I concur in the view expressed in the prevailing opinion that the information filed in this case does not charge a felony, but does charge a misdemeanor. Counsel for the state does not contend otherwise. The conviction of the defendant is thus founded upon an information which charges merely a misdemeanor, namely, that of possession of intoxicating liquor. In the absence of a prior conviction of one or more of the crimes defined by title 54 (§§ 3341-3381) Comp. Laws Utah 1917, the possession of intoxicating liquor is neither a felony nor an indictable misdemeanor, yet the procedure which was followed in this case is the procedure which our State Constitution and law prescribes shall be followed in prosecutions for the crimes of felonies and indictable misdemeanors. Article 1, § 13, of our State Constitution prescribes that offenses heretofore required to be prosecuted by indictments shall be prosecuted by "information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the State, or by indictment, with or without such examination and commitment." The crime of unlawfully having possession of intoxicating liquors is not within the class of crimes that were prosecuted by indictment prior to the adoption of our State Constitution. This action was commenced before the adoption *Page 365 of R.S. Utah 1933. The procedure that should have been followed must be tested by the law as it then was. Title 120, Comp. Laws Utah 1917, provided:
Section 8547: "The procedure in criminal cases in the courts of this state shall be as prescribed in this code."
Section 8549: "Every public offense must be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the state, or by indictment, with or without such examination and commitment, except:
"1. Where proceedings shall be had for the removal of a civil officer of the state, of a political subdivision thereof, of a municipality, or of a school district;
"2. Offenses arising in the militia when in actual service, and in the land and naval forces in time of war or public danger, or which the state may keep, with the consent of congress, in time of peace;
"3. Offenses triable in justices' and police courts."
Justices of the peace have criminal jurisdiction to try public offenses of "misdemeanors punishable by a fine of less than $300, or by imprisonment in the county jail or city prison not exceeding six months, or by both such fine and imprisonment." Comp. Laws Utah 1917, § 1784. Thus, when a complaint is filed with a justice of the peace, he must try the accused of the crime charged when he has jurisdiction to try the same as provided by title 120, c. 59, Comp. Laws Utah 1917. On the other hand, if a complaint is filed with a justice of the peace which charges a crime beyond his jurisdiction to try, then, and in such case, he may act merely as a committing magistrate. In such case the justice as a committing magistrate must proceed as directed by title 120, c. 16, Comp. Laws Utah 1917. The law does not confer upon a justice of the peace authority to hold an accused to answer to a charge to be filed in the district court where the crime charged in the complaint is an offense which the justice of the peace has jurisdiction to try. The complaint which was filed before the justice of the peace in this case is substantially the same as the information. The facts alleged in the complaint constitute a misdemeanor, but not an indictable *Page 366 misdemeanor nor a felony; therefore, the justice of the peace was without authority to hold the accused to answer the charge to be filed in the district court. The only authority conferred upon the justice of the peace under the allegations of the complaint filed herein was to proceed to try the accused as directed by law. The action of the justice of the peace in holding the accused to answer to the district court for the offense charged in the complaint which was filed in this case was a nullity.
Neither our State Constitution nor laws authorize a person accused of having committed a misdemeanor which is triable before a justice of the peace to be charged in an information with having committed such a crime. In such case the charge must be by complaint and not by information. It is said in 3 Freeman on Judgments (5th Ed.) p. 3190, that: "In criminal prosecutions as well as in civil actions the jurisdiction of the court over the subject-matter must be called into action in some manner authorized by law." In support of the text the cases of Ex parteBain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849; Ex parte Wilson,114 U.S. 417, 5 S. Ct. 935, 939, 29 L. Ed. 89, are cited. The cases support the text. This court has in effect applied the rule in civil cases. Stockyards Nat. Bank of South Omaha v. Bragg etal., 67 Utah 60, 245 P. 966; Hampshire v. Woolley, Judge,72 Utah, 106, 269 P. 135. As our law does not sanction the prosecution by information of a misdemeanor which is triable before a justice of the peace, it follows that the district attorney was not authorized to inform against the defendant for the offense charged in the information, and that the district court was without jurisdiction to try the accused for the offense charged in the information which was filed in this cause.
Counsel for the state have called our attention to the provisions of Comp. Laws Utah 1917, § 9025, which read as follows: "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense." *Page 367
They have also called our attention to the case of State v.Bohn, 67 Utah 362, 248 P. 119, where it is held that the crime of unlawfully having possession of intoxicating liquor is necessarily included in the charge of being a persistent violator of title 54, Comp. Laws Utah 1917. I am unable to see wherein the quoted statute or the cited case lends any support to the view that a misdemeanor triable before a justice of the peace may be prosecuted under an information filed in the district court. Neither the complaint nor the information filed in the instant case alleged sufficient facts to charge the defendant with the commission of a felony, namely, that of being a persistent violator of title 54, Comp. Laws Utah 1917. There being no proper charge that the defendant committed a felony, there can be no misdemeanor within a crime which is not charged. If the greater offense is not charged, the lesser offense cannot be within it.
Our State Constitution gives to accused persons the right of appeal in all cases. Article 1, § 12. Our State Constitution further provides that, "from all final judgments of the district courts, there shall be a right of appeal to the Supreme Court" (art. 8, § 9); also that "appeals shall also lie from the final judgment of justices of the peace in civil and criminal cases to the District Courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of the District Courts on such appeals shall be final, except in cases involving the validity or constitutionality of a statute." As heretofore indicated, the Legislature has enacted laws to carry into effect these provisions of our Constitution. The plain language of our Constitution grants to every person convicted of a crime the right to appeal. In criminal cases triable before a justice of the peace the appeal is had to the district court, and its decision "shall be final except in cases involving the validity or constitutionality of a statute." If a misdemeanor which is triable in a justice's court may be originally tried in the district court upon an information, then and in such case some of the provisions of our State Constitution *Page 368 and our Code of Criminal Procedure may be disregarded. Thus, if the same method of procedure may be followed in a prosecution of a person charged with a misdemeanor triable before a justice of the peace as is followed in the prosecution of a person charged with a felony or an indictable misdemeanor, then and in such case confusion must follow. This court may be called upon to review the record on appeal in some cases involving misdemeanors triable before a justice of the peace, while in other of such cases the decision of the district court will be final. If such a practice be approved, a justice of the peace may, as suits his fancy, either proceed to try or bind over to the district court for trial a person charged with a misdemeanor triable before him. To so construe the language of our State Constitution and Code of Criminal Procedure is, in my opinion, without justification. The fact that the defendant may not by her assignments of error have raised this exact question does not alter the situation. Our law relating to criminal procedure may not be altered by the consent of the parties to a cause.
I am thus of the opinion that the district attorney was not authorized to file an information in the district court charging the defendant with the misdemeanor of the unlawful possession of intoxicating liquor, and that the district court was without jurisdiction to try the defendant upon such a charge so prosecuted. In such a case the district court should sua sponte refuse to try the cause and should direct that the cause be remanded to the justice of the peace for trial unless the complaint should be so amended as to charge a felony. I thus concur in the reversal of the judgment. The majority of this court are of the opinion that the order should, in addition to reversing the judgment, direct that the cause be remanded to the district court of Beaver county, with directions to set aside the information and thereupon remand the cause to the justice's court of Milford, with directions to that court to take such further proceedings in the cause as it may be advised, not inconsistent *Page 369 with the views herein expressed. Such is the further order.