State v. Spencer , 101 Utah 274 ( 1941 )

McDONOUGH, Justice

(dissenting).

I dissent.

The opinion of the court concludes that the information; does not charge a crime or public offense, and hence that the motion to quash should have been granted. I am of the contrary opinion.

Chapter 118, Laws of Utah 1935, Section 105-21-8, quoted' in the opinion of the court, provides that an information is valid and sufficient if it charges the offense for which the defendant is being prosecuted (a) “by using the name given the offense * * * by a statute.” The name , given the offense attempted to be charged is “perjury.” Section 2 of Chapter 134, Laws of Utah 1937, states that “a person is guilty of perjury who” commits certain specified acts. All of the acts which may, under the circumstances therein set out, constitute perjury are in such section enumerated. Na act not therein specified is perjury. Section 9 of said Chapter 134 provides a penalty for every act enumerated in Section 2. As pointed out in the court’s opinion quoting Section 103-1-11, R. S. U. 1933:

“A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed upon conviction,” a specified punishment. (Italics added.)

The information before us charged the commission of an act described in Section 2, for which a specified penalty is provided in Section 9. Hence it charges a crime. True, the crime defined in Section 2 is divided into degrees and there is a different punishment provided for each degree; but the acts condemned and for the commission of which a penalty is provided are contained in section 2 and such acts are therein given the name “perjury.”

Furthermore, the definition of the offense of perjury is given in Section 2 by enumerating the acts which constitute it. Under Section 105-21-8, Chapter 118, Laws of Utah 1935, quoted in the court’s opinion, an information is sufficient if the crime is charged

"by stating so much of the definition of the offense * * * in terms * * * of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.”

The information under examination charged that the defendant at a stated time and place “committed perjury by testifying as follows.” What he allegedly said is then set out. Disregarding the provision, authorizing the charging of an offense by using the name given it by statute, such information complies with the alternative method. It states so much of the statutory definition as “is sufficient to give the court and the defendant notice of what offense is intended to be charged.”

Again, the crime of perjury is here charged, as pointed out in the opinion, by following verbatim the form specified by Section 105-21-47, Laws of Utah 1935, likewise quoted in the opinion. The majority court, however, holds that the form prescribed by such section has presently no application, for the reason that when it was enacted there was, on our statute books, a crime called perjury; now there is no such offense. The obvious answer is that as pointed out above, there is now, as there was when the statute providing the form was enacted, a crime called perjury. When the legislature redefined it and divided it into degrees, no modification was then or since made in the form which the statute says is sufficient to charge it. We cannot infer that, had it been called to the attention of the legislature, they would have modified the form so as to require specification of the degree. On the contrary, finding a crime of perjury in the statutes and a form prescribed as sufficient to charge it, the legislative intent in the premises is without doubt. The form, absent constitutional condemnation, may be used to validly charge the offense.

The crime of perjury is divided into degrees. Chapter 118,. Laws of Utah 1935, Section 105-21-38, provides:

“In an information or indictment for an offense which is divided' into degrees it is sufficient to charge that the defendant committed the offense without specifying the degree.”

No doubt can possibly be entertained as to the legislative’ intent evidenced by such section. It matters not that the-lesser of the degrees of a particular crime be not included in the greater, it is not necessary by virtue of this provision to specify the degree. Unless some constitutional right of defendant be infringed by a literal construction of such provision, I see no escape from giving it such construction, since the legislature made no exception.

The difficulties suggested in the court’s opinion are resolved by the statutes. “Suppose,” asks the court, “defendant when arraigned upon the information had entered a plea of guilty. What penalty would the court have imposed ?” The court in such case would proceed as directed by Section 105-25-9, Chapter 122, Laws of Utah 1935, which provides :

“Where an information or indictment charges an offense which is-divided into degrees without specifying the degree, if the defendant pleads guilty generally the court shall, before accepting the plea, examine witnesses to determine the degree of the offense of which, the defendant is guilty.”

Section 105-25-10, same chapter, provides:

“Where the defendant pleads guilty to an information or indictment if the court accepts the plea and has discretion as to the pun ishment for the offense, it may hear witnesses to determine what punishment shall be imposed.”

Under such sections there would be no doubt in the record as to what degree of the offense a plea was entered. The court, before accepting the plea, shall, under evidence adduced, determine the degree. The court may likewise, whether the degree be specified or not, hear witnesses to determine what sentence it shall pronounce. As to difficulties suggested relative to pronouncing sentence after verdict, that situation, should it ever arise, is provided for by Section 105-21-45 of the same Chapter. The section reads:

“The defendant and the prosecuting attorney are entitled upon motion made by either after verdict and before sentence is pronounced or the defendant is discharged to have the information or indictment amended so as to state the particulars of the offense, as proved, in such a manner that the information or indictment shall without evidence aliunde be such evidence of the offense charged and its particulars as to bar a subsequent prosecution for the same offense constituted by the same particulars.” (Italics added.)

All that is said hereinabove aside, I am of the opinion that the court errs in holding that the motion to quash should have been granted. This case is here after trial and verdict. A bill of particulars which gave details indicating degree was filed by the district attorney before trial. We are advised, then, that the information could háve been amended before trial, according to the prevailing opinion, by merely therein specifying the degree of perjury charged. In such case the motion to quash should have been overruled. Chapter 118, Laws of Utah 1935, Section 105-23-3, which sets out the various grounds on which a motion to quash an information or indictment shall be available, concludes:

“If a motion to quash is based on an alleged defect in the information or indictment which can be cured by amendment the court shall order the amendment to be made and shall overrule the motion.”

If the court was in error in holding that the information stated a public offense, which I think it was not, it erred in not ordering an amendment to specify degree; it did not err in overruling the motion. Hence it would seem that the verdict and judgment being set aside the case should be remanded, pursuant to the reasons given for reversal, with instructions to the trial court to order the information amended to conform to the court’s opinion and proceed under the information.

True, the record before us reveals that the complaint before the magistrate charged the offense as it was charged in the information. One of the grounds of defendant’s motion to quash was that the trial court was without jurisdiction of the defendant or the offense charged for the reason that there was no complaint before the committing magistrate charging the defendant with any offense. It may be that the motion to quash should have been, under the court’s opinion, on that ground sustained. However, the correct procedure, as I read the statute, would be for the court to order the amendment and since the objection to the complaint as amended would be that defendant had neither had nor waived a preliminary hearing, to order, pursuant to Section 105-23-8, Chapter 118, Laws of Utah 1985, that a preliminary hearing be had.

This is so because the lack of jurisdiction alleged in the motion could be grounded only on such lack of hearing before the magistrate. The district court undoubtedly, has jurisdiction of the offense evidenced by an information amended as suggested. After a preliminary hearing thereon, and an order holding defendant for trial in the district court, it would have jurisdiction of the defendant.

For the reasons stated I am of the opinion that the judgment below should be affirmed.