United States v. Smith , 4 Alaska 396 ( 1911 )

OVERFIEED, District Judge.

By the Constitution of the United States (article 6 of the amendments thereto), it is provided, among other things, that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him, and section 38, c. 7, pt. 2, of the Alaska Code, p. 51, provides, among other things, that the indictment must contain:

“Second, a statement of tbe facts constituting tbe offense in ordinary and concise language * * * and in sucb manner as to enable a person of common understanding to know wbat is intended.-”

Section 413, pt. 2, of the Alaska Criminal Code, p. 114,-pro-vides :

“That the complaint is to be deemed an indictment within tbe meaning of tbe provisions of chapter 7, title 2, of this act, prescribing what is sufficient to be stated in such pleading and the form of stating it.”

Section-449, pt. 2, of the Alaska Criminal Code, p. 119, provides, with reference to appeals from the commissioner’s courts:

“The appellate court has the same authority to allow an amendment of the pleadings, on an appeal in a criminal action, that it has on an appeal in a civil action.”

Section 1007, pt. 4, of the Alaska Code, p. 348, entitled “Amendment of pleadings in appellate courts,” provides that:

“In all eases of appeals, * * * the plaintiff’s cause of action, or of the defendant’s counterclaim or set-off, or other ground of defense filed before the justice may be amended upon appeal in the appellate court to supply any defect, deficiency, or omission therein, by filing formal pleadings therein, when by such amendment substantial justice will be promoted.”

The only question now before the court is whether, from the provisions of the Code above quoted or any other pertinent thereto, the United States has a right at this time to amend the complaint filed in the above entitled action and now filed in this court. Admittedly no objections to the complaint were filed in the justice’s court, either by demurrer or motion in arrest of judgment. However, such waiver does not prejudice the rights of the defendant in this court, upon the grounds mentioned, in the demurrer filed herein. State v. Mack, 20 Or. 234, 25 Pac. 639. Nor is it deemed necessary to cite authority to the effect that a defendant in a criminal action cannot waive a constitutional guaranty, or right, such at least as is in question here. Nor can it be seriously contended that a constitutional provision granting to an accused person the right “to demand the natúre and cause of the accusation against him” can be waived or surrendered by him; and, if an indictment (complaint) does not contain such a description of the offense as to notify the accused of the nature or cause of the accusation against him, it is a nullity and may be objected to at any time.

It cannot be seriously contended that the facts set out in the complaint filed herein upon the appeal from the justice’s court informed the accused in any way of the crime against him other than by reference to the Codes of Alaska, or other publications provided by the government for use in the territory of Alaska, and which in effect could no more than direct the accused to seek the Code or such publications as are mentioned above to discover of what crime he was accused; and, should he have been fortunate enough to have secured a copy of the law, he would have found section 25 to have contained provisions for. assault by a person armed with a dangerous weapon, or being armed with a dangerous weapon, for the crime of threatening another or for unlawfully striking or unlawfully wounding another; of which particular crime he was being accused, and for which he was to prepare for trial, he could but guess.

The accused has been deprived of a constitutional guaranty and an express right provided under the Code of Alaska. Such a defect appearing upon the face of the complaint cannot be corrected by amendment in this court.

The demurrer is sustained upon both grounds, and. the accused ordered discharged.