Rose v. District Court of Millard County

248 P. 486, 67 Utah 526, 1926 Utah LEXIS 71

• Court: Utah Supreme Court
• Decided: July 13, 1926
• Docket: No. 4411.
• Status: Published

Opinions

GIDEON, C. J.

Certiorari to review proceedings of the district court of Millard county, Utah, Hon. T. H. Burton, judge, in a criminal prosecution wherein plaintiff, Virgil Rose, was defendant and the state of Utah was plaintiff.

It is alleged in the petition that the court was without jurisdiction to hear the evidence and pronounce judgment in that action on the following grounds, namely: That no verified complaint was filed charging plaintiff, defendant there, with a public offense; that a jury was impaneled and defendant tried without pleading to the accusation contained in the purported complaint; that the court lost jurisdiction by reason of the fact that judgment was not pronounced against defendant within ten days after verdict of jury.

In response to the writ issued the defendant judge has filed with the clerk of this court all the original files in the criminal action, a certified copy of all minute entries made by the district court with reference to said prosecution and judgment, and, lastly, a full transcript of all the evidence taken and proceedings had at the trial in the district court.

Petitioner in his brief says that:

He “bases his contention upon the propositions: (a) That the said court and judge were without jurisdiction to try the petitioner upon charges alleged in the purported complaint because there was no signed or verified complaint before the court, (b) That said court and judge were without jurisdiction to try this petitioner in said action because petitioner was not permitted to plead to the charges preferred against him. (e) That the said court and judge erred in said action by refusing to dismiss said action after the state had rested because of the insufficiency of the evidence to justify a verdict of guilty, (d) That said court and judge were without jurisdiction to render judgment at any time after ten days had elapsed after verdict.”

We shall consider these objections in the order named.

It appears from the record that Rose was convicted of a misdemeanor in a justice court on June 8, 1925; that on June 9, 1925, an appeal was taken to the district court of Millard county. From the minute entries which are attached to the return to the writ issued by this court it appears that on October 25, 1925, in the district court, Rose entered a plea of not guilty to the crime charged in the complaint. One or two continuances were had. The case finally came on for hearing on February 1,1926. Testimony was taken and the jury, on February 2, 1926, returned a verdict of guilty. On the same day, upon motion of counsel for Rose, the court granted defendant five days’ time within which to file a motion for new trial, and fixed defendant’s bail at the sum of $500. On February 15th the motion for new trial was overruled, and on February 16th the court passed judgment committing defendant to the county jail of Millard county for a term of six months. Thereafter petition was filed in this court seeking review of the district court’s proceedings.

It appears from the record that at the date the case was called for hearing, to wit, February 1, 1926, a jury was impaneled, and the court, upon reading the complaint to the jury, ascertained that the complaint in the files had not been signed by any one. At that time the court remarked: “I find that the complaint in. the files is not signed.” Some discussion was had and an examination of the files made. Counsel for Rose said: “I think we can go on with the jury.” The county attorney then said that he was sure that the original complaint was signed and was of opinion that the justice had erroneously sent to the district court a copy instead of the original. Counsel for Rose replied: “There has been no other complaint than this, but we will go ahead with it.” It was then observed by the county attorney that the justice who tried the case was present in court.

Upon the court’s suggestion the justice was sworn. He testified in effect that the transcript of the docket sent to the district court was prepared by him; that it was his signature to the transcript; that the transcript recited that there was a complaint filed in his office signed by the sheriff of Millard county, Mr. Black. The justice further testified that he personally administered an oath to the sheriff and knew that the original complaint filed in his office was signed by the sheriff and verified by him. He stated that he assumed that he had sent to the district court a copy, and that the original was among the files in his office. He stated that there were two or three copies of the complaint made, and that the original complaint had Sheriff Black’s signature on it. The court then remarked: “I think that showing is sufficient.” Counsel for Rose thereupon said: “Exception.” The case proceeded, and no further reference or objection was made to the fact that the complaint then in the files in the district court was a copy only and not the original.

At the close of the state’s testimony counsel for Rose interposed a motion for a directed verdict. That motion was based upon the ground that the state had not connected defendant with the alleged offense. No reference was made in that motion to the fact that the original verified complaint was not then among the files in the district court. The record also shows that thereafter the original complaint signed by the sheriff and verified by him was filed in the district court. It appears, therefore, without dispute, that a verified complaint was filed with the justice and a warrant issued upon that complaint thus verified, and. that the justice by mistake sent to the district court a copy of the original complaint. It likewise appears that Rose went to trial without making any objection to the fact that the original complaint was not then among the files in the district court. The language used by counsel can mean nothing else than an agreement to go forward with the trial with full knowledge that the original complaint was not then a part of the files in the district court. Counsel said: “There has been no other complaint than this, but we will go ahead with it.”

Counsel for petitioner relies upon the provisions of the statute and the language of this court in State v. Pay, 45 Utah, 411, 146 P. 300, Ann. Cas. 1917E, 173, as follows, quoting from page 420 of 45 Utah (146 P. 304) :

“We thus start out with the proposition that under our procedure a criminal prosecution must be initiated by filing a complaint in writing which must be verified by the complainant.”

In this case it affirmatively appears that the prosecution was initiated by a verified complaint. The language in 45 Utah is not therefore applicable to the situation here. If there had been no complaint filed in the justice court, then, admittedly, under the statute, as construed in State v. Pay, supra, the contention of plaintiff in this proceeding ought to and would prevail. Conceding, without deciding, that the defendant at the time the action was called for trial could have successfully objected to any further proceedings by the court, he, by going to trial without objection, cannot now successfully interpose that as a defense against executing the judgment. It would indeed be trifling with the court to now permit the defendant to interpose the fact that a copy of the complaint only was in the district court at the time of the trial and at the time of the rendition of the verdict by the jury. If the complaint had been lost a copy could have been substituted. 16 C. J. 297. The testimony is conclusive that there was a complaint verified as required by statute in existence; that that complaint thus verified was the basis of the institution of the criminal proceeding. The court admittedly had jurisdiction of the subject-matter. The justice before whom the prosecution was instituted acquired jurisdiction of the defendant by reason of the arrest under the warrant and by reason of the plea of the defendant to the charge made in the complaint. The appeal taken by the defendant transferred jurisdiction of the subject-matter and of the person of the defendant to the district court. The defendant appeared in the district court and without raising any objection to the sufficiency of the complaint interposed a plea of not guilty.

“Everywhere jurisdiction of the person of the defendant may be acquired by consent of the accused or by waiver of objections. If he fail to make his objection in time, he will be deemed to have waived it. He cannot, for instance, raise such a question for the first time in the appellate court.” 8 R. C. L. p. 96.

This contention or claim must therefore be denied.

The second objection, that the court was without jurisdiction hy reason of the fact that the defendant was not permitted to plead to the charge laid against him, is without merit, because the record affirmatively shows that both in the justice court and in the district court he pleaded to the charge preferred against him.

The third contention, contained in subdivision (c), that the court erred in refusing to dismiss the action after the state had rested, because of insufficiency of evidence to justify a verdict of guilty, cannot be considered in certiorari proceedings. In certiorari proceedings the court will not look into the record to determine or ascertain the lack of evidence to support the trial court’s judgment. Pincock v. Kimball, 64 Utah, 4, 228 P. 221.

The last subdivision of plaintiff’s contention is that the court was without jurisdiction to render judgment at any time after ten days had elapsed after verdict. The verdict was returned February 2, 1926. Judgment was pronounced February 16, 1926. Motion for new trial was interposed and denied February 15, 1926. Reliance is had upon Comp. Laws Utah 1917, § 9041. It is therein provided that after verdict, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment, which must be at least two days and not more than ten days after verdict. It does not appear from the record that defendant, petitioner here, objected to the court pronouncing judgment by reason of more than ten days having elapsed after the rendition of the verdict by the jury, and did not in any way at the time of pronouncing judgment enter an objection that the court was without jurisdiction. On the contrary, it appears from the minute entry of the court that on the date judgment was pronounced the court inquired of the defendant “if he had any legal reason why judgment of the court should not be pronounced against him; he answered that he had none.”

Section 9041 was taken from the California Code of Criminal Procedure. The California courts have uniformly held that failure to object by reason of delay in pronouncing judgment is a waiver of the right to object. In the course of the opinion in People v. Barton, 88 Cal. at page 177, 25 P. 1117, the court says:

“The first point made for a reversal of the judgment is, that the time appointed for pronouncing it was not at least two days after verdict, and is therefore in violation of section 1191 of the Penal Code. The defendant seems to have made no objection at any time to this action of the trial court, and under the decision of the appellate court in People V. Mess, 65 Cal. 174 [3 P. 670], the point made is without merit.”

See, also, Hansford v. Commonwealth, 170 Ky. 700, 186 S. W. 498.

We are of the opinion, and so hold, that the trial court was not without jurisdiction to hear the case against defendant; that it was not without jurisdiction to pronounce judgment on the date judgment was pronounced. It necessarily follows that the prayer of plaintiff for a writ annulling the judgment of the district court must be denied.

It is so ordered.

Costs to be taxed against plaintiff.

THURMAN, FRICK, and CHERRY, JJ., concur.