GIVENS, J.
-Upon appeal to the district court from criminal proceedings against him in the justice court for making and issuing a check without funds in the bank to pay it, under section 17-3908,1. '0. A.,
appellant was convicted upon
trial
de novo
after plea of not guilty and sentenced to the county jail.
No demurrer to the information, objection to any evidence or motion in arrest of judgment was made or interposed by appellant upon the ground the information did not state facts sufficient to constitute a public offense: He contends he may now, however, raise the point. Hnder section 19-1611, I. C. A.,
concededly applicable, this court has held such objection must be made in the manner prescribed, i. e., demurrer or motion in arrest of judgment and comes too late when first broached on appeal.
“ .... In
Territory v. Carland,
6 Mont. 14, 6 Pac. 578, the court, in passing upon this question, on a statute identical with that of Idaho, say: ‘In this case there was a motion in arrest of judgment. It does not, however, appear that this motion was ever acted upon by the court. The appellant did not therefore insist upon his motion, and will be deemed to have waived it. The statute having provided the method of procedure to take advantage of such a defect, that method must be pursued. The objection that the facts stated in the indictment do not constitute a public offense cannot be presented in this court for the first time. ’ And the same court, in a recent case
(State v. Malish,
15 Mont. 506, 39 Pac. 737), reiterate and affirm this doctrine, adding the following language: ‘The ruling in the Carland case in upholding the statute cited does not hold that a judgment will be sustained upon an information which does not state an offense, nor that such judgment will be sustained upon an information where
it appears that the court has no jurisdiction of the offense. The decision simply recognizes that the statute provides, as it has a right to do, in what court these objections should be made, and that they must be first made in the district court, rather than in the supreme court. Appeals are a matter of statutory regulation.’ We are in accord with the Montana court in its construction and application of this statute. Other questions are raised by the record, but, as the decision of this disposes of the appeal, we do not feel called upon to go further in the consideration of the case. The judgment of the district court is affirmed.”
(State v. Hinckley,
4 Ida. 490, 493, 42 Pac. 510.)
This case has been approved and followed in
In re Dawson,
20 Ida. 178, 190, 117 Pac. 696, 35 L. R. A., N. S., 1146, and
State v. Neil,
58 Ida. 359, 365, 74 Pac. (2d) 586.
A marked distinction is to be noted between the civil and criminal procedure as specified by section 19-1611,
supra,
and section 5-611, I. C. A. Furthermore the criminal complaint
was substantially in the language of the statute, which
states the essential elements of the crime, hence sufficient.
(People v. Russell,
156 Cal. 450, 105 Pac. 416; 31 C. J. 703;
State v. Montgomery,
48 Ida. 760, 766, 285 Pac. 467;
State v. George,
44 Ida. 173, 176, 258 Pac. 551;
State v. McMahon,
37 Ida. 737, 219 Pac. 603;
State v. Johnson,
54 Ida. 431, 32 Pac. (2d) 1023;
State v. Huff,
56 Ida. 652, 656, 57 Pac. (2d) 1080.)
Appellant’s assignment of error that Exhibit “C,” a transcript of the proceedings in the justice court was admitted in evidence to his prejudice is groundless because it was not admitted, the trial court sustaining his objection thereto.
Exhibit “F,” a certified copy of the justice court docket in this case was admitted in evidence, but its admission is not assigned as error, the assignment going only to Exhibit ‘
‘
C ”:
“VIII.
“The court erred in admitting in evidence the record of proceedings in the Justice court, State’s Exhibit £C.’, showing that defendant pleaded guilty.”
No authorities are cited on this point and it is not argued in the brief. This alone obviates any consideration thereof
(State v. Richardson,
56 Ida. 150, 50 Pac. (2d) 1012;
State v. Snoderly,
61 Ida. 314, 101 Pac. (2d) 9) but there are other cogent reasons which completely dispose of it.
A plea of guilty to the same offense is an admission of guilt and admissible.
(State v. Call,
100 Me. 403, 61 Atl. 833 (1st case);
State v. Giles,
81 N. H. 328, 125 Atl. 682;
Commonwealth v. Ervine,
8 Dana (Ky.), 30; 16 C. J. 613, sec. 1204.) It is evidently not seriously contended the plea of guilty was inadmissible since no assignment of error raises the admission of this exhibit and.we can only speculate on what error is claimed, but evidently it is considered the method was incorrect and that the oral testimony of some bystander is superior to the written records of a justice court
as to what took place in a criminal case admittedly within the jurisdiction of the justice.
Section 19-4004, I. C, A., provides (in criminal cases):
“A
docket must be kept by the justice of the peace, or by the clerk of the probate court, in which must be entered each action and the proceedings of the court therein.”
And section 19-4005,1. C. A.:
‘ ‘ The defendant may make the same plea as upon an indictment. His plea must be oral, and entered in the minutes. If the defendant plead guilty, the court may, before entering such plea or pronouncing judgment, examine witnesses to ascertain the gravity of the offense committed; and if it appears to the court that a higher offense has been committed than the offense charged in the complaint, the court may order the defendant to be committed or admitted to bail, to answer any indictment which may be found against him by the grand jury.”
Exhibit “F” shows this record
and that the statute was explicitly followed. Justice Hinckley died before the trial in the district court. (Sec. 57-1001, I. C. A.)
Section 16-301, I. C. A., is as follows:
“Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.”
Section 16-302,1. C. A.:
“Every public officer having the custody of a public writing, which a citizen has a right to inspect, is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor, and such copy
is admissible as evidence in like cases
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GIVENS, J.
-Upon appeal to the district court from criminal proceedings against him in the justice court for making and issuing a check without funds in the bank to pay it, under section 17-3908,1. '0. A.,
appellant was convicted upon
trial
de novo
after plea of not guilty and sentenced to the county jail.
No demurrer to the information, objection to any evidence or motion in arrest of judgment was made or interposed by appellant upon the ground the information did not state facts sufficient to constitute a public offense: He contends he may now, however, raise the point. Hnder section 19-1611, I. C. A.,
concededly applicable, this court has held such objection must be made in the manner prescribed, i. e., demurrer or motion in arrest of judgment and comes too late when first broached on appeal.
“ .... In
Territory v. Carland,
6 Mont. 14, 6 Pac. 578, the court, in passing upon this question, on a statute identical with that of Idaho, say: ‘In this case there was a motion in arrest of judgment. It does not, however, appear that this motion was ever acted upon by the court. The appellant did not therefore insist upon his motion, and will be deemed to have waived it. The statute having provided the method of procedure to take advantage of such a defect, that method must be pursued. The objection that the facts stated in the indictment do not constitute a public offense cannot be presented in this court for the first time. ’ And the same court, in a recent case
(State v. Malish,
15 Mont. 506, 39 Pac. 737), reiterate and affirm this doctrine, adding the following language: ‘The ruling in the Carland case in upholding the statute cited does not hold that a judgment will be sustained upon an information which does not state an offense, nor that such judgment will be sustained upon an information where
it appears that the court has no jurisdiction of the offense. The decision simply recognizes that the statute provides, as it has a right to do, in what court these objections should be made, and that they must be first made in the district court, rather than in the supreme court. Appeals are a matter of statutory regulation.’ We are in accord with the Montana court in its construction and application of this statute. Other questions are raised by the record, but, as the decision of this disposes of the appeal, we do not feel called upon to go further in the consideration of the case. The judgment of the district court is affirmed.”
(State v. Hinckley,
4 Ida. 490, 493, 42 Pac. 510.)
This case has been approved and followed in
In re Dawson,
20 Ida. 178, 190, 117 Pac. 696, 35 L. R. A., N. S., 1146, and
State v. Neil,
58 Ida. 359, 365, 74 Pac. (2d) 586.
A marked distinction is to be noted between the civil and criminal procedure as specified by section 19-1611,
supra,
and section 5-611, I. C. A. Furthermore the criminal complaint
was substantially in the language of the statute, which
states the essential elements of the crime, hence sufficient.
(People v. Russell,
156 Cal. 450, 105 Pac. 416; 31 C. J. 703;
State v. Montgomery,
48 Ida. 760, 766, 285 Pac. 467;
State v. George,
44 Ida. 173, 176, 258 Pac. 551;
State v. McMahon,
37 Ida. 737, 219 Pac. 603;
State v. Johnson,
54 Ida. 431, 32 Pac. (2d) 1023;
State v. Huff,
56 Ida. 652, 656, 57 Pac. (2d) 1080.)
Appellant’s assignment of error that Exhibit “C,” a transcript of the proceedings in the justice court was admitted in evidence to his prejudice is groundless because it was not admitted, the trial court sustaining his objection thereto.
Exhibit “F,” a certified copy of the justice court docket in this case was admitted in evidence, but its admission is not assigned as error, the assignment going only to Exhibit ‘
‘
C ”:
“VIII.
“The court erred in admitting in evidence the record of proceedings in the Justice court, State’s Exhibit £C.’, showing that defendant pleaded guilty.”
No authorities are cited on this point and it is not argued in the brief. This alone obviates any consideration thereof
(State v. Richardson,
56 Ida. 150, 50 Pac. (2d) 1012;
State v. Snoderly,
61 Ida. 314, 101 Pac. (2d) 9) but there are other cogent reasons which completely dispose of it.
A plea of guilty to the same offense is an admission of guilt and admissible.
(State v. Call,
100 Me. 403, 61 Atl. 833 (1st case);
State v. Giles,
81 N. H. 328, 125 Atl. 682;
Commonwealth v. Ervine,
8 Dana (Ky.), 30; 16 C. J. 613, sec. 1204.) It is evidently not seriously contended the plea of guilty was inadmissible since no assignment of error raises the admission of this exhibit and.we can only speculate on what error is claimed, but evidently it is considered the method was incorrect and that the oral testimony of some bystander is superior to the written records of a justice court
as to what took place in a criminal case admittedly within the jurisdiction of the justice.
Section 19-4004, I. C, A., provides (in criminal cases):
“A
docket must be kept by the justice of the peace, or by the clerk of the probate court, in which must be entered each action and the proceedings of the court therein.”
And section 19-4005,1. C. A.:
‘ ‘ The defendant may make the same plea as upon an indictment. His plea must be oral, and entered in the minutes. If the defendant plead guilty, the court may, before entering such plea or pronouncing judgment, examine witnesses to ascertain the gravity of the offense committed; and if it appears to the court that a higher offense has been committed than the offense charged in the complaint, the court may order the defendant to be committed or admitted to bail, to answer any indictment which may be found against him by the grand jury.”
Exhibit “F” shows this record
and that the statute was explicitly followed. Justice Hinckley died before the trial in the district court. (Sec. 57-1001, I. C. A.)
Section 16-301, I. C. A., is as follows:
“Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.”
Section 16-302,1. C. A.:
“Every public officer having the custody of a public writing, which a citizen has a right to inspect, is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor, and such copy
is admissible as evidence in like cases
and with like effect as the original writing.....” (Emphasis ours.)
and section 16-310:
“A judicial record of this state, or of the United States, may be proved by the production of the original, or by a copy thereof, certified by the clerk or other person having the legal custody thereof. That of another state or territory may be proved by the attestation of the clerk and the seal of the court annexed, if there be a clerk and seal, together with a certificate of the chief judge or presiding magistrate, that the attestation is in due form.”,
justified the presentation and admission of the certified copy of the minutes of the justice court,
supra.
Section 16-309, I. C. A., classifies as a public writing this judicial record.
Section 16-320, I. C. A.:
“An entry made by an officer, or board of officers, or under the direction and in the presence of either, in the course of official duty, is
prima facie
evidence of the facts stated in such entry.”
certainly makes this record admissible, as
prima facie,
not secondary evidence. This court early held such a record admissible.
(Keenan v. Washington Liquor Co.,
8 Ida. 383, 389, 69 Pac. 112.) This rule has been recognized by other courts.
(Bibb v. State,
83 Ala. 84, 3 So. 711, 714;
Loman v. State,
19 Ala. App. 611, 99 So. 769 (4th case) at 770;
State v. Whitehead,
88 Wash. 549, 153 Pac. 349;
Commonwealth v. Ervine, supra.)
“
.... If appellant had pleaded guilty to a charge of vagrancy, the court papers and dockets should be used to show that fact.”
(Bowman v. State,
73 Tex. Cr. R. 194, 164 S. W. 846 (2d case) at 848.)
“Where a justice of the peace has acquired jurisdiction, the only competent evidence of the proceedings had is the record required by law to be made, .... ”
(Uhlenhake v. State,
58 Okla. Cr. 248, 52 Pac. (2d) 117, 120;
Whitwell v. State,
65 Okla. Cr. 178, 83 Pac. (2d) 881, 885;
Gittens v. Whelchel,
12 Ga. App. 141, 76 S. E. 1051;
Kerstetter v. Thomas,
36 Wash. 620, 79 Pac. 290.)
“Where there is written evidence of a fact in issue, the writing, whether required by law or not, is as a general rule the best evidence.....
“The record thereof is the best evidence of judgments and court proceedings generally.....” (16 C. J. 612, secs. 1203 and 1204; 22 C. J. 794, sec. 906; 22 C. J. 797, sec. 908; 35 C. J. 715.)
It is thus clear that under the above statutes and decisions the records of a justice court are admissible as the best evidence of proceedings had therein in criminal cases of which a written record is made as required by statute.
The defendant was given full opportunity to explain his version of what took place in the justice court and admitted he issued the check in question and that he “thought the money was there,” i. e., in the bank to pay the check, though the evidence conclusively showed it was not. His denial of intent to defraud merely raised an issue of fact which, from his course of conduct in the issuance of cheeks without regard to whether he had funds in the bank to pay them or not, the jury found against him.
Other cheeks unpaid for want of funds issued shortly after the one in question and when appellant’s depleted and exhausted bank account had not been replenished were properly admitted as evidence of his intent to defraud, a necessary ingredient of the offense.
(People v. Weir,
30 Cal. App. 766, 159 Pac. 442;
People v. Bercovitz,
163 Cal. 636, 126 Pac. 479, 43 L. R. A., N. S., 667;
State v. Lowe,
50 Ida. 96, 294 Pac.
339;
State v. Emory,
55 Ida. 649, 654, 49 Pac. (2d) 67;
State v. Dunn,
60 Ida. 568, 94 Pac. (2d) 779.)
Appellant contends he was compelled to testily against himself in violation of article 1, section 13 of the Constitution, in that he was asked upon the trial to, and did, produce one of these other cheeks. The record on this point is as follows:
During the examination of Mrs. T. J. Sedam, mother of appellant, to whom he gave the cheek upon which the prosecution rests, and others, called as a witness by the state:
“Q. Did you receive other checks from your son and cash them?
“A. I did.
“Q. How many?
“A. I don’t know.
“ Q. Do you remember one at the Peoples Store ?
“A. Yes.
“Q. Have you that check here?
“A. No, I haven’t.
“Q. Do you know where the check is?
“A. No, I don’t know, but I know it has been taken care of.
“Q. Did you see the check as late as yesterday?
“A. No.
“Q. Have you the Peoples Store cheek with you, Mr. Cordon ?
“The COURT: I will grant an order directing the defense to produce it.
“Mr. JEFFERY: "We had it down in court not later than two days ago.
“Mr. CORDON: The defendant says he will try and get it, your Honor.
“The COURT: At the first recess. You may proceed.”
And during the examination of Ivan Gasser, a witness for the state:
“Q. And did you have occasion to accept a check on or about the 23rd of December, last year, given by one James R. Sedam ?
“A. Yes, sir.
“Q. In what amount?
“A. $25.00 I think.
“Q. And what, if anything, was done with that check?
“Mr. CORDON: We object to this question, Your Honor, and all of them relating to this transaction, on the ground immaterial, irrelevant and incompetent, and unduly prejudicial, and not relating to the issues in this case.
“The COURT: Objection will be overruled to this question, and if counsel wish it I will deem the objection is made to any other questions concerning incidents similar to the transaction set up in the case but so far as any other grounds of objection they will have to be made to each individual question.
(Question repeated by reporter for witness.)
“A. We deposited the cheek.
“Mr. CORDON: Now, your Honor, we object to' this on the ground it is not the best evidence.
‘ ‘ The COURT: He has answered the question, Mr. Cordon ?
“Mr. CORDON: We ask it be stricken on the ground it is not the best evidence.
“The COURT: I will strike it for the purpose of your objection. It may be so stricken then if you will state your objection.
“Mr. 'CORDON: I object to it on the ground the-proof is not the best evidence.
‘ ‘ The COURT :' He may answer. That is if he deposited it yourself, you did yourself, Mr. Gasser?
“A. Yes, sir.
“Mr. JEFFERY, resuming:
“Q. Then what happened?
‘ ‘ The COURT: The former answer was stricken, will you answer the question again?
“A. I deposited the check in the bank.
“Mr. JEFFERY, resuming:
“ Q. And then what happened to this particular check ?
“A. It was returned to us.
‘ ‘ Q. And did you get in touch with Mrs. Sedam ?
“A. Yes, sir.
“Q. And how many times?
“A. Oh, four times I would say.
‘1Q. Then what did you do with the check ?
“A. I turned it over to you.
“ Q. Was it later returned by my office to you ?
“A. I don’t remember whether it was or not.
“The COURT: I think, Mr. Cordon, I shall not entertain the objection, the general objection to the line of testimony any more. I can see some danger in it so that from now on I will ask you to make your objections to each question.
“Mr. CORDON: Very well.
“Mr. JEFFERY: I am wondering if we couldn’t take a short recess and get these checks here in court and save a lot of time.
“Mr. CORDON: We don’t think the county attorney should ask this of the court. The witnesses are all here and the jury is here. Do you have other checks ?
“Mr. JEFFERY: Yes, but none other than we have asked Mrs. Sedam about.
“Mr. CORDON: If the court wishes it the defendant will get the cheeks.
“The COURT: The court doesn’t express any wish. The court is somewhat concerned about the check exhibited to the court the other day but—
“Mr. CORDON: The Peoples Store Check?
“The COURT: Yes, the one counsel exhibited to the court.
“Mr. JEFFERY: Counsel will recall three others laid on the table at the time.
“The COURT: Ordinarily we do not require the defendant to produce evidence against himself but in that particular case we was using that check in his behalf of a proceeding initiated by him in this ease.
“Mr. CORDON: I will say that at the first recess I will ask the defendant to find that check.”
Conceding without deciding appellant could not only have been compelled to produce this check, which evidently had been in Mr. Gasser’s and the prosecuting attorney’s possession, not only was no objection made that to produce the check violated any of appellant’s constitutional rights, but he voluntarily offered to and did produce it. Such constitutional rights may be waived and in the absence of objection no error is presented for our consideration.
(State v. Gruber,
19 Ida. 692, 115 Pac. 1;
State v. Peters,
43 Ida. 564, 253 Pac. 842;
State v. McClurg,
50 Ida. 762, 300 Pac. 898, 899;
State v. West,
42 Ida. 214, 217, 245 Pac. 85.)
Appellant does not assign as error the failure or refusal of the trial court to discharge or stay the proceedings herein nor its refusal to grant a parole and it is not asserted the trial court abused its discretion in not so doing.
“ .... In the absence of a clear abuse of discretion the action of the trial court will not be reviewed.....”
(State v. Neil,
58 Ida. 359, 364, 74 Pac. (2d) 586;
State v. Yockey,
57 Ida. 497, 66 Pac. (2d) 111;
In re Bolitho,
51 Ida. 302, 6 Pac. (2d) 855;
State v. Raponi,
32 Ida. 368, 182 Pac. 855;
State v. Arnold,
39 Ida. 589, 229 Pac. 748.)
The evidence is amply sufficient to sustain the conviction which is accordingly affirmed.
Morgan and Holden, JJ., concur.