State v. Wilson

The foregoing opinion was prepared by the late Chief Justice Dunn a short time prior to his death. It was not then finally agreed on because of the desire of the court to have certain points further briefed. For that reason the cause was resubmitted and again presented on additional briefs. The foregoing, together with the following, constitutes the opinion in the case.

During the trial, appellant called a former prosecuting attorney and the foreman of a former grand jury and offered to prove that the charge contained in the information on which he was being tried had been, theretofore and prior to the filing of the information, considered by a grand jury and that said charge had been by the grand jury ignored. This offer was denied, and the ruling of the court is assigned as error.

A plea of not guilty puts in issue every material allegation of the information. (C. S., sec. 8882.) The information charges that at Declo, in the county of Cassia and state of Idaho, appellant, an officer of the Declo State Bank, made a false report of the condition of the bank. Whether the charge against appellant had theretofore been considered and ignored by a grand jury was not made an issue by the information, and the trial court properly sustained the objection to the admission of evidence to prove it. Counsel vigorously contends, however, that his offer raised a jurisdictional question of the highest order. The point had theretofore been raised on a motion to quash the information and had been passed on by the court; and the propriety of presenting the matter on motion to quash is not questioned. (See Royce v. Territory, 5 Okl. 61,47 P. 1083; State v. Grady, 12 Mo. App. 361; Sparrenberger v. State,53 Ala. 481, 25 Am. Rep. 643; Commonwealth v. Green, 126 Pa. St. 531, 12 Am. St. 894, 17 A. 878.) The question sought to be presented by the introduction of the proffered evidence was for the determination of the court and such proffered evidence did not tend to disprove the charge contained in the information. It is not the law that one on trial for a criminal offense has a right to have a trial jury determine whether the charge contained in the information had theretofore been considered and ignored by a grand jury. Whether the charge, on which appellant was on trial, had theretofore been presented to and ignored by a grand jury was not a question for the jury's determination, and the trial court properly sustained the objection to the proffered evidence.

With respect to that portion of the foregoing opinion of the late Chief Justice that the trial court did not err in instructing that it was not necessary to prove a specific intent or attempt to deceive, it may be further stated that we are not considering the information from the standpoint of either a demurrer or motion. While the information contains elements unnecessary to charge making a false report of the condition of the bank, leaving out the improper elements, the information charges a violation of the third division of C. S., sec. 5276. Under State v. Waterman, supra, it is not necessary to prove intent or attempt to deceive, and the instruction was proper.

Judgment affirmed.

Givens and Taylor, JJ., concur.