In Re Bottjer , 45 Idaho 168 ( 1927 )

A criminal complaint was filed against petitioner in the probate court charging him with embezzlement stated as three separate offenses. Preliminary examination was waived, and after being bound ov to the district court, without being represented by counsel, petitioner plead guilty to the information filed, and the court pronounced an indeterminate sentence of from five to twenty years upon each of the three separate counts in the information.

The petition charges some twenty-three defects which may be grouped under the following heads:

1. Defects in the proceedings in the probate court.

2. Defects in the information filed in the district court.

3. The unconstitutionality of C. S., sec. 5279.

4. Defects in the judgment of the district court.

The points raised by the petitioner relative to the defects in the proceedings before the probate court and in the district court were waived, no motion to quash, demurrer or motion in arrest of judgment having been filed, and the petitioner's first and only attack made upon the proceedings being in the application for the writ herein. (State v. Bilboa,33 Idaho 128, 190 P. 248; In re Davis, 23 Idaho 473,130 Pac. 786; In re Dawson, 20 Idaho 178, 117 P. 696, 35 L.R.A., N. S., 1146; In re Alcorn, 7 Idaho 101, 60 P. 561; State v.Hinckley, 4 Idaho 490, 42 P. 510; C. S., secs. 8870-8878.)

Petitioner contends that the information fails to allege an offense under C. S., sec. 5279, for the reason that it did not charge "with intent to injure or defraud the bank."

Whether by conclusion or otherwise the information did in fact charge embezzlement, and it is evident from all the allegations of the information that it was the pleader's intent to charge a violation of sec. 5279, a crime over which the court had jurisdiction; hence the information is not vulnerable to attack by habeas corpus. (C. S., secs. 8878, 9019; In reDawson, supra; Ex parte Webb, 225 U.S. 663, 32 Sup. Ct. 769,56 L. ed. 1248; Connella v. Haskell, 158 Fed. 285; Ex parteKaster, 52 Cal.App. 454, 198 P. 1029; In re Robinson,73 Fla. 1068, 75 So. 604, L.R.A. 1918B, 1148; Jackson v. State,71 Fla. 342, 71 So. 332; Bopp v. Clark, 165 Iowa, 697, Ann. Cas. 1916E, 417, 147 N.W. 172, 52 L.R.A., N.S., 493; 13 Cal. Jur. 232, 233, sec. 14, n. 9; 29 C. J., 41, sec. 34, n. 33.)

Petitioner urges that the provisions of C. S., sec. 5279, are unconstitutional for the reason that it singles out bankers as a particular class and is class legislation. C. S., sec. 5279, while pertaining to bankers, operates upon all such in like circumstances with equality. As said in Jones v. Power County,27 Idaho 656, 150 P. 35:

"A statute is general if its terms apply to, and its provisions operate upon all persons and subject matters in like situation."

Applying this rule, the supreme court of Colorado, in a situation identical with that herein, said:

"The argument is that the act in question, by making the inhibited acts a crime only as to bankers, is class legislation and renders them amenable to punishment for acts that may be done by others with impunity, and hence deprives them of their liberty without due process of law, or without the sanction of the law of the land. We think this claim is fallacious, that the act is not within the class of legislation inhibited by these provisions of the constitution. It is, in a sense, class legislation but not in the invidious sense that renders it obnoxious to the objections urged here. The law of the land is said to mean a law binding upon every member of the community under similar circumstances (Wally's Heirs v. Kennedy, 2 Yerg. (Tenn.) 554, 24 Am. Dec. 511); and when the law applies to all persons engaged in a certain occupation or business, and each one is, without distinction, amenable to its provisions solely because he pursues such occupation or business, it is then 'binding upon all persons of the community under similar circumstances.' Such legislation has uniformly been upheld." (Robertson v. People, 20 Colo. 279, 38 P. 326; Imboden v.People, 40 Colo. 142, 90 P. 608; McClelland v. City ofDenver, 36 Colo. 486, 10 Ann. Cas. 1014, 86 P. 126.)

This section, applying equally to all persons following the occupation of banking, is not such class legislation as to make the statute unconstitutional.

But one offense may be charged in one information. (C. S., secs. 8812-8829.) One offense was set forth in the information under consideration. Petitioner could plead guilty to but one offense and but one sentence of from five to twenty years was proper under C. S., sec. 5279, which the court had jurisdiction to pronounce. Any further attempted sentence was surplusage and void. (C. S., sec. 9035; In re Erickson, 44 Idaho 713,260 Pac. 160, filed September 22, 1927; In re Chase, 18 Idaho 561,110 Pac. 1036; Ex parte Tani, 29 Nev. 385, 91 P. 137, 13 L.R.A., N.S., 518; Ex parte Cica, 18 N.M. 452, 137 P. 598, 51 L.R.A., N.S., 373.)

The writ is quashed and the petitioner is remanded to the custody of the warden of the penitentiary.

Wm. E. Lee, C.J., and Budge, Taylor and T. Bailey Lee, JJ., concur.