State v. Burwell

Appellant's affidavit that he did not plead, and was not called upon to do so or had no opportunity to plead, was filed after trial upon the merits and his conviction, and is sole basis for his assignment of error in this particular.

"Defendant further says that he was never called on to enter any plea, to either the original or the amended information; and that he never at any time refused to enter a plea, * * *."

The record of his own actions completely contradicts this statement. On December 3, 1945, the court minute recites the defendant waived the reading of the information and filed a motion to set aside and a demurrer to, the information. These constituted pleading to the information. Title 19, Chapter 16, I.C.A.

The motion was denied and the demurrer sustained December 28, with leave to the prosecution to file an amended information on January 10, which was filed January 14, 1946. February 9, defendant filed a plea to the jurisdiction and a plea in bar contesting the amended information, which were formally denied May 15, 1946. Thereafter the case was set for trial on May 29 and the court minute of June 3 recites — "the information was read to the jury and defendant's plea stated," and he interposed no objection or exceptions thereto or question thereof and proceeded to trial upon the merits under the issue raised as by plea of not guilty. In re Bundy, 144 Kan. 64,58 P.2d 80, significant as to waiver of time.

The holding that the amended information was not filed within the time set by the trial judge and, therefore, the court lost jurisdiction of the cause, ignores or nullifies Sec. 19-1320, I.C.A.¹

The amended information alleged a specific date for the offense charged, and more detail as to the method of its commission. It did not change the nature of the charge and since the appellant had been arraigned upon the original information and had waived the reading thereof and interposed such plea as he desired, "it was not necessary, after the amendment, to arraign or permit him to plead thereto, as he insists." State v. Barr, 63 Idaho 59, at page 64, 117 P.2d 282, at page 284. It may be contended the Barr case had to do with the amendment of a criminal complaint in the district court on appeal from the justice's court. A criminal charge, however, on appeal to the district court stands as though — "commenced in that court in the first instance." State v. McNichols, 62 Idaho 616, at page 623, 115 P.2d 104, 107.

"That count was not changed by the amendment in question. The defendant was therefore not prejudiced by the amendment. At any stage of the proceedings in a criminal case the court may authorize an amendment of an information to be filed to supply any defect or insufficiency thereof, which does not result in charging an offense which is not disclosed by the evidence adduced at the preliminary examination, and when the substantial rights of the defendant are not thereby prejudiced." People v. Wright, 26 Cal. App. 2d 197, 79 P.2d 102, at page 109.

"Appellant contends the court erred in overruling defendant's motion to strike the first amended information from the record. He argues that after the state had failed to amend within the time permitted to amend there was nothing left to amend. The defective information had not been stricken from the files nor had the proceedings been dismissed. An amendment of substance as well as to form has been held permissible where it did not affect the substantial rights of the defendant. State v. Morris, 131 Kan. 282, 291 P. 742. The subsequent action of the court showed consent to have the information amended after expiration of the time originally granted. It is not shown that the allowance of the amendment in any way prejudiced the defendant in making his defense. The point is not well taken." State v. Barger, 148 Kan. 590, 83 P.2d 648, at page 651. Willis v. State, 60 Okla. Crim. 243, 63 P.2d 769.

State v. Groseclose, 67 Idaho 71, 171 P.2d 863, 867, the only authority relied upon to support the proposition that the amended information not having been filed within the time specified, the court lost jurisdiction, ultimately held exactly to the contrary. In the first place, the order therein entered was that:

"* * * the plaintiff is hereby given ten days from and after the filing of this order in which to prepare said amended complaint and, unless an amended complaint is so filed, saidaction shall be dismissed." (Emphasis mine.)

The order herein was not so limited. On appeal, this court remanded the case with instructions to permit an amendment — clearly recognizing the court had not lost jurisdiction, even though the amended information had not been filed within the time specified.

It is significant to note that Section 19-1320, I.C.A., taken verbatim from the first paragraph of Section 1008, Penal Code of California, contains only the first paragraph of the California statute; the second paragraph of the California statute, which we did not adopt, provides that:

"If a demurrer is sustained and an amendment is not allowed, or if allowed, is not made, within such reasonable time as thecourt may fix, the court shall give a judgment of dismissal, which shall be a bar to another prosecution for the same offense, * * *. (Emphasis mine.)

Under the well recognized rules of statutory construction, by not adopting this provision of the California Code, our legislature has clearly indicated that failure to file within the specified time does not authorize a judgment of dismissal and is not a bar.

With regard to appellant's contention that he never plead after the overruling of his pleas to the amended information, the statutes in effect entered the plea of not guilty for him and such plea was so stated to the jury. People v. Bowman,81 Cal. 566, 22 P. 917.

"If the demurrer is disallowed, the court must permit the defendant at his election to plead, which he must do forthwith, or at such time as the court may direct. If he does not plead, the plea of not guilty must be entered for him." Section 19-1610, I.C.A.

"If the defendant refuses to answer the indictment by demurrer or plea, a plea of not guilty must be entered." Section 19-1620, I.C.A.

The appellant did not at any time seek to interpose further or other pleas or objections to the amended information than he did interpose. Under the statutes, therefore, whether he plead or did not, or refused to plead, the plea of not guilty automatically resulted, and no error occurred.

"Prior to the introduction of any testimony, the court directed the clerk to read the complaint, which was accordingly done, and the clerk stated at the close of such reading, 'to which complaint defendant pleads not guilty.' Appellant moved that this statement of the clerk be stricken for the reason that appellant had entered no plea in that court and had never been arraigned, to which the court replied, 'When there has been no plea entered, the law directs that a plea of not guilty be entered, so the motion will be overruled,' and thereafter the trial of the cause proceeded in the usual manner. Upon this state of the record we are of the opinion that the first two assignments are without merit. It has been frequently held that in a trial upon a misdemeanor charge, a failure to give a defendant an opportunity to plead is not reversible error where the defendant proceeds to trial without raising the objection, and under such circumstances he waives the privilege of pleading. In the instant case, when appellant raised the objection, the court in effect directed that a plea of not guilty be entered for him. See authorities cited to note in State v. Walton, 50 Or. 142, 91 P. 490, as found in 13 L.R.A., (N.S.), 811." State v. Ashby, 40 Idaho 1, at page 3,230 P. 1013, 1014.

The majority rely upon State v. Chambers, 9 Idaho 673,75 P. 274, and State v. Crea, 10 Idaho 88, 76 P. 1013, to support the proposition that the defendant's alleged failure to plead demands a reversal.

In State v. Chambers, supra [9 Idaho 673, 75 P. 275], the error complained of was founded upon the following statement contained in the bill of exceptions:

"`Before the taking of testimony neither the clerk nor any other officer of the court read the information to the jury or informed it of the plea of defendant thereto, and the same was not done at any time.'"

The court, following among others, People v. Monaghan,102 Cal. 229, 36 P. 511, also relied on by the majority, held this was reversible error. In State v. Crea, supra [10 Idaho 88,76 P. 1015], the court said:

"The omission to read the information and state the plea of the defendant to the jury was gross carelessness on the part of the prosecuting officer, as a new trial must be granted. * * *."

Considering these two cases as applied to the situation we have here, the court in State v. Lancaster, 10 Idaho 410, 78 P. 1081, 1082, distinguished and held them inapplicable thus:

"`That, as soon as the jury were sworn and impaneled in the said cause, the clerk of said court, under the direction of the court, read to the jury the information in the said cause, and immediately thereafter stated to the jury that the defendant pleaded not guilty.' Also, in the first instruction given to the jury by the court, the court there states that the 'defendant pleads not guilty' to the information. For that reason the case of State v. Chambers, [9] (Idaho) [673], 75 P. 274, is not in point, as in that case there was no showing whatever that the plea was stated to the jury, and it was admitted that the plea was not stated to the jury."

Herein the minutes recite that: "The information was read to the jury and the defendant's plea stated." Likewise, Instruction No. 1 stated: "* * * the defendant has heretofore entered his plea of not guilty." Therefore, under the construction of State v. Chambers, supra, contained in State v. Lancaster, supra, there was no error herein.

Again, in State v. Lottridge, 29 Idaho 53, 155 P. 487, 488, and overruling appellant's contention that the record being silent as to whether a plea had been entered, the presumption would be that no plea had been entered, the court said:

"In this case the record is silent as to whether or not the information was read and the plea stated, so the Arizona case [Territory v. Hargrave, 1 Ariz. 95, 25 P. 475], above referred to, is not directly in point, while in the Crea case, above cited, the record affirmatively showed that the information was not read, and the plea of the defendant was not stated to the jury, so that case is not in point." (Emphasis mine.)

Continuing:

"`All the presumptions are in favor of the regularity of the proceedings of courts of record. In the absence of any showing to establish the fact whether the court did or did not comply with these requirements of law, the presumption of law will at once arise that the court complied therewith and discharged every duty the statute imposed upon it in the trial of the case.'"

It is contended, however, that herein there is affirmative showing by the affidavit of appellant that he did not plead, but he does not state that the information was not read or his plea stated, or that the court had not instructed the jury he had plead not guilty. Continuing in the Lottridge case, the court stated:

"While section 7855, supra, (now Sec. 19-2001, I.C.A.), requires the indictment or information in a felony case to be read and the plea to be stated to the jury, there is no statute expressly requiring a record to be kept of it and, in the absence of a specific statutory requirement directing that such fact be recorded, the presumption is, when the record is silent upon the point, that the proceedings were regular, and that the law was complied with."

However, herein the record is not silent, but affirmatively shows the information was read, the plea stated and reiterated in the instructions; thus, as declared in State v. Lancaster, supra, our latest previous pronouncement on this point, obviating any error.

The burden of showing prejudicial error is on the party complaining of error. State v. Mundell, 66 Idaho 297,158 P.2d 818, at page 825. Herein, nowhere in the record does appellant show there was any prejudice resulting by reason of the filing of the amended complaint four days late, or the trial of the case on the merits, on appellant's recited plea, which was conducted in all particulars as though every formality connected with a plea of not guilty was shown in the record.

The judgment should be affirmed.

¹ "An indictment or information may be amended by the prosecuting attorney without leave of the court, at any time before the defendant pleads, and at any time thereafter, in the discretion of the court, where it can be done without prejudice to the substantial rights of the defendant. An information or indictment can not be amended so as to charge an offense other than that for which the defendant has been held to answer." Sec. 19-1320, I.C.A.