page 80,
the court held that If al omission 80 charge
the crime in the name aud behalf OF tie
citizsnI Of Georgia" had been brought to
she attention Of the court before trial the
indictment woald have been held bad. But
again the decision seems TO have exp osslg
tn ned upon a section OF the GEorgia code,
which prescribed the precise form OF an In
dictment containing ths NO ds omitted.
The court then quotes from a deo.sion o:
the preme cOurt in Kentucky, rendered
a .NHIal -
msnt which omitted the words in the
name aad by the authority OF the common
wealth OF Ksntuoky" was good. An opin-
ion IL also quoted from IN the state OF
Mississippi, whore tie exact point was
raised ana the court OF errors and appeals
OF that state held that under a constitution
like that Of Montana 10 was not necessary
% charge the offsnse I'm the name aud By
the authority OF the state" Archbold on
Criminal Pleading 10 also quoted flOm, as
are Bishop and Francis Wharton.
The oou then, Ia commenting upon
these fullnca. says: True. these decisions
refer to indictments presented by grand
iuries. but the analogy between the indiot
ment ana the info nation must be resog-
niZsd. and she rulei governing tue pleading
and procedure and . actico Ia relation to
indictments are expressly made APP
ploaole to prosecutions " infoi-
nation by the laws OF Montana.
As applied to indictments the Foundation OF
the decisions seems 10 be that the prosecu-
tion can only be conducted By tho authority
o. the state and Ia It's name. and that where
the state appears "a the llaintl IN the
title. and the Information alleges a crime
and that the states laws and diQnitV have
been violated, these latter avsrments can
only be made and AIMED for issue under
the constitution In the name of the atats
and by the states authority as contradis-
tinguish0d from any other authority what
soevsT, and this authority being exclusive
is made apparent by tbs tltle az we'll as by
ths cOucluaion Of the information; and
therefore the precise words WHEN dele
gated rho power 90 conduct the D. osscution
aud WhIou limit ~ cOnddcs 10 the nums
and authority OF ths state and SO alone au
thorize its conduct need not be formally
aveTred.
III there ia any fallaey az all IN this
reasoning, ~ must lie IN the premise that
the title Of the iniormstIon--the title OF q
proceeding not within the common law
Jurisdiction Of ths court-as to felonies.
may be resortei 10. "a, dedncs the conclu-
sion that the county attorney acts IN the
name Of the state. ana Ia the further pre-
niiss that ia sd.ctional authority ma be-
inferred without directly pleading suca
autho ity.
without discussing tho matter at greater
length j am iuc.iuet TO hold with tho re-
cent authorities relaxing tho vory strict
rules of criminal pleading that the omis-
sion Of the words IN the name and bv the
authority Of ths state while bad f0im. IL
NOS fatal 30 th0 Information. / do not,
howevo feel that tie court Is bound ~
this ruling n further iuvostIRation warrants
q different conclusion"
No opinion - expressed upon the several
other points IA tie demurrer, but upon the
fourth ground the information 10 quashsd
and tie defendant Is discharged ana his
bail exouefGtel.