State v. Lopez , 98 Idaho 581 ( 1977 )

BAKES, Justice.

This case was initiated by a criminal complaint charging the defendant appellant Maria Lopez with the crime of prostitution. Lopez was tried before a jury in the magistrates division of the district court, and the jury returned a verdict of guilty of the crime of prostitution. Judgment was entered upon the verdict. Lopez appealed her judgment of conviction to the district court. In a memorandum decision, the district court entered judgment affirming the judgment of conviction by the magistrate. Lopez then appealed from the district court to this Court.

Lopez challenges the judgment of conviction entered against her upon two grounds: (1) that I.C. § 18-5613,¹ the section of the criminal code under which she was convicted, is unconstitutionally vague; and (2) that the criminal complaint under which she was charged, prosecuted and convicted was unconstitutionally vague because it did not further define the terms used in the statute nor did it apprise her what conduct of hers was in violation of the statute. We believe that the latter challenge presents the issue of whether the complaint charged a criminal offense, i. e., whether it alleged conduct on her part with sufficient particularity so that (1) she would be informed what conduct of hers allegedly constituted an offense and (2) the complaint could be used to bar a second prosecution for the same conduct. We hold that the complaint in the case was defective because it did not charge and describe an offense, and that prosecution under the complaint was a violation of Lopez’ due process rights under Art. 1, § 13, of the Idaho Constitution. Lopez’ conviction must be reversed for those reasons. Thus, we find it unnecessary to consider whether I.C. § 18-5613 is unconstitutionally vague and express no opinion on that question.

The Due Process Requirement of Particular Description of the Offense:

The criminal complaint under which Maria Lopez was charged, tried and convicted accused her of violating I.C. § 18-5613 in the following manner:

“That the said defendant, MARIA LOPEZ, on or about the 25th day of October, 1973, in the County of Ada, State of Idaho, then and there being, did then and there knowingly, wilfully, intentionally and unlawfully engage in sexual activity as a business.” (Clk.Tr., p. 3).

This Court held in State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937), that the due process clause of Art. 1, § 13, of the Idaho Constitution, gives a criminal defendant the right to be apprised of the specific facts of the commission of the crime for which he is accused so that he will know what conduct of his has been alleged to be criminal and will be able to prepare his defense. In that case, this Court considered an appeal from a judgment of conviction for manslaughter brought under an information containing the following allegation of criminal conduct:

“ ‘[T]hat on or about ... the 4th day of February 1936, at the County of Nez Perce in the State of Idaho, the aforesaid W. F. McMahan then and there being committed the crime of manslaughter who then and there did wilfully, unlawfully and feloniously kill one Stella Fleischman, a human being, contrary to the form of the statute in such ease made and provided.’ ” 57 Idaho at 243, 65 P.2d at 156.

In the McMahan case this court overturned the judgment of conviction upon the ground that the information had failed to charge an offense, giving the following explanation for its decision:

“Our statutory provisions relative to indictments and informations were copied in 1864, by the Idaho territorial legislature, from the laws of California which were enacted in that state in 1851. During territorial days, and for a period of many years of statehood, the plain mandates of these statutory provisions were obeyed by the courts, and it was the uniform practice in Idaho, in homicide cases, to state in indictments and informations the means by which, and the manner in which, the death charged was accomplished. In 1914 this court had under consideration, and decided, State v. Smith, 25 Idaho 541, 138 P. 1107, wherein Smith, who had been held to answer for manslaughter, was attempted to be charged in the following language:

“ ‘That the said defendant, Charles C. Smith, at the time and place aforesaid, did unlawfully and feloniously kill one Clara P. Poy, a human being; contrary to the form of the statute in such case made and provided.’

“Commenting on that information the court said:

“ ‘It will be observed from the foregoing provisions of the statute that the statute of this state requires an information or accusation against a person to be direct and certain as to the offense charged, that is, as to the particular name, character, or grade of crime that the party is accused with, and it also requires that it be direct and certain as to the “act or omission” which it is alleged constitutes the crime. In other words, to simply charge that a person committed murder or larceny merely charges the name of the offense. That alone is not sufficient. It is necessary to in some way inform the party accused as to how it is claimed he committed the murder, whether by shooting, by striking a blow, by drowning, poisoning, or in some other manner perpetrating the offense; or, if he committed larceny, what property he took. “ ‘. . . [T]his case well illustrates the purpose and meaning of the statute. A defendant before being placed upon trial for his life or liberty is entitled to be apprised not only of the name of the offense with which he is charged, but, in general terms, of the manner in which he is charged with having committed the offense. The statute is plain and explicit in this respect.’ ” 57 Idaho at 245-247, 65 P.2d at 158. (Emphasis in original).

The Court then went on to explain that in State v. Lundhigh, 30 Idaho 365, 164 P. 690 (1917), it had abandoned the rule of State v. Smith, supra, and held that an information charging a violation of the statute by reciting the statutory language, but not alleging the specific circumstances of the commission of the crime was sufficient. The Court explained why it was abandoning the rule of Lundhigh and readhering to that of Smith:

“[I]t is the clear intent and purpose of our statute that the defendant shall be made acquainted with the nature of the charge against him by reading the information, and that it must contain ‘a statement of the acts constituting the offense in ordinary and concise language.’ This is a right which no one has discretion to deny.

“To put a man on trial without giving him, in the information, ‘a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended,’ and to let him know these facts, for the first time when his trial is in progress, is to deprive him of the protection the statute was designed to give him and deny him due process of law in violation of article 1, section 13 of the Constitution.” 57 Idaho at 248-250, 65 P.2d at 159 (emphasis in original).

In McMahan this Court held that putting the defendant on trial without setting forth in the information the acts constituting the offense for which he was charged was a violation of the due process clause of Art. 1, § 13, of the Idaho Constitution. I.C. § 19-3901, which this Court made a rule of the Court in Rule 27 of the Rules of the Court for Magistrates Division of the District Court and District Court, provides that criminal proceedings in the magistrates division of the district court “must be commenced by complaint . . . setting forth the offense charged, with such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint.” I.C. § 19-3901 imposes the same requirement of stating an offense as do I.C. §§ 19-1409, -1411, the sections involving indictments which the Court was interpreting in McMahan. State v. Henry, 83 Idaho 167, 359 P.2d 514 (1961). Thus, under the authority of McMahan, we hold that it is a violation of the due process clause of Art. 1, § 13, of the Idaho Constitution to put a defendant on trial in the magistrates division of the district court without first apprising her in the complaint of the offense charged by reference to “particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of, . ” Because the complaint under which Lopez was prosecuted did not apprise her of the specific conduct which the state alleged to be criminal, she was deprived of due process of law when she was tried under that complaint. See also State v. Groseclose, 67 Idaho 71, 171 P.2d 863 (1946).

Also, the failure of the complaint in this case to charge the offense “with such particulars of time, place, person and property,” as required by I.C. § 19-3901 poses a double jeopardy issue because the accused would have no way of knowing what transaction was involved in the conviction. As stated in State v. Grady, 89 Idaho 204, 404 P.2d 347 (1965):

“Correlative with these statutory requirements for an indictment and with the tests of its sufficiency, there is yet another test as to its sufficiency. If the information fails to describe the offense with such particularity so as to serve as a shield in the event of a second prosecution for the same offense, such information is insufficient. .

“In State v. Lottridge [29 Idaho 53, 155 P. 487 (1916)], this court stated:

“ ‘This court in the case of State v. O’Neil, 24 Idaho 582, 135 P. 60 [(1913)], discussing the sufficiency of the indictment and quoting from the case of Cochran v. United States, 157 U.S. 286, 15 S.Ct. 628, 39 L.Ed. 704 [(1895)], said: “But the true test is . whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’’ . . .”’89 Idaho at 209, 404 P.2d at 350 (Emphasis added).

See also State v. Doolittle, 58 Idaho 1, 68 P.2d 904 (1937). The complaint under which Maria Lopez was prosecuted did not describe the crime for which she was accused with sufficient particularity to state an offense or to bar a second prosecution and conviction for the same offense. It was defective for both of these reasons.

Consideration of the Complaint Upon Appeal:

Idaho Criminal Rule 12 provides:

“RULE 12. PLEADINGS AND MOTIONS BEFORE TRIAL — DEFENSES AND OBJECTIONS. — . . .

“(b) PRETRIAL MOTIONS. Any defense, objection or request which is capable of determination without trial of the general issue may be raised before the trial by motion. The following must be raised prior to trial:

“(2) defenses and objections based on defects in the complaint, indictment or information (other than it fails to show jurisdiction of the court or to charge an offense which objection shall be noticed by the court and [at] any time during the pendency of the proceedings); . . (Emphasis added).

I.C.R. 12(b)(2) plainly states that the defense that the complaint does not charge an offense is not a defense which must be raised by motion before trial; on the contrary, even if this defense is not raised, the rule provides that it shall be noticed by the court at any time during the pendency of the proceedings. In this respect the defense is treated in the same manner as a jurisdictional defense. We hold, therefore, that like a jurisdictional defense, which may be raised at any stage of the proceedings, even by an appellate court on its own initiative, State v. Mowrey, 91 Idaho 693, 429 P.2d 425 (1967), the defense of the failure to charge an offense may also be raised at any stage of the proceedings, whether the proceedings are before the trial court or before an appellate court, and may be raised either by the parties or the court upon its own initiative. See Carlson v. United States, 296 F.2d 909 (9th Cir. 1961); 1 Wright, Federal Practice & Procedure, § 193, pp.'403 — 404 (1969), which considered a similar provision of the federal criminal rules. Accordingly, we hold that the complaint under which the accused was convicted did not state an offense and that the conviction of the defendant Lopez under this complaint was a violation of her rights under Art. 1, § 13, of the Idaho Constitution.

Judgment of conviction reversed.

DONALDSON, J., concurs. McQUADE, former Chief Justice, concurred in judgment of reversal of conviction before resigning from the court effective March 17, 1976, but did not participate in the opinion.

1 . “18-5613. Prostitution. — (1) Prostitution. A person is guilty of prostitution, a misdemeanor, if he or she: (a) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or (b) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity.

“ ‘Sexual activity’ includes homosexual and other deviate sexual relations. A ‘house of prostitution’ is any place where prostitution or promotion of prostitution is regularly carried on by one (1) person under the control, management or supervision of another. An ‘inmate’ is a person who engages in prostitution in or through the agency of a house of prostitution. ‘Public place’ means any place to which the public or any substantial group thereof has access.”