Higgins v. Burton, Judge

THURMAN, J. Certiorari to review an order made by the defendant, quashing an information filed by plaintiff, as District Attorney, in the district court of Washington county, Utah. ' The application'as filed represents the plaintiff as the party beneficially interested, which is manifestly incorrect.- Plaintiff having moved this court for leave to amend, by substituting the state of Utah as plaintiff, an order was made granting said motion, and the amendment made accordingly.' The order quashing the information was. made in the case of the State of Utah v. William, J. Graham, wherein the information charged the defendant with the crime of embezzling certain certificates of capital stock of a corporation; said stock being of the alleged value of $15,000. Defendant Graham, by his counsel, moved to quash the information upon the *552 sole ground that there was a civil action pending to determine the ownership of the stock. The defendant in this ease, as judge of the Washington county district court, in which the information and motion to quash were filed sustained the motion to quash, liberated the defendant Graham, and discharged his bondsmen solely on the grounds stated in the motion. The question to be determined is, Did the defendant as judge of said court exceed his jurisdiction in quashing the information and releasing the defendant and his bondsmen? Compiled Laws Utah, 1917, § 8878, prescribes that an information may be set aside upon the following grounds: "(1) When it fails to recite that the defendant had theretofore been duly committed by a magistrate; “(2) When the names of the witnesses testifying on the part of the state in such examination are not Indorsed thereon; "(3) When it is not signed by the district attorney or by the attorney pro tern, for the state.” The next section enumerates the grounds for setting aside an information. In United States v. Cutler, 5 Utah, 608, 19 P. 145, it was held by this court that a motion to quash an indictment on the ground that the only witness before the grand jury was incompetent was not available, because the statute did not specify that as grounds for the motion. The statute then in force, Crim. Code. § 185 (Laws 1878, p. 99) substantially the same as the present law, did not specify incompetency of a witness as ground for setting aside an indictment. The rule announced in the Cutler Case is supported by the following cases: People v. Colby, 54 Cal. 37; People V. Schmidt, 64 Cal. 260, 30 P. 814; State v. Baughman, 111 Iowa, 71, 82 N. W. 452; State v. Tough, 12 N. D. 425, 96 N. W. 1025; Johnson v. State, 22 Tex. App. 206, 2 S. W. 609. The cases appear to be decided upon the maxim ‘ ‘ Expressio unius,” etc. By analogy the same rule should be applied to motions to quash an information. But, independent of the cases cited, it seems illogical, if not incongruous, to contend that a motion to quash should *553 prevail upon the grounds relied on in the instant case. It is certainly elementary that a given state of facts where the right to property is involved may constitute grounds for both a civil and a criminal action. In the one case individuals or corporations are the parties litigant; in the other the state or municipality is a party, and it would be incongruous to bold that the institution of a civil action by a private party could oust the state of its jurisdiction. The fact that the district attorney who filed the information was also attorney for plaintiff in the civil action does not alter the ease. If the district attorney, after commencing a civil action, in good faith believed that the matter complained of in the action was also a crime against the state, it was bis duty to institute criminal proceedings otherwise bis official duty would be subordinated to bis private business, which on bis part would amount to a palpable neglect of official duty. There being no right of appeal allowed the state in a case of this nature, or other plain, speedy, and adequate remedy, the court is of opinion the writ prayed for should be allowed. For the reasons stated, the order entered by defendant as judge of the trial court setting aside the information, discharging the defendant and relieving bis bondsmen, is hereby vacated, annulled, and set aside. No costs are allowed in this'case. WEBER, C. J., and GIDEON, FRICK, and CHERRY, JJ., concur. Term of office of WEBER, C. J., expired prior to action on petition for rehearing.