Appellant was charged in the probate court of Canyon county with having committed a misdemeanor. To the charge, appellant entered a plea of guilty, and he was adjudged to pay a fine of $100 and serve sixty days in the county jail. He appealed to the district court from such judgment, and, upon motion by the state, the court dismissed the appeal. This appeal is from this judgment of dismissal.
C. S., sec. 9263, provides that an appeal may be taken to the district court from any judgment of conviction rendered in any criminal action in a probate or justice court. The state contends, and the learned trial court appears to have so concluded, that an appeal does not lie from a judgment of conviction in the probate or justice court to the district court, where the defendant has entered a plea of guilty in the lower court. A criminal case appealed from a justice or probate court, after the appeal, stands the same in the district court as though it had been begun there. It is there for a new trial on every question that was raised, or that the defendant was not precluded from raising by his plea of guilty, in the justice or probate court. The proceedings in the trial de novo are substantially the same as in a case before the district court on indictment or information. Upon a trial de novo in the district court, the complaint takes the place of an indictment or information filed in that *Page 201 court. (State v. Stafford, 26 Idaho 381, 143 P. 528; C. S., secs. 9263, 9268.)
"A plea of guilty waives any defect not jurisdictional, and which may be taken advantage of by motion to quash or by plea in abatement. But it does not cure jurisdictional defects in an indictment; and if the latter is insufficient, from the standpoint of failing either to confer jurisdiction or to set forth facts sufficient to constitute a public offense, the plea of guilty confesses nothing. The right to a jury is waived also, and with it of course the constitutional guaranties with respect to the conduct of criminal prosecutions. While generally no evidence of guilt is required in order to proceed to judgment, for defendant has himself supplied the necessary proof, yet where the court possesses any discretion as to the extent of the punishment, it is its duty to hear evidence as to the aggravation and mitigation of the offense, and also for the purpose of determining the degree of the offense; . . . ." (16 C. J., sec. 738, pp. 403, 404.)
See, also, State v. Lewis (Or.), 230 P. 543; Ex parte DeLoche, 50 Tex. Cr. 525, 100 S.W. 923; Underhill's Criminal Evidence, 3d., sec. 237, p. 340.
The state further suggests the jurisdictional question as to whether an appeal lies to the supreme court, from this order of dismissal, under C. S., sec. 9068, but such right is expressly recognized in State v. Leeper, 30 Idaho 534, 165 P. 997, and in State v. Barnard, 13 Idaho 439, 90 P. 1. In the latter case, it is indicated, although not decided, that where a defendant has taken his appeal in substantial conformity with the provisions of the statute, he is entitled to have the case either tried or dismissed, and the court says: "It may be that a dismissal of his appeal would have amounted to a dismissal of the action against him under the peculiar provisions of our statute governing such appeals. (See Rev. Stats. 1887, secs. 8320-8327, inclusive)"; the sections last mentioned being now the sections above referred to of the Compiled Statutes.
We conclude that where a judgment of conviction has been entered in the probate or justice court upon a defendant's *Page 202 plea of guilty, he may appeal to the district court from such judgment, within the limitations herein indicated. The defendant may not upon such appeal, have the facts reviewed unless he has been permitted to withdraw such plea, for the reason that the plea of guilty, generally speaking, is a record admission of whatever is well charged in the complaint, and waives any defect not jurisdictional. If the information charges the commission of acts that are not made criminal by statute, or fails to state facts sufficient to constitute a crime, or where the court has no jurisdiction of the offense charged, or where the sentence imposed is unreasonable or in excess of that provided for by the statute, a legal wrong would result to the defendant, which, if it could not be corrected upon appeal, might leave the defendant remediless.
The judgment of the district court in dismissing the appeal is reversed.
Taylor, J., concurs.