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misdemeanors as peculiarly tend to disturb that no information should be filed without or endanger his government, or to molest or the express order of the court, publicly giv. affront bin in the regular discharge of his en. That statute does not enumerate the royal functions. For offenses so high and grounds which are sufficient to enable us to dangerous, in the punishment or preven- grant the information, but the legislature tion of which a moment's delay would be left it to our discretion, trusting that we fatal, the law has given to the Crown tlie should not so far transgress our duty as power of an immediate prosecution, without to go beyond the rules of sound discretion. waiting for any previous application to any In ordinary cases affidavits are sworn in the other tribunal, which power, thus neces- court for the express purpose of praying an sary, not only to the ease and safety, but information upon them, but that does not even to the very existence, of the executive preclude us from granting an information magistrate, was originally reserved in the on affidavits equally authentic, although not great plan of the English Constitution made for that purpose.” Sir James Fitzwherein provision is wisely made for the james Stephen, in his History of the Crimidue preservation of all its parts. The ob- nal Law of England (vol. 1, p. 296), in rejects of the other species of informations ferring to the act of 1692, regulating infiled by the master of the Crown office upon formations exhibited by the master of the the complaint or relation of a private sub- Crown office, also observes: “The practical ject are any gross and notorious misdemean- result of this statute has been to make a ors, riots, batteries, libels, and other im- motion for a criminal information practimoralities of an atrocious kind, not pecu- cally equivalent to a proceeding before mag. liarly tending to disturb the government istrates in order to the committal of the ac(for those are left to the care of the at. cused.” This distinguished jurist, on the torney general), but which, on account of page of his valuable work preceding that their magnitude or pernicious example, de- from which the foregoing excerpt is taken, serve the most public animadversion.” 4 in referring to the statute of 1494 (11 Hen. Bl. Com. *308. In the reign of Henry VII. VII. chap. 3), remarks: “This açt was the the remedy by information, exhibited on one under which Empson and Dudley earned leave of court by the master of the Crown their obscure infamy.” Blackstone, alluding office, became the means of great oppression to the act last referred to, and also to to the subjects of England. and so contin another ordained in the reign of the same ued with little abatement until 4 & 5 sovereign, makes the following statement: Wm. & Mary, chap. 11, and chap. 18, which “But when the statute 3 Hen. VII. chap. 1, provided, in effect, that the clerk of the had extended the jurisdiction of the court of Crown, in the court of the King's bench, star chamber, the members of which were should not, without express authority, to be the sole judges of the law, the fact, and the given by the court when in session, exhibit, penalty, and when the statute 11 Hen. VII. receive, or file any information for any of chap. 3, had permitted informations to be the causes for which it was allowable, nor brought by any informer upon any penal issue any process thereon, without taking statute, not extending to life or member, at a recognizance from the person procuring the assizes or before the justices of the such information to be exhibited, but that peace, who were to hear and determine the the act should not extend to any other in- same according to their own discretion, formation than such as should be exhibited then it was that the legal and orderly jurisin the court of King's bench by the master diction of the court of King's bench fell inof the Crown office. 2 Hawk. P. C. 358. to disuse and oblivion, and Empson and DuaThis learned author, after quoting the acts, ley (the wicked instruments of King Henry the substance of which is here given, makes VII.), by hunting out obsolete penalties, and the following declaration: “From whence this tyrannical mode of prosecution, with it follows that informations exhibited by other oppressive devices, continually harthe attorney general remain as they were at assed the subject and shamefully enriched the common law.” In King v. Jolliffe, 4 T. the Crown.” 4 Bl. Com. *310. It was the R. 285, Lord Chief Justice Kenyon, referring fear, undoubtedly entertained by the citizens to the act regulating the exhibition of in- of this country, that a violation of the rights formations by the master of the Crown of personal liberty, as practised in England office, says:

“Before the statute 4 & 5 Wm. in the reign of King Henry VII., miglit pos& Mary, chap. 18, it was in the power of any sibly be repeated to their injury, that individual to file an information, without prompted Congress to propose and secure disclosing to the court the grounds on which the adoption of the 4th Amendment to the it was exhibited. But that practice being Constitution of the United States. As this attended with the inconveniences recited in amendment was never intended to limit the the preamble to that statute, it was enacted powers of the states in respect to their own

people, but was designed to operate on the the same learned justice also remarked: national government only (Spies v. Illinois “If it appears to the King's attorney gener[Ex parte Spies] 123 U. S. 131, 31 L. ed. al to be right to grant an information, he 80, 8 Sup. Ct. Rep. 21, 22; Bolln v. Nebras- may do it himself. If he does not think it ka, 176 U. S. 83, 44 L. ed. 382, 20 Sup. so, he cannot expect us to do it.” The disCt. Rep. 287), the framers of the Constitu- cretionary power vested in and exercised by tion of this state embodied the substance the attorney general at common law dethereof in the Bill of Rights, which declares: volves, in this country, in the absence of “No law shall violate the right of the any statutory regulations, on the district people to be secure in their persons, houses, Co. 10 Or. 198; State ex rel. Taylor v. Lord,

attorneys (State 1. Douglas County Road papers, and effects, against unreasonable

28 Or. 498, 31 L. R. A. 473, 43 Pac. 471), search or seizure; and no warrant shall

who are entitled to prosecute persons for issue but upon probable cause, supported

the commission of crimes by information, as by oath or affirmation, and particularly describing the place to be searched, and cut leave of court (1 Bishop, New Crim.

a right pertaining to their office, and withthe person or thing to be seized,” Or. Proc. § 144; State v. Kyle, 160 Mo. 287, 56 Const. art. 1, § 9. This restrictive clause L. R. A. 115, 65 S. W. 763). "Therefore,” has been incorporated into the statute of says Mr. Justice Thomas in State v. Rans this state, which, so far as deemed involved berger, 106 Mo. 135, 17 S. W. 290, "when herein, is as follows: An information is the prosecuting attorney files an informathe allegatiou' or statement made before tion, it is always official; it is his accusaa magistrate, and verified by the oath of tion, and for it he is responsible.” In Terthe party making it, that a person has ritory v. Cutinola, 4 N. M. 305, 14 Pac. 809, been guilty of some designated crime. Bel- it was held, notwithstanding the 4th Amendlinger & C. Codes & Statutes, § 1581. When ment of the Constitution of the United complaint is made to a magistrate of the States was in force in the territory of commission of a crime, he must examine New Mexico, that, under the rules of the the informant on oath, and reduce his state common law as adopted in this country, ment to writing, and cause the same to be it was not essential that an information subscribed by him, and also take the deposi filed ex officio by a prosecuting attorney, tions of any witnesses that the informant charging the commission of a misdemeanor, may produce in support thereof. Id. § 1584. should be supported by affidavit. In that Thereupon, if the magistrate be satisfied case the court criticizes the decision of Bilthat the crime complained of has been com- lings, J., in United States v. Tureaud, 20 mitted, and that there is probable cause to Fed. 621, cited by defendant's counsel, and believe that the person charged has com- states that the part of the opinion relied mitted it, he must issue a warrant of ar upon “is the mere dictum of the judge, and rest. Id. § 1585. The necessity of satis- cannot be regarded as authority.” Section fying the magistrate that the crime com- 11 of article 2 of the Constitution of Misplained of has been perpetrated, and that souri, adopted October 30, 1875, declares there is probable cause to believe that the that no warrant to seize any person shall person charged has committed it, as a con- issue without probable cause, supported by dition precedent to the issuing of a warrant oath or affirmation reduced to writing. Secof arrest, is analogous to the leave of court tion 12 of article 2 of the organic law of which the master of the Crown office that state, which originally provided for in England was obliged to secure before he the prosecution of felonies by indictment was permitted to exhibit an information in only, was amended by resolution of the leg. the name of his sovereign.

islature, which, having been adopted by a At common law the attorney general, ex vote of the people, took effect December 19, officio, was invested with a discretionary 1900, substituting the following in lieu of power of filing informations charging the the former clause, to wit: commission of misdemeanors, and hence he shall be prosecuted criminally for felony or was not obliged to ask for or obtain leave of misdemeanor otherwise than by indictment court before exercising the responsibility or information, which shall be concurrent that devolved upon him by virtue of his remedies; but this shall not be construed to office. 4 Bl. Com. *309. Thus, in Rex v. apply to cases arising in the land or naval Philipps, 3 Burr.1564, it was ruled that the forces or in the militia when in actual servattorney general had a right himself, ex ice in time of war or public danger.” Mo. officio, to exhibit an information without Laws 1899, p. 382. After this amendment leave of court; Lord Mansfield saying: was adopted, it was held, notwithstanding “This is not a case within the act of 4 Wm. the Constitution of that state required the & Mary, chap. 18.” To the same effect is oath or affirmation supporting the probable Rex v. Davis, 4 Burr. 2089, in which case cause to be reduced to writing, that a prose

“No person

cuting attorney might file a criminal in- , authorize such deputies, or any of them, to formation based on his oflicial oath. State attend upon the sittings of the grand jury, v. Kyle, 166 Mo. 287, 56 L. R. A. 115, 65 S. and attend to and transact all business perW. 763; State v. Pohl, 170 Mo. 422, 70 S. taining to the district attorney's office." W. 695; State v. Fletchall, 31 Mo. App. 296; Bellinger & C. Codes & Statutes, § 2927, as State v. Wilk-son, 36 Mo. App. 373; State v. amended by act of December 28, 1903 (Sp. Parker, 39 Mo. App. 116.

Laws Or. 1903, p. 32). No evidence was The Bill of Rights of this state does not offered at the trial tending to show that demand that the oath or affirmation sus. the appointment of the deputy who signed taining the probable cause shall be reduced the name of the district attorney to the into writing, nor does our statute require an formation was in writing, or the extent of information charging the commission of a the power delegated to him. At common crime to be verified; and, in the absence of law, though the attorney general was auany enactment on the subject, the rules of thorized to exhibit informations, without the common law in relation to informations leave .of court, charging the commission of exhibited by the attorney general are ap- misdemeanors, if that office was vacant the plicable and controlling. The district at solicitor general was empowered to distorney of the proper judicial district in this charge that duty. In Wilkes v. King, 4 Bro. state is responsible for all informations filed P. C. 360, it was ruled that notice of the and is not obliged to obtain leave of court right of the solicitor general to exhibit an to discharge his duty in this particular be information would be taken, without proof fore he is permitted to exercise the discre of the vacancy in the office of attorney gention with which the law invests him. As eral. In that case it is said: “That the the circuit court is authorized to convene a attorney and solicitor general are invested grand jury when deemed advisable (Bellin by their offices with general authority to ger & C. Codes & Statutes, § 1264), indict. commence and prosecute the suits of the ments and informations are therefore con- Crown. It is true, the attorney general, current remedies, and, as the former means as the superior officer, has the direction and of charging the commission of a crime is control of His Majesty's prosecutions, in based on and supported by the oath of the which the solicitor general seldom intergrand jurors, which fact, in this state, need feres; but it is equally true that during the not be recited in the written accusation, so vacancy of the office of aftorney general all an information, under our statute, need not the suits of the Crown both criminal and be verified, for the official oath of the per- civil, are commenced, prosecuted, and carson whose duty it is to prosecute the formalried on by tne solicitor general. That at charge complies with the requirement of the time when these informations were filed the organic act, and supplies the necessary against Mr. Wilkes the office of attorney oath or allirmation, thereby supporting the general was vacant, and consequently the probable cause.

solicitor general was the proper officer to It is contended by defe lant's counsel

exhibit them. But it is said that the fact that the district attorney for the fourth of the vacancy ought to appear upon the judicial district did not prepare or file the record. The only pretense for such an averinformation herein, and hence the court erred in denying their motion to set it aside. ment is to inform the court of the vacancy,

as an inducement to receive the information John Manning, the officer mentioned, having been called as a witness by defendants from the solicitor general, but there is no counsel, testified that his signature to the necessity for that intelligence. The attorney information was not allixed by him, and general is, in truth, an officer of, and has a that he was not in Portland the day the in- place in, the court of King's bench, and the formation was filed. L. C. Hartman and court will take notice of the vacancy of J. P. Fones, whose names are indorsed on

the office; and there are multitudes of inthe information, appearing as defendant's stances of suits commenced and prosecuted witnesses, severally testified that, in fur- by the solicitor general on behalf of the nishing evidence as a basis for the informa- Crown, without any averment or notice taktion, they were sworn and examined in the en of the vacancy of the office of attorney office of the district attorney by a deputy. general.” In Choen v. State, 85 Ind. 209, That part of the statute authorizing a it was held that an indictment signed by a prosecuting oslicer to nominate representa person as “special prosecuting attorney" tives is as follows: "A district attorney, was not subject to a motion to quash, or during his continuance in offic?, shall be vulnerable to a plea in abatement, which entitled to appoint as many deputies in each did not deny the due appointment of such county as he may deem necessary, and special prosecuting officer. In deciding th may, by a written appointment filed with case, Mr. Justice Woods says: “A court the clerk of the circuit court of the county, takes cognizance of its own officers and of

the genuineness of their official signatures by law, and that no prejudicial error was and designations."

committed, the judgment is affirmed. In the case at bar the motion to set aside the information is based on the ground that A petition for rehearing having been filed, it was not found, indorsed, or presented as Moore, J., on March 27, 1905, handed down required by law. This objection was insuffin the following additional opinion: cient to challenge the appointment of the It is contended by defendant's counsel, deputy district attorney, and, as the trial in their petition for a rehearing, that if it court is presumed to be cognizant of its be conceded, as stated in the former opinion own officers and of the measure of their herein, that a district attorney in this state powers, no proof of the appointment of the possesses the power, formerly exercised ex deputy was necessary. There being no is officio by the attorney general in England, sue on this question, it must be assumed of exhibiting informations for misdemeanors that the deputy district attorney possessed only, a district attorney in Oregon has no plenary power, and was authorized to exam. authority in that manner to charge a felony. ine witnesses to enable him intelligently to The legal principle insisted upon challenges charge persons with the commission of the power of the legislative assembly to con

es, to prepare informations, sign the fer upon the district attorney such authoriname of the district attorney thereto, and to ty. The only reason that can be assigned file them in the circuit court. People v. Et to support this point is that such a procedting, 99 Cal. 577, 34 Pac. 237; United States ure is violative of the 14th Amendment to v. Nagle, 17 Blatchf. 258, Fed. Cas. No. the Constitution of the United States, in 15,852. In State v. Belding, 43 Or. 95, 71 that it may result in the deprivation of Pac. 330, it was held that the district attor- life or liberty without due process of law. ney having filed an information containing The Supreme Court of the United States, his name, printed under the indorsement, in construing this clause, has settled all con“A true information,” thereby adopted such troversy on the subject by holding that the printed name as his own signature, which prosecution of a person for a felony by an bound him as effectually as if he had person- inforniation only constitutes due process ally subscribed it to the accusation. So, too, of law. Hurtado v. California, 110 U. S. in the case at bar, when the district attor- | 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292 ; ney insisted on the defendant's pleading to Bolln v. Nebraska, 176 U. S. 83, 44 L. ed. the information, he thereby ratified the sub- 382, 20 Sup. Ct. Rep. 287. scription of his name by his deputy. The The similarity of power exercised district attorney, by virtue of his election officio under the rules of the common law by and oath of office, was authorized formally the attorney general of England, and that to charge persons with the commission of employed by a district attorney in this crimes perpetrated or consummated in the state, lies in the fact that the former was, judicial district in which he was chosen, and the latter, in the absence of legislation and, invoking the maxim, Qui facit per alium on the subject, is, authorized to perform the facit per se, when he caused the defendant duties devolving upon him without leave of to go to trial on the information filed by court. A district attorney may therefore, his deputy he thereby verified under his of- in his own discretion, file an information ficial oath the facts constituting the grava- charging the commission of any crime commen of the charge.

mitted or triable in the county for which he The office of deputy district attorney was is elected or appointed. An examination of not created by the organic law of this state, the rules of the common law, and an invesso as to require the appointee to swear to tigation of the mode of practice pursued by support the Constitutions of the United the attorney general of England thereunder, States and of this state (Or. Const. art. 15, necessarily lead to the conclusion that a § 3), nor have we been able to find any district attorney in this state, in the abstatutory provision demanding that he shall sence of any enactment on the subject, postake an oath of office; but as the deputy, in sesses the same measure of power exercised the case at bar, did not subscribe his own by him, and hence is not, like the master of name to the information but signed that of the Crown office, obliged to secure leave of the prosecuting attorney, who is a constitu- court before he can exercise his discretion, tional officer (Or. Const, art. 7, § 17), and but, like such attorney general, he has auspecially required to take an oath of office thority to file informations charging the (Bellinger & C. Codes & Statutes, $ 2502), commission of misdemeanors. This is the the information, which states the facts con- limit to the analogy between the powers of stituting the probable cause (Jones v. Rob- these officers, but, to the extent of the simbins, 8 Gray, 329), is supported by an oath. ilarity indicated, the ancient law is germane

Believing that the defendant had a fair and governs, demonstrating that a district and impartial trial in the manner prescribed attorney in this state possesses plenary pow


er to file informations without permission the legislative assembly of the power reof court.

served by the people in the fundamental law, His authority, however, so far as it re- and because their representatives, when aslates to the filing of informations charging sembled, considered it appropriate to desthe commission of felonies, is not derived ignate the district attorney as the proper from the common law, but directly from the person formally to charge the commission legislative assembly. Bellinger & C. Codes of crimes, his right to employ the authority & Statutes, § 1258. The organic law of conferred is as well founded as if the conthis state, in commanding the method to be trol in such matters had been delegated to pursued in securing jurors, is as follows: any other person or number of persons. "The legislative assembly shall so provide “An information,” as defined by the leg. that the most competent of the permanent islative assembly in 1864, "is the allegation citizens of the county shall be chosen for or statement made before a magistrate, and jurors; and out of the whole number in at- verified by the oath of the party making it, tendance at the court, seven shall be chosen that a person has been guilty of some desig. by lot as grand jurors, five of whom must nated crime.” Id. § 1581. In modifying concur to find an indictment. But the leg- the grand jury system, the legislative asislative assembly may modify or abolish sembly in 1899 designated the formal charge grand jurors.” Or. Const. art. 7, § 18. of the commission of a críme, made by the The legislative assembly, exercising the pow- district attorney as an "information,” but er thus reserved, passed an act, which was the accusation in writing might have been approved February 17, 1899 (Laws 1899, indicated as well by any other name. The p. 99), authorizing the district attorney word “information,' as defined in the statof any judicial district in this state to file ute first enacted, refers to the charge made informations charging persons with the com- before a magistrate, and in the last act to mission of any crimes, defined and made the complaint made by a district attorney. punishable by the laws of Oregon, that have We do not think the legislative assembly, been committed in the county where the in- by designating the formal charge last reformation is filed. Bellinger & C. Codes & ferred to as an “information," thereby inStatutes, § 1258. The information specified tended that the word used should be undershall be substantially in the form prescribed stood as meaning a verified statement, and for an indictment (Id. § 1304), except that for this reason resort must be had to go the words “district attorney" shall be used of the Bill of Rights of this state, and not instead of the words "grand jury” wherever to the statute defning the word, to deterthe same occur. Id. § 1259. The informa- mine whether or not the information filed tion, when filed, shall be construed like, and by the district attorney should be verified deemed to be in all respects the same as, an by an oath indorsed thereon or specially indictment, and the same proceedings shall made with reference thereto. The affidavits be had, and with like effect, as in cases where required to support the probable cause were indictments are returned by a grand jury. originally sworn in the court for the express Id. $ 1260. Any person within this state purpose of praying an information upon can be compelled by subpæna to appear be them. King v. Jolliffe, 4 T. R. 285. As fore a district attorney to testify concernat common law the attorney general in Eng. ing any crime inquired of by him. Id. ß land ex officio exhibited informations for 1261. The name of each witness thus ex: misdemeanors without leave of court, no amined by the district attorney shall be in necessity existed for the making of an affiserted at the foot of or indorsed upon the davit to support the probable cause, except information before it is filed. Id. 8 1262. by the master of the Crown office. This

A perusal of the act in question, the sub was the rule of the common law, as anstance of which is hereinbefore stated, will nounced in King v. Jolliffe, 4 T. R. 285, when show that it is in effect a modification of the 4th Amendment to the Constitution of the grand jury system, whereby that in the United States was ratified, and also quisitorial body has, except when in the when § 9 of the Bill of Rights of this state opinion of the court deemed advisable (Id. was adopted, commanding that no warrant § 1264), been superseded by the district at should be issued but upon probable cause, torney, who can find informations only on supported by oath or affirmation. A reathe testimony of witnesses taken before him, sonable interpretation of the clause of the which tends to show that a crime has been organic law of this state, to which attention committed in the county, and that there is is called, when read in connection with the reasonable cause to believe that the person rules of the common law, leads to the conto be charged is connected therewith and clusion that an indictment found and recan upon a trial therefor be convicted there- turned by a grand jury need not be special. of. The change in the manner of initiating ly verified by an oath of any person, and criminal actions is a reasonable exercise by that the same rule also applies to informa

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