State v. Wilson , 41 Idaho 598 ( 1925 )

As appears in the statement of facts in the opinion written by Chief Justice Dunn, appellant was charged with and thereafter convicted under C. S., sec. 5276, of the crime of having made a false report of the condition of the Declo State Bank to the Commissioner of Finance and Industry. A motion to quash the information was made by appellant and denied. By his motion to quash appellant sought to interpose the objection that a grand jury in and for Cassia county, duly and regularly called, had theretofore ignored the identical charge contained in the information and therefore, under the provisions of art. 1, sec. 8, of the constitution he could not be held to answer or for trial upon the information of the public prosecutor.

The action of the court in denying the motion to quash the information cannot be reviewed, for the reason that the ruling upon the motion was not incorporated in a special bill of exceptions as required by C. S., secs. 9008 and 9010. It is well settled in this jurisdiction that in order to review the action of the trial court in denying a motion to quash an information, the same must be presented in a special bill of exceptions. (State v. Maguire, 31 Idaho 24, 169 P. 175; State.v. White, 33 Idaho 697, 197 P. 824; State v. Colvard, 33 Idaho 702,197 P. 826; State v. Snook, 34 Idaho 403, 201 P. 494;State v. Ricks, 34 Idaho 122, 201 P. 827; State v.Moodie, 35 Idaho 574, 207 P. 1073; State v. Cosler, 39 Idaho 519,228 P. 277; State v. Petereit, 39 Idaho 715,229 P. 747.)

During the course of the trial appellant called the former prosecuting attorney of Cassia county and propounded to him the following question:

"Q. I will ask you if, as prosecuting attorney of Cassia county, you called the grand jury's attention to a report submitted by the officers of the Declo State Bank to the Department of Commerce and Industry of the State of Idaho, the report being as of May 4, 1920."

An objection to this question was interposed by the state and sustained. Whereupon appellant offered to prove by the said former prosecuting attorney and by the foreman of the grand jury that "the report under consideration here of the condition of the bank at Declo, Idaho, under date of May 4th, 1920, being state's exhibit 4, was considered by the grand jury for Cassia county, State of Idaho, in all of its subdivisions and in its entirety; that the statements rendered therein were deliberated upon and considered by the grand jury for several days and that the prosecuting attorney for Cassia county called the attention of the grand jury to the fact that the statements contained in said report were false and did not correspond with the actual condition of the bank as it existed on the 4th day of May, 1920, and that the said grand jury considered making a charge or indictment against the defendant Wilson, based upon the said report and upon the disclosures of the books and records of the bank and refused to return an indictment based upon said report and charge for the reason that they had previously returned indictment based directly upon the books and that they considered the proper way to return a verdict or indictment was upon the books and not upon the report; that the charge considered by the grand jury is the same charge as is embraced in the information filed by the prosecuting attorney of Cassia county, State of Idaho, upon which the defendant, C.J. Wilson is now upon trial in this court; that the said witnesses and each of them will testify that the said grand jury ignored said charges and refused to indict thereon," which tender of proof the court denied. It will be observed that appellant sought by this offer of proof to raise the same question presented in his motion to quash the information.

The precise question is whether, during the course of the trial appellant may show, by calling the prosecuting attorney of the county and members of the grand jury, that the identical charge contained in the information had theretofore been ignored by the grand jury. That such proof may be offered in support of a motion to quash will find support in some jurisdictions. (Eubanks v. State, 5 Okl. Cr. 325,114 P. 748.) But should the court stay the proceedings in the midst of the trial for the purpose of receiving evidence of the character suggested, which evidence does not go to the issue of the guilt or innocence of the accused, when by motion to quash a proper and orderly procedure is available, by which such question may be determined in the lower court and reviewed on appeal?

In the case of Royce v. Territory, 5 Okl. 61, 47 P. 1083, the court, in considering the refusal of the lower court to set a day for the taking of testimony relating to the action of the grand jury which found the indictment, where such question was properly presented upon appeal, held that the defendant had no other way than by motion to quash to have the question presented to the attention of the court or considered by it, as that question could not be presented either upon a motion for a new trial or upon a motion in arrest of judgment.

In the instant case the only way in which appellant could present the question to the lower court was upon a motion to quash, and such motion having been decided adversely to him, he could not thereafter be permitted to introduce evidence in support of his contention during the trial or raise the question in that manner, his only remedy being to attack the court's ruling upon appeal, which in this case he is precluded from doing by his failure to properly present the question by a special bill of exceptions. It follows that the lower court did not commit reversible error in denying the offer of proof. In my opinion Chief Justice Dunn, now deceased, correctly disposed of all other questions involved upon this appeal. The judgment of the lower court should be affirmed.