State v. Kuntz

MR. JUSTICE DAVIS:

The defendant Kuntz (appellant here) was charged in the district court for Lake County with the crime of incest alleged to have been committed with his daughter on or about January 5, 1953. Upon his plea of not guilty he was tried to a jury and found guilty. On November 26, 1954, the judgment of the court was passed that he serve a term of three years at hard labor in the state prison. From that judgment and from an order made December 28, 1954, denying his motion for a new trial he has appealed to this court.

The appeal taken May 26, 1955, from the denial of a new trial comes too late. R.C.M. 1947, section 94-8105. Compare Powell v. May, 29 Mont. 71, 73, 74 Pac. 80; Jackway v. Hymer, 42 Mont. 168, 111 Pac. 720; Nelson v. Donovan, 14 Mont. 78, 35 Pac. 227; In re Malick’s Estate, 124 Mont. 585, 589, 228 Pac. (2d) 963.

The appeal from the judgment, which was timely, brings before us the judgment roll where is found what is said to be a bill of exceptions containing the evidence and the other proceedings had at the trial. This bill, however, was neither presented to the trial judge for settlement nor delivered to the clerk of the district court for him within the time as extended through March 8, 1955, which R.C.M. 1947, section 94-7507, allows. It follows that the trial judge lost jurisdiction after that date to settle any bill of exceptions for the defendant at all. State v. Vallie, 82 Mont. 456, 458-460, 268 Pac. 493; O’Donnell v. City of Butte, 72 Mont. 449, 235 Pac. 707; Kemp v. Murphy, 125 Mont. 234, 236-238, 233 Pac. (2d) 824; Hutchinson v. Burton, 126 Mont. 279, 285, 247 Pac. (2d) 987. In other words compliance with section 94-7507 is mandatory, and has been so ruled by this court for at least fifty years. State v. Kremer, 34 Mont. 6, 9, 10, 85 Pac. 736.

Specifically, the order made by Judge Comer, which was filed June 7, 1955, giving the defendant sixty days additional time for his bill of exceptions was without effect; for it was made after Judge Comer had lost jurisdiction on March 8, 1955, to grant any such extension in the matter. Vicain v. City of Missoula, 107 Mont. 105, 107, 108, 81 Pac. (2d) 350; Wolz v. Wolz, 110 Mont. 458, 460, 102 Pac. (2d) 22; O’Donnell v. City of Butte, supra, 72 Mont. at page 453, 235 Pac. 707. And the jurisdiction thus could not be reinvested in the trial judge even by stipulation of counsel made August 2, 1955. State v. Vallie, supra, 82 Mont. at page 459, 268 Pac. 493.

At this point we note that the certificate of the judge below to the bill of exceptions before us recites only that it is “full, true, complete and correct,” and is accordingly “settled, allowed and approved as a true and correct Bill of Exceptions in said cause.” It is particularly significant that there is here no certification that the bill was presented within the time allowed by law as duly extended, a customary recital found in such certificates when a bill is timely presented. In this connection this certificate is precise, explicit, and not to be misunderstood; for its express statement is that not only are its contents true but they are full, not only are they correct but they are complete.

In these circumstances there is no room for the presumption indulged perhaps when the record does not affirmatively show a failure of jurisdiction, viz., that the presentation and settlement of the bill of exceptions were timely and in accordance with the statutory requirements. Compare Friel v. Kimberly-Montana Gold Min. Co., 34 Mont. 54, 59, 85 Pac. 734; Erdmann v. Erdmann, 127 Mont. 252, 254, 256, 261 Pac. (2d) 367.

Moreover, where as at bar the patent defect in the record goes to our jurisdiction it is our plain duty of our own motion to notice our want of authority to proceed. O’Donnell v. City of Butte, supra. It follows accordingly that we have before us no specification of error, which is predicated upon this bill of exceptions. The judgment roll alone is here for review.

There remains, in other words, for our consideration on this appeal only the error assigned on the face of that judgment roll, viz., that the trial court erred in granting the State leave to amend the information at the opening of the trial and over the defendant’s objection thereto. The foundation for this assignment is found in the following facts.

The prosecution here is based upon R.C.M. 1947, section 94-705, which defines the crime of incest, so far as is here material, in these words: “Persons within the degrees of consanguinity within which marriages are declared by law to be incestuous and void * * * who commit fornication or adultery with each other, are punishable by imprisonment in the state prison not exceeding ten years.”

From the judgment roll in the record, which contains the information and inter alia a copy of the minutes of the trial, R.C.M. 1947, section 94-7820, it appears this information originally charged that the defendant “did then and there wilfully, wrongfully, unlawfully and feloniously commit fornication with a person related * * *, to-wit, his natural daughter Eva Kuntz.”

From the minutes of the trial we learn, however, that when the cause was called on November 22, 1954, the county attorney moved to amend by striking the word “fornication” and substituting the word “adultery.” There was objection by the defendant’s counsel. The motion was nevertheless granted; and the clerk was directed to amend the information accordingly, which was done. The defendant by his counsel excepted.

In this ruling we see no error.

At that time the record shows, the defendant had previously been arraigned and pleaded not guilty to the charge as first drawn. The right of the state to amend, as it did, was therefore controlled by R.C.M. 1947, section 94-6207, to the effect that an information “may be amended at any time thereafter [after plea] and on trial as to all matters of form, at the discretion of the court, where the same can be done without prejudice to the rights of the defendant. * * ®” This statute means that in the circumstances of this case this information could not be amended in any matter of substance after the defendant’s plea and as here at the opening of the trial. Specifically, if the amendment actually made at that time by leave of court went to the substance of the charge upon which Kuntz was called to trial, there was error. State v. Fisher, 79 Mont. 46, 254 Pac. 872.

But we are of the opinion, the amendment permitted did not make any substantial change in the charge which was first brought against Kuntz. Nor did it aid that charge in any material particular; for we think, it touched a matter of form only.

Translated this information before amendment said that the defendant, an unmarried man, indulged in sexual intercourse with his natural daughter, Eva Kuntz. Compare Territory v. Whitcomb, 1 Mont. 359, 25 Am. Rep. 740. By the deletion of the word “fornication” and the substitution of the word “adultery” the charge was then that the defendant, a married man, indulged in sexual intercourse with his natural daughter, Eva Kuntz. The essence of the accusation both before and after amendment was, however, precisely the same, i. e., sexual intercourse alleged to have been had by Kuntz with his natural daughter, which itself makes out the crime of incest. All else is matter of description only. 42 C.J.S., Incest, section 12(b), page 511; 31 C.J., Incest, section 23, page 380; People v. Cease, 80 Mich. 576, 45 N.W. 585, citing Territory v. Whitcomb, supra, and applying that authority to the crime of incest; Wood v. State, 72 Okl. Cr. 347, 116 Pac. (2d) 734; Brown v. State, 42 Fla. 184, 27 So. 869; People v. Stratton, 141 Cal. 604, 75 Pac. (2d) 166. Whether the defendant father was married or unmarried at the time is not a material ingredient of the offense. In either event the defendant is guilty if the intercourse charged is proved. People v. Cease, supra; Wood v. State, supra, 72 Okl. Cr. 355, 116 Pac. (2d) 734; People v. Stratton, supra, 141 Cal. at page 606, 75 Pac. 166.

This information likewise both before and after amendment followed in substance the language of our statute. The original as well as the amended statement of the offense intelligibly charges sexual intercourse by a father with his daughter. This is the gist of the crime denounced by the statute, which was not altered in the least by the amendment, in effect, that Kuntz was a married man, not single or unmarried, as at first the information had described him. Accordingly his case is ruled by State v. Crighton, 97 Mont. 387, 34 Pac. (2d) 511, rather than by State v. Fisher, supra.

The judgment of the district court is affirmed.

MR. CHIEF JUSTICE ADAIR, and MR. JUSTICE BOTTOMLY, concur.