State v. Rock , 20 Utah 38 ( 1899 )

Minee, J.

On March 19, 1898, the prosecuting attorney of Salt Lake county filed an information against the respondent charging him with having committed the crime of fornication in Salt Lake county, on the 23d day of July, 1895, with one Florence H. Hollingsworth.

The defendant filed his demurrer to the information, on the grounds, first, that it was filed under the laws of Utah enacted subsequent to the commission of the offense; second, that under the laws as they existed when the offense was committed, an indictment and not an information should have been found; third, that the information was not found by a grand jury consisting of fifteen men, as provided by law, when the offense was committed.

The demurrer was sustained, the information was dismissed, and the defendant discharged. Thereupon the state appealed to this court.

The question presented by this appeal is whether Art. 1, Sec. 13 of the Constitution of the State of Utah, providing for the prosecution of criminal cases by information after examination and commitment by a magistrate is ex post facto, and prohibited by Art. 1, Sec. 10, of the Constitution of the United States, prohibiting a state from passing ex post facto laws, as applied to offenses committed prior to January 4, 1896, when the state was admitted into the Union.

Section 5, ch. 7, page 5, Sess. Laws 1892 (Sec. 4212 Rev. Stat. 1898) under which this prosecution was commenced, reads as follows: “That if an unmarried man or woman commits fornication, each of them shall be punished by imprisonment in the county jail, not exceeding six months, or by fine not exceeding one hundred dollars.”

Sec. 4688, Rev. Stat. 1898, provides for prosecution of criminal offenses by information or indictment.

By the provisions of section 4 of the Poland Bill, I C. L. U. 1888, it is made the duty of the grand jury to inquire into the case of any person imprisoned upon a criminal charge and not indicted. By Sec. 4911, C. L. U. 1888, it is made the duty of the grand jury, consisting of 15 qualified citizens, to inquire into all public offenses committed or triable within the judicial district, and present them to the court by indictment.

The case of Thompson v. Utah, 170 U. S. 343, was where a party who committed a felony before the State was admitted into the Union was tried before a jury consisting of eight persons, after the state was admitted, and it was held that the constitution of the State, providing for the trial of criminal cases, not capital, in courts of general jurisdiction by a jury composed of eight persons, is ex post facto in its application to felonies committed before the Territory became a State. The court holding that the accused was entitled to be tried by a jury composed of 13 men, the same as if tried before the admission of the State.

In State v. Hart, decided at the.present term of this court, 19 Utah, 438, this court held that all persons charged with the commission of a felony prior to the adoption of the Constitution, were entitled to be tried in State courts by a jury composed of 12 men, as provided by law at the time of the commission of the offense; that the laws in relation to jury trials in cases of felony, committed prior to statehood have been continued and are still in force, except as they are found to be repugnant to the Constitution, or have been repealed.

In State v. Kingsley, 26 Pac. Rep. 1066 (Montana) where Art. 5, Organic Act of Montana, provided that “no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.” Constitution, Art. 3, Sec. 8 provides that “all criminal actions in the district court * * sha.n be prosecuted by information after examination and commitment.” Held, that one charged with grand larceny, committed before the state constitution took effect, could not be convicted under an information.

Under these decisions the laws of the territory, with reference to grand jurors, and empowering them to act upon, inquire into, and make presentment by indictment of all criminal offenses committed in the district, are still in force in this State as to offenses committed against the laws of the State prior to its admission January 4, 1896.

At the time the crime charged against the respondent was committed, prior to the admission of the State, it was his constitutional right, under the laws of congress, and the territorial laws then in force in the territory, to have his case brought before a grand jury and a presentment by indictment of that body in accordance with the laws then in force.

Upon its admission into the Union the State did not acquire power to provide, in respect to offenses, whether felonies or misdemeanors, committed within its limits while it was a territory, for the filing of informations by the prosecuting attorney, in the absence of a presentment and indictment by a legally constituted grand jury.’

To hold that á state could deprive the accused of his liberty by examination before a magistrate and by the filing of an information by’the prosecuting attorney, without the presentment of an indictment found by a grand jury, for an offense committed while Utah was a territory and under the laws of Congress, would be to recognize in a state power to do that which congress could not do by legislation, and the right to take from the accused a constitutional right which belonged to him when the offense was committed.

The Constitution of the United States prohibits any state from passing ex post facto laws. Art. 1, Sec. 10, U. S. Const.

In Duncan v. Missouri, 152 U. S. 377, ex post facto laws were defined as follows :

“An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed ; or an additional punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offense or its consequences, alters the situation of a party to his disadvantage.”

It cannot be said that changing the mode of procedure whereby an accused is entitled to the judgment of 15 men composing the grand jury, to an examination before a magistrate and the filing of an information by a prosecuting officer, does not in relation to the offense, or it consequences, alter the situation of an accused party’to his disadvantage. By such changed procedure the manner of producing evidence is changed. In the one case the accused cannot be held for trial without the unanimous verdict of 12 grand jurors against him. In the other case the decision of a single magistrate may hold him for trial.

Under the decision of Thompson v. Utah, supra, it must follow that the prosecuting attorney had no authority to file the information against the respondent for the offense committed prior to the admission of the State into the Union. The grand jury is the proper tribunal before whom the accused should be brought.

The demurrer to the information was properly sustained. The judgment of the district court in quashing the information and discharging the defendant, is affirmed.

Bartch, C. J., and Baskin, J., concur.