On the early morning of August 11, 1946, at Lewiston, Nez Perce County, Idaho, the appellant, Carlyle Salhus, while driving an automobile on the main street of said city collided with an automobile in which Mr. and Mrs. Tornow and Neva M. Loudon were the occupants, and from the collision and impact said Neva M. Loudon was mortally injured, resulting in her death on said 11th day of August, 1946. Appellant *Page 99 was taken before a committing magistrate, to-wit, Elmer M. Roise, Probate Judge, charged with Involuntary Manslaughter, was given a preliminary examination and held to answer in the District Court of the Tenth Judicial District of the State of Idaho in and for the County of Nez Perce. December 17, 1946, an information was filed in the District Court by the prosecuting attorney charging appellant with Involuntary Manslaughter. January 6, 1947, appellant was arraigned in the District Court, waived the reading of the information and "pleaded not guilty" to the offense charged therein. February 19, 1947, an affidavit of prejudice having been filed by appellant, disqualifying the Hon. Miles S. Johnson, District Court Judge, the Hon. Charles F. Koelsch was called as District Court Judge to act in all proceedings then pending or thereafter to be had in the above entitled cause. March 8, 1947, filed March 10, 1947, the prosecuting attorney served and filed his notice for leave to file an amended information, with permission to endorse the names of additional witnesses thereon. March 17, 1947, the application to amend the information was granted. On said March 17, 1947, a demurrer to the amended information was filed and overruled.
There is nothing in the record to disclose that any plea to the new or amended information was made and entered and none such was made or entered. Section 19-1416, I.C.A., is as follows:
"If, on the arraignment, the defendant requires it, he must be allowed a reasonable time, not less than one day, to answer the indictment. He may, in answer to the arraignment, move to set aside, demur, or plead to, the indictment."
The record discloses that the provisions contained in the foregoing statute were wholly ignored.
After the jury was impaneled the clerk was instructed to read the information to the jury and state the plea of the defendant. The clerk read the information to the jury including the names of all the witneses and informed the jury of the plea of appellant. There is no means of determining which information was read to the jury that is, whether the "original information" or the "new or amended information", nor is there any means by which it may be determined, except by inference, what the plea was. Appellant's plea, whatever it was and of which the jury was informed, was to the "original information" and not to the "new or amended information".
Since the majority opinion states that: "The amended information did not change or alter the charge of involuntary manslaughter, merely amplified the means and methods of its commission by adding: 'driving on the wrong side and across the center line of the highway'", it may be advisable to show what insertions were included in the new or amended information that were not contained in the original information and which are as follows: *Page 100 "* * * and heedlessly in wilful and wanton disregard of the rights and safety of others, * * * and in a manner so as to endanger person and property, * * * and on the wrong side of the highway, to-wit: Onto and across the center line and onto the defendant's left of the center line of said highway."
The majority opinion, after inviting attention to the fact that the clerk read the information and informed the jury of appellant's plea, observed that "no prejudice is shown." The foregoing statement that no prejudice was shown is not supported by any authority.
The question of prejudice is not involved. We are considering mandatory procedural enactments of the legislature, and which were disregarded and discarded by the trial court. That appellant was "not prejudiced" is not a substitute for failure to adhere to statutory requirements.
The record shows: "The Court: The clerk may read the information to the jury and state the plea of the defendant. Whereupon the clerk read the information to the jury, including the names of all the witnesses, and informed the jury of the plea of the defendant." It will be observed that it cannot be determined from what the clerk read, what the plea was and it will hereafter be noted how important it was for the clerk to state the plea substantially in the language of the statute. The majority opinion asserts that the plea to the original information carried over and was a plea and effective to the new or amended information. When the amended or new information was filed the original information became a superceded pleading, was functus officio, mere surplusage and had no force or effect, and was no longer before the court. There is nothing in the record to the effect that the clerk "stated the defendant's plea", the record shows that the clerk "informed the jury of the plea of the defendant." It should be kept in mind also that whatever plea the defendant made, if any, was to the original information. Regardless of what may be said as to the state of the record, it is disclosed that no plea to the amended or new information was ever made and entered and the assertion in the majority opinion that the court, through its instruction, corrected the oversight for failure to require appellant to plead to the new or amended information is not justified. Any statement by the trial court to the effect that appellant plead to the information cannot be substituted for the mandatory provisions of Sec. 19-1610, I.C.A. The defendant in a criminal case is not charged with the responsibility of the state of the record. That function belongs to the prosecuting officers. Nor, should the defendant be penalized for their failure to make a proper record. See Hartenbower v. Mutual Ben. Life Ins. Co. et al., 67 Idaho 254, 175 P.2d 698; C. I. T. Corporation v. Elliott, 66 Idaho 384, 159 P.2d 891, and cases therein cited. *Page 101
Section 19-1601, I.C.A., reads as follows:
"The only pleading on the part of the defendant is either a demurrer or a plea."
Section 19-1610, I.C.A., states:
"If the demurrer is disallowed, the court must permit the defendant at his election to plead, which he must do forthwith, or at such time as the court may direct. If he does not plead,the plea of not guilty must be entered for him." (Emphasis ours)
There are four kinds of pleas. (Sec. 19-1612, I.C.A.)
"1. Guilty.
"2. Not guilty.
"3. A former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty.
"4. Once in jeopardy."
Section 19-1613, I.C.A., states what the forms of pleas must be, to-wit:
"Every plea must be oral, and entered upon the minutes of the court in substantially the following form:
"1. If the defendant pleads guilty: 'The defendant pleads that he is guilty of the offense charged.'
"2. If 'he pleads not guilty: 'The defendant pleads that he is not guilty of the offense charged.'
"3. If he pleads a former conviction or acquittal: 'The defendant pleads that he has already been convicted (or acquitted) of the offense charged by the judgment of the court of __________ (naming it) rendered at __________(naming the place), on the __________ day of __________.'
"4. If he pleads once in jeopardy: 'The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place and court).'"
Oklahoma's statutory procedural law in criminal actions is very similar to our own, and the case of Trent v. State,66 Okla. Crim. 302, 91 P.2d 790, 791, is almost identical with the instant case. Because of the similarity of said cases we will refer to the Oklahoma case frequently, as we deem the history of the Oklahoma case very important in its application to the instant case. At the outset it is said:
"John T. Trent was by information charged in the District Court of Choctaw County with the crime of burglary in the second degree, was tried, found guilty as charged in the information, and his punishment fixed at two years in the State Penitentiary. Motion for a new trial was filed, considered, overruled, and the defendant appeals.
"The record discloses that after the information was filed against the defendant on the 28th day of September, 1936, the defendant was arraigned and entered his plea of not guilty; that on the 8th day of April, 1937, the State was granted permission to indorse the names of witnesses on *Page 102 the information to be used against the defendant in his trial.
"It is shown by the record on the 24th day of November, 1937, the case was called for trial. The State being represented by M.W. Gross, County Attorney of Choctaw County, and the defendant appeared in person and by his attorney of record J.H. Warren. The county attorney asked permission of the court to amend the information by adding the following words: 'and to deprive the owner thereof.' The court granted the permission of the State to amend the information. The defendant moved the court to grant him time in which to plead to the amended information, which motion was overruled and exceptions allowed.
"The defendant then moved the court to permit him to withdraw his plea of not guilty heretofore entered, and file a demurrer to the information, as amended, which motion was overruled, and the defendant excepted.
"The defendant then tendered and offered to file a demurrer to the information as filed herein, which tender by the court was refused and exceptions allowed.
"After this proceeding was had, the record shows the defendant filed a motion for a continuance in order to get ready to meet the amended information, which motion was overruled, and the court ordered a jury drawn and the trial proceeded with."
But two assignments of error were considered by the court in the Trent v. State case, to-wit: "The court erred in overruling the application of the petitioner to file demurrer after amendment of information", and "The court erred in refusing to give petitioner in error time to plead after filing amended information."
The court then observed:
"It will be seen from the amendment permitted to the information by the court that it was an amendment of substance and not of form when the court permitted the words: 'and to deprive the owner thereof'. It is not stated in the motion of the county attorney or the order of the court allowing the county attorney to make the amendment, in what part of the information the amendment is to be inserted, leaving the information, by the words: 'and to deprive the owner thereof', indefinite, imperfect, and not specifically advising the defendant charged with crime, where in the information the words should be inserted."
We find the same condition exists in the instant case. There is no doubt but what the words "* * * and heedlessly in wilful and wanton disregard of the rights and safety of other, * * * and in a manner so as to endanger person and property, * * * and on the wrong side of the highway, to-wit: onto and across the center line and onto the defendant's left of the center line of said highway," contained in the amended information, and *Page 103 which were not inserted in the original information, were amendments of substance and not of form and to which the appellant was not required or permitted to enter a plea, nor did the trial court (Sec. 19-1610, I.C.A.) enter a plea of not guilty for him.
Further quoting from the Trent v. State case, it is said:
"In this case we have a defendant brought before the bar of the court charged with a felony; and information had been filed against him; and he had plead to that information, not guilty. Later on, and on the day the case was called for trial, the county attorney asked permission of the court, and the court granted it, for him to file an amendment to the information; then it is shown that the defendant asked for time to plead to the information as amended; and the court denied him that right; and exceptions were duly saved. He then asked permission of the court to withdraw his plea of not guilty to the original information, and to be permitted to file a demurrer to the information as amended. This was denied him; and he offered to file a demurrer; and the court denied his offer. * * *
"In Bohannan v. State, supra [11 Okla. Crim. 69, 142 P. 1092], it is held that the filing of an amendment or a new information is the beginning of a new case, and the accused is always entitled to the statutory time in which to plead."
It is properly fitting to observe that the recitals by the court in the Oklahoma case plainly show that the information was amended by interlineation and which remained the information upon which the trial of the case was had. In the instant case the amendments proposed and allowed to the original information were not by way of interlineation but were by and through an entirely separate and distinct pleading thereby constituting a new information. Furthermore, the words of the amendment, inserted and included in the new or amended information, were words and amendments of substance.
The following statement by the Oklahoma court contains food for thought, and we think clerks also could well afford to familiarize themselves with their duties in connection with trials of criminal cases, to-wit:
"It is difficult to understand why a trial judge does not follow the procedure of his statutes and permit any pleading that is authorized by the statutes to be filed in order to avoid a controversy or a new trial. Judges are as much judges for the defendant as for the State, and are supposed to sit fairly and impartially between the rights of the State on one hand and the rights of the defendant on the other. To become a partisan either for the State or the defendant is to descend from the high position to which the judge is elevated and to assume the role of advocate." *Page 104
In the case of State v. Gennis, 41 N.M. 453, 70 P.2d 902,906, it is said:
"The impatience of the learned trial judge with defendant's demand for 24 hours' delay can easily be understood. He had been engaged for a week in the trial of other cases growing out of the same labor disturbances and had heard the State's witnesses give the same testimony repeatedly. Appellant's attorneys had represented other defendants. All concerned seemed familiar with the facts. However, this was a new cause, bearing a different number on the docket, and the information was a new pleading bearing the names of new witnesses. The appellant was entitled to the 24 hours demanded. 16 C.J. 389, 390; Bohannan v. State, 11 Okla. Crim. 69, 142 P. 1092; Dunkin v. State, 45 Okla. Crim. 203, 282 P. 692; State v. Jensen, 83 Utah 452,30 P.2d 203; State v. DeWolfe, 29 Mont. 415, 74 P. 1084."
Questions as to whether a plea was made and entered, or the sufficiency of the minute entry thereof, or whether, if made, it conformed to statutory mandate, was thoroughly covered in the case of State v. Burwell, 67 Idaho 373, 181 P.2d 197, 199.
The majority opinion attempts to distinguish between the necessity of a plea in the case of State v. Burwell and the instant case, in that in the case of State v. Burwell the demurrer was sustained and an amended information filed, while in the instant case the demurrer was overruled. Said opinion then states, that though an amended information was filed there was no change in the charge as contained in the original or amended information, that the charge remained the same i. e., manslaughter. It would be immaterial to what extent the informations were amended. The charge in the original and new or amended informations would remain the same, independent of the number of amendments made and inserted as long as the amendments could be used as a contributing means to the offense charged. There was no change in the charge contained in the original or amended informations in the case of State v. Burwell. The change therein, as will be observed, did not change the offense and was as to a matter of form not substance, in that it was sought to make more definite and certain the date of the commission of the offense. The demurrer in said case was sustained on the ground "that it did not conform to Section 19-1310, I.C.A., in that the date of the commission of the offense was uncertain," and the change in the new or amended information was, accordingly, thus inserted.
The assignment of error in State v. Burwell, with which we are concerned, states, "2. That the defendant at no time entered any plea to the amended information on file herein, as required by Section 19-1612, I.C.A., for the year 1932."
Sections 19-1612 and 19-1613, I.C.A., are heretofore set out herein and Section 19-1613, provides, that the plea must be oral *Page 105 and entered upon the minutes of the court in substantially the following form: "2. If he pleads not guilty: 'The defendant pleads that he is not guilty of the offense charged.'" In other words, the statement by the clerk that the jury wasinformed of the plea of the defendant means nothing because it can not be told therefrom what that plea was. A plea of former conviction or acquittal of an offense charged may be pleaded either with or without the plea of not guilty. Par. 3, Sec. 19-1612.
The majority opinion quotes from Herren v. State,72 Okla. Crim. 254, 115 P.2d 258, 265, as the latest expression incident to a plea. The first two paragraphs of said quotation are taken from the case of Hill v. State, 46 Okla. Crim. 56, 287 P. 1080. The last paragraph states that in that case the amendment was one of substance, but the court sustained the conviction on the ground that the amendment had not operated to the prejudice of the defendant.
Herren v. State, supra is far distant from being in point in the instant case as an analysis thereof will disclose. The amendment of the information in the Herren v. State case, came at a time when the trial was in progress. The defendant therein was charged with receiving stolen property. Prior thereto others had been prosecuted for burglary involving the same merchandise. The amendment was by interlineation and was allowed by adding after the word "Brady" in the fourth line of the body of the charge "and others unknown" and then in the seventh line after the word "bacon" adding the words "coffee and syrup pepsin" and then in the ninth line after the word "Brady" adding the words "and others unknown to your county attorney." The defendant objected to the amendment in that it deprived him of the right to plead that he had never been arraigned and was a new charge and that he had had no preliminary examination of said charge. In said case we find [72 Okl. Cr. 254. 115 P.2d 262]:
"`By the Court: I will overrule the objection and permit the interlineation of the information for the reason it is not a material variance. It does not change any of the dates, or any of the names of the defendant, or the names, it will not affect the witnesses in the least as the same witnesses would probably testify now as heretofore.'"
Oklahoma has a statute which reads:
"Section 2830, O.S. 1931, 22 Okl.St.Ann. § 304, is as follows: 'An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.'"
Further quoting: "In applying this statute, our court has held that if the amendment is one of substance so that it charges *Page 106 a new crime, or where the amendment has the effect of charging a crime where the information never had charged any offense prior to the amendment, that it was error for the court not to rearraign the defendant and give him the statutory time in which to plead to the new charge. Trent v. State,66 Okla. Crim. 302, 91 P.2d 790; Potts v. State, Okl.Cr.App., 113 P.2d 839, not yet reported [in State Reports].'"
In the foregoing quotation is the case of Potts v. State and therein is cited the case of Little v. State, 21 Okla. Crim. 1,204 P. 305, in which it is said:
"In prosecutions for felony by informations, no amendment to the information in the trial court is permissible, either before or after plea, which has the effect of charging an offense for which no preliminary examination had been given or waived by the defendant."
The majority opinion asserts that the new or amended information did not change the that the charge remained "manslaughter."
The record discloses, through the trial court's instructions, that the new or amended information contains provisions from three separate and distinct Motor Vehicle offenses not included in the original information. It is likewise disclosed that the defendant did not have a preliminary examination or plead to the new or amended information and, while it may be true, that the amendments inserted in the new or amended information did not change the plea from that of "manslaughter" to some other felony, nevertheless, the state should have given the defendant a preliminary examination in order that the defendant might be informed as to what he would have to meet in the trial of the case.
It is a far cry from the charge in the original information to that in the new or amended information. The record shows that the provisions of three motor vehicle violations are included in the new or amended information while only one is contained in the original information to which appellant was given a preliminary examination and plead. There are four provisions of motor vehicle violations in the new or amended information, and for three of which appellant was not given a preliminary examination nor allowed to plead.
In the Potts v. State case that court quotes with approval from Kelly v. State, 12 Okla. Crim. 208, 153 P. 1094, 1097, in which it is said:
"Under the provision of the Constitution already quoted, the defendant in a criminal case has the right to be informed as to the acts which he has committed which constitute his supposed crime * * *."
The majority opinion also quotes from Hamit v. State,42 Okla. Crim. 168, 275 P. 361, 368, in which it is pointed out that there was no error in refusing the defendant time to plead and also of refusing the defendant's *Page 107 plea of acquittal to the crime of murder in a former trial of the same case. Syllabus 3, of said case is as follows:
"The granting of a new trial to defendant convicted of manslaughter upon an information charging murder is not a bar to another trial under same information for the higher offense."
The quotation shows that a plea of guilty was entered before the first trial of the case and that the defendant insisted that it was necessary for him to plead again. The court held that it was not necessary for defendant to plead but once to the same charge unless such plea had been withdrawn and that inasmuch as the plea had not been withdrawn a second plea was not necessary.
The majority opinion also quotes quite at length from People v. Hall, 220 Cal. 166, 30 P.2d 23, 25, 996, from which it is shown that the defendant was arraigned on March 16, 1933, that he stood mute and the court entered a plea of not guilty. That thereafter on March 28, 1933, an amended information was filed; that the charge in the amended information remained identical with that of the original; that there was added a reference to the suffering by defendant of a prior felony conviction; that on March 29, 1933, defendant was arraigned on the amended information, at which time he admitted having suffered the prior felony conviction. No other additional plea was offered or received. At the conclusion of the prosecution's case, defendant moved for dismissal on the ground that no issue had been joined under the amended information. The motion was properly denied; there was no necessity for repetition of the plea on the general issue, as a plea thereto had already been made and since the defendant admitted the prior felony conviction, no plea thereto was required or proper.
State v. Wilson, 41 Idaho 598, 242 P. 787, in which a "plea" under the provisions of #8880 (now 19-1613) was considered and in which it is plainly indicated that the same must be in the form of the statute, it is said: "While this was an attempt to plead a former acquittal of the offense charged, it falls short of the statutory requirements of such a plea."
The case of People v. Corbett, 28 Cal. 328, 329, cited in State v. Burwell, and under an identical section and very similar facts, should be read in connection with the instant case. Among other things it is said:
"But neither the motion of defendant for a separate trial, nor the introduction of witnesses by him, nor the fact that the case was argued on his behalf to the jury — nor did all of them combined — cure the want of a plea. There was not only no arraignment, but over and beyond that, there was no issue for the jury to try. Not only did the defendant not plead, but inasmuch as the statute opportunity for pleading was never extended to him he was never under any obligation to plead. A *Page 108 verdict, in a criminal case, where there has been neither arraignment nor plea, is a nullity, and no valid judgment can be rendered thereon. (Douglass v. State, 3 Wis. [820] 830; 1 Whar. Sec. 530.) * * *
"Where either of the two are wanting, it is as fatal as though both were wanting. The presence of both is essential to an issue, and where there is no issue an oath administered to the jury would impose no obligation, nor would false swearing on the part of witnesses amount to perjury."
Likewise, in the case of People v. Gaines, 52 Cal. 479, 480, cited in State v. Burwell, it is said:
"The record in this case, fails to show any issue which the jury was called upon to try. It is the business and duty of the prosecuting officer of the government, to move on the trial of criminal cases, and to see that the proper issue be made up. * * * a plea, an issue, is absolutely essential. Nor can we supply an issue corresponding to the verdict, when the record is entirely silent on the subject. * * * It would be a dangerous precedent to hold that the court could here supply an issue after verdict, or that the defendant had waived his right to a trial of an issue in which he himself had joined, when nothing appears upon the record to show that he had expressly waived such right. * * *
"Until the defendant had pleaded to the indictment, there was no issue to be submitted to a jury, and the omission to plead is fatal to the judgment, even after verdict. (State v. Saunders, 53 Mo. 234; State v. Montgomery, 63 Mo. 296.)"
In the case of State v. Chambers, 9 Idaho 673, at page 678,75 P. 274, 276, cited in State v. Burwell, after a citation of numerous authorities, this court held the statute mandatory, and in passing upon the question, said:
"If it be necessary to take the plea in order to have an issue to try, it seems to us that it must logically and necessarily follow that the jury should be informed as to what the charge against the defendant is and the nature of his plea thereto. Under section 7780, Rev.St. 1887, an issue of fact arises in a criminal case upon the defendant entering any one of three separate and distinct pleas. It would therefore seem to reasonably follow that the jury should be informed both of the charge made against the defendant and the nature and character of the plea entered by him. But whatever the reason may be, the question is fully answered by the statute. The Legislature have [sic] seen fit to say that the indictment must be read and the plea stated to the jury, and in the face of this declaration by the lawmakers we are not prepared to say that its violation is immaterial and can be disregarded."
In the case of State v. Crea, 10 Idaho 88, at page 95,76 P. 1013, 1015, cited in State v. Burwell, it is said: *Page 109
"It appears from the record that the information was not read to the jury and the plea of the defendant stated to them at the opening of the trial, and that omission is assigned as error. Section 7855 of the Revised Statutes of 1887 provides that: 'The jury having been impaneled and sworn, the trial must proceed in the following order: (1) If the indictment is for a felony, the clerk must read it and state the plea of the defendant to the jury. * * *'
"By the provisions of that section the Legislature has laid down the order of trial in a criminal case, and it provides that after the jury has been impaneled, if the indictment be for a felony, the clerk must read it to the jury and state the plea of the defendant to them. Said provisions are too plain and obvious to require construction, and this court held, * * * that said provisions were mandatory, and the omission to read the information and state the plea of the defendant to the jury was reversible error. The omission to read the information and state the plea of the defendant to the jury was gross carelessness on the part of the prosecuting officer, as a new trial must be granted, and much additional costs will be incurred in a retrial of this action."
It may be observed that within the distribution of powers the legislative department is charged with the enactment of laws for the trial of criminal cases, as well as other purposes. Such function belongs exclusively to the legislature and may not be exercised by any other department of state. Accordingly, it is not within the powers of the judicial department to enact, amend, or repeal criminal procedural laws, irrespective of the desired purpose. Just because it may serve a good purpose can not excuse or justify the making of a bad rule, even though seemingly desirable. When the good purpose has been served the bad precedent remains to serve bad purposes and the fundamentals of government are destroyed.
If the statement "and deprive the owner thereof," inserted in the information in the Trent v. State case, and by the court held to be words of substance, are measured by the words and amendments inserted in the new or amended information in the instant case, it would needs be admitted that the comparison is overwhelmingly in favor of the words and amendments in the instant case as being matters of substance rather than form. Furthermore, if an information charging involuntary manslaughter contained only the words and amendments inserted in the new or amended information, it would, under appropriate arrangement, state a public offense and would be sufficient, after trial, to withstand a motion in arrest of judgment.
This opinion is limited to such questions as have arisen in connection with the arraignment and plea, and the failure of the clerk to make a proper minute entry and to state the plea to the jury as required by statute. There being no plea, obviously, *Page 110 there was no issue and the verdict and judgment were nullities. The judgment of the trial court should be reversed and the case remanded for a new trial.
I am authorized to state HOLDEN, J., concurs in this dissent.