Cross References.

Idaho Criminal Rules, see Idaho Court Rules Volume 2.

Idaho Rules of Evidence, see Idaho Court Rules Volume 1.

Rights of accused in criminal prosecution,Idaho Const., Art. I, § 13.

In General.

Reading this section together with its companion,§ 18-109, it is apparent that the legislature intended that neither death, imprisonment, fine, nor removal or disqualification from office be imposed as punishment for a crime without there first being “a legal conviction” of that crime. State v. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978).

Withheld Judgment.

For purposes of this section, conviction occurs when a verdict or plea of guilty is accepted by the court; and, where a verdict or plea of guilty has been accepted by the court but judgment on that plea or verdict has been withheld, this section neither precludes nor authorizes the imposition of criminal punishment, fines, or imprisonment, as conditions of that withheld judgment. State v. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978).

Outstanding withheld judgment based on a guilty plea qualifies as a conviction under Idaho law. United States v. Sharp, 145 Idaho 403, 179 P.3d 1059 (2008).

Federal Gun Control.

A person who is pardoned or who has successfully completed the period of a withheld judgment and had his guilty plea or conviction negated or expunged may possess and transact firearms without violating the federal Gun Control Act at 18 U.S.C.S. § 921 et seq.; however, during the probationary period of a withheld judgment and during and after the term which a person serves on probation with a suspended sentence or on parole, such person is a convicted felon for the purposes of the Gun Control Act.OAG 86-16.

Cross References.

Impeachment of state officers,§ 19-4001 et seq.

Prosecution by indictment,§ 19-1401 et seq.

Prosecution by information,§ 19-1301 et seq.

Removal of civil officers,§ 19-4101 et seq.

Similar constitutional provision,Idaho Const., Art. I, § 8.

Compiler’s Notes.

The justice and probate courts were abolished by S.L. 1969, ch. 100, § 1 which provided that wherever the words probate court or justice court appear they shall mean the district court or the magistrate’s division of the district court, as the case may be.

ALR.

Power of court to make or permit amendment of indictment with respect to allegations as to name, status, or description of persons or organizations. 14 A.L.R.3d 1358.

Sufficiency of indictment, information, or other form of criminal complaint, omitting or misstating middle name or initial of person named therein. 15 A.L.R.3d 968.

Necessity of alleging in indictment or information limitation — tolling facts. 52 A.L.R.3d 922.

Power of private citizen to institute criminal proceedings without authorization or approval by prosecuting attorney. 66 A.L.R.3d 732; 90 A.L.R.6th 385.

Constitutionality.

There is no violation of the constitution, in prosecution of person accused of crime, where prosecution is had in the name of “the state of Idaho” instead of in the name of the people of the state of Idaho. State v. Lockhart, 18 Idaho 730, 111 P. 853 (1910).

In General.

The violation of a state statute committed within the limits of a city cannot be prosecuted in the name of such city. City of Sandpoint v. Butigan, 91 Idaho 855, 433 P.2d 125 (1967).

Compiler’s Notes.

The reference to “this code” originally read “this act” and referred to the 1864 enacting session laws. That 1864 act now is codified throughout title 19, Idaho Code.

Cross References.

Constitutional guaranty,Idaho Const., Art. I, § 13.

Defendant entitled to discharge when indictment is not found against him within six months of arrest,§ 19-3501.

Parole.

Information that an inmate is a suspect in another, as yet uncharged, crime is relevant to parole decision and a rule that a denial of parole following the commission’s receipt of such information will constitute an “arrest” for the uncharged offense would hamper the functions of both the commission of pardons and parole and law enforcement authorities as such; therefore, the denial of parole to defendant was not the equivalent of an arrest for the sexual offense that remained under investigation and his continued incarceration was for the burglary conviction and it was not pretrial detention for the uncharged sex offense, and defendant’s sixth amendment rights were not implicated until formal charges were filed. State v. Brashier, 127 Idaho 730, 905 P.2d 1039 (Ct. App. 1995).

Public Trial.

Defendant in a prosecution for crime of assault with intent to commit rape was not deprived of public trial when court in its discretion required all spectators and all persons, except those necessarily in attendance, to retire from court room during trial. State v. Johnson, 26 Idaho 69, 144 P. 784 (1914).

Ex parte proceeding conducted by trial court in chambers upon motion of special prosecutor, without giving defendant notice or opportunity to attend, in which decision to shackle defendant during trial was made violated defendant’s rights to a public trial and to be present at all significant stages of a criminal action. State v. Crawford, 99 Idaho 87, 577 P.2d 1135 (1978).

Right to Counsel.

Lack of counsel at time of arraignment is not ground for setting aside continuance for term, in absence of showing that defendant demanded and was refused right to have counsel present. State v. Athens, 36 Idaho 224, 210 P. 133 (1922).

Speedy Trial.

Where complaint for issuing fraudulent checks was filed March 6, 1964, a hold order was sent to the state penitentiary, where defendant had been returned for violation of probation, on July 24, 1964, defendant requested a speedy trial on September 29, 1964, and on December 18, 1964, he was delivered to the county sheriff and arrested February 24, 1965, a preliminary hearing was held March 4, 1965, and defendant petitioned for a writ of habeas corpus on May 4, 1965, defendant was not accorded a speedy trial within the guarantees of this section. Jacobson v. Winter, 91 Idaho 11, 415 P.2d 297 (1966) (see§ 19-3501).

Any delay caused by the defendant’s resistance to extradition is tolled for the purposes of a speedy trial. Balla v. State, 97 Idaho 378, 544 P.2d 1148 (1976).

The right to speedy trial is guaranteed byIdaho Const., Art. I, § 13, and this section which merely restates the protection granted byIdaho Const., Art. I, § 13. Both are comparable to that protection provided by the U.S. Const., Amends. 6 and 14. State v. Carter, 103 Idaho 917, 655 P.2d 434 (1981).

Where there was a seven-and-one-half- month delay between the date the criminal complaint was issued and the date of trial, but there was no indication that prosecution engaged in dilatory tactics and delay caused by improper jury selection followed from defendant’s motion to dismiss, and where no prejudice was shown, defendant’s right to speedy trial was not violated. State v. Carter, 103 Idaho 917, 655 P.2d 434 (1981).

Where the interval between the filing of information and the defendant’s filing of his motion to dismiss for lack of speedy trial was approximately eight months and was sufficient to trigger an inquiry into whether a speedy trial has been denied, the eight-month period is not in itself so excessive as to outweigh other balancing factors. State v. Johnson, 119 Idaho 56, 803 P.2d 557 (Ct. App. 1990).

In determining whether there has been a denial of a speedy trial, where the defendant was arrested for unknown crimes in another county, subsequently left the state and did not notify his own attorney or the prosecutor of his departure or whereabouts, the state met its burden by showing that the prosecution made a reasonable endeavor to locate the defendant, to take action to procure his return, and to continue the prosecution as soon as he was located, and the reasons for the delay in this case weigh more heavily against the defendant and are more properly attributable to him than to the state. State v. Johnson, 119 Idaho 56, 803 P.2d 557 (Ct. App. 1990).

Where the defendant was not subjected to oppressive pretrial incarceration nor was there any contention that his ability to present his defense was impeded by a delay, he has not alleged that he was prejudiced by the delay in any way and the court gave no weight to the factor of prejudice. State v. Johnson, 119 Idaho 56, 803 P.2d 557 (Ct. App. 1990). Defendant, who agreed to plead guilty to a lesser offense midway through his trial that had been twice vacated and occurred eleven months after his being charged with rape, did not have his right to a speedy trial denied because his valid guilty plea, voluntarily and understandingly given, waived both the right to a speedy trial as well as the consideration of the denial of such right as fundamental error which could be raised for the first time on appeal. State v. Garcia, 126 Idaho 836, 892 P.2d 903 (Ct. App. 1995).

This section simply restates the speedy trial protection granted byIdaho Const., Art. I, § 13 and therefore affords no additional safeguard to that already provided byIdaho Const., Art. I, § 13. State v. Brashier, 127 Idaho 730, 905 P.2d 1039 (Ct. App. 1995).

ALR.

Scope and extent, and remedy or sanctions for infringement, of accused’s right to communicate with his attorney. 5 A.L.R.3d 1360.

Attorney’s refusal to accept appointment to defend indigent or to proceed in such defense, as contempt. 36 A.L.R.3d 1221.

Determination of indigency of accused entitling him to appointment of counsel. 51 A.L.R.3d 1108.

Accused’s right to choose particular counsel appointed to assist him. 66 A.L.R.3d 996.

Accused’s right to represent himself in state criminal proceeding — Modern state cases. 98 A.L.R.3d 13.

Application of speedy trial statute to dismissal or other termination of prior indictment or information and bringing of new indictment or information. 39 A.L.R.4th 899.

Relief available for violation of right to counsel at sentencing in state criminal trial. 65 A.L.R.4th 183.

Criminal defendant’s representation by person not licensed to practice law as violation of right to counsel. 19 A.L.R.5th 351.

Adequacy of defense counsel’s representation of criminal client-issues of mental matters concerning persons, other than counsel’s client, who are involved in criminal case. 80 A.L.R.5th 55.

Determination of request for exclusion of public from state criminal trial in order to preserve safety, confidentiality, or well-being of witness who is not undercover police officer — Issues of proof, consideration of alternatives, and scope of closure. 32 A.L.R.6th 171.

Basis for exclusion of public from state criminal trial in order to preserve safety, confidentiality, or well-being of witness who is not undercover police officer. 33 A.L.R.6th 1.

Construction and application of speedy trial act, 18 USC §§ 3161 to 3174 — United States supreme court cases. 46 A.L.R. Fed. 2d 129.

Cross References.

Double jeopardy prohibited,Idaho Const., Art. I, § 13.

Prior Laws.

Former§ 19-107, which comprised Cr. Prac. 1864, § 11; R.S., R.C., & C.L., § 7356; C.S., § 8622; I.C.A.,§ 19-107, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 2, effective April 1, 1972, in the same words as the section read prior to its repeal.

Former Acquittal.

No judgment of conviction can be sustained unless jury has given adverse finding on plea of formal acquittal, when such plea is interposed. State v. Gutke, 25 Idaho 737, 139 P. 346 (1914).

Former Jeopardy.

A defendant, pleading former jeopardy to a charge of second degree murder after pleading guilty to a charge of assault and battery on decedent, was not prejudiced by failure of court to dismiss assault and battery charge since the felony charge would lie as against a plea of former jeopardy after plea of guilty on misdemeanor as well as after sentence. State v. Randolph, 61 Idaho 456, 102 P.2d 913 (1940).

One charged with an included offense as well as a higher offense is protected against double jeopardy, since conviction or acquittal under either offense results in conviction or acquittal of the other offense. State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), appeal dismissed, 345 U.S. 834, 73 S. Ct. 834, 97 L. Ed. 2d 1364 (1953); State v. Wall, 73 Idaho 142, 248 P.2d 222 (1952).

In light of the purpose of the Major Crimes Act (MCA), 18 U.S.C.S. § 1153, and uniform authority, defendant’s argument that the district court should have applied Idaho’s double jeopardy law failed, because what Idaho courts might think about the legality of defendant’s federal prosecution was irrelevant, and the MCA’s incorporation of state law notwithstanding, the offense for which defendant was prosecuted was a federal offense, and whether defendant’s prosecution violated the Double Jeopardy Clause is a federal issue to be determined by reference to federal constitutional principles. United States v. Pluff, 253 F.3d 490 (9th Cir. 2001).

C.J.S.

ALR.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy. 6 A.L.R.3d 905.

Propriety of increased punishment on new trial for same offense. 12 A.L.R.3d 978.

When does jeopardy attach in a nonjury trial. 49 A.L.R.3d 1039.

Cross References.

Constitutional guaranty,Idaho Const., Art. I, § 13.

Cross-Examination.

Court should instruct jury in proper case that no presumption can be raised against defendant by reason of his refusal to testify, but, where defendant voluntarily submits himself as a witness in his own behalf, he may be cross-examined by state, subject to the same rules and regulations governing cross-examination that apply to other witnesses. State v. Gruber, 19 Idaho 692, 115 P. 1 (1911).

Provisions of this section are qualified by rule that one who has voluntarily made himself witness in his own behalf is subject to same rules of cross-examination that apply to all other witnesses. State v. Larkins, 5 Idaho 200, 47 P. 945 (1897), overruled on other grounds, State v. White, 93 Idaho 153, 456 P.2d 797 (1969); State v. Martinez, 43 Idaho 180, 250 P. 239 (1926).

Where defendant had requested to see a detective and, in the discussion which followed, waived his right to remain silent and denied any knowledge of the crimes and referred to the victim as “this such and such lady,” a term which can be construed to contradict his in-court assertion that he had an affair with the victim, the prosecutor’s questions at trial, concerning his initial failure to tell police he knew the victim, did not impermissibly infringe on the exercise of his right to remain silent. State v. Wolverton, 120 Idaho 559, 817 P.2d 1083 (Ct. App. 1991).

Prior Conviction.

This section is not violated by requiring a criminal defendant who has voluntarily taken the witness stand in his own behalf to answer on cross-examination whether or not he has been convicted of a felony. State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967).

Cited State v. Hargraves, 62 Idaho 8, 107 P.2d 854 (1940); State v. Mundell, 66 Idaho 297, 158 P.2d 818 (1945).

Cited

Am. Jur. 2d.

ALR.

Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification. 24 A.L.R.3d 1261.

Propriety of requiring accused to give handwriting exemplar. 43 A.L.R.3d 653.

Admissibility of sound recordings in evidence as affected by privilege against self-incrimination. 57 A.L.R.3d 746; 58 A.L.R.3d 598.

Propriety and prejudicial effect of prosecution’s calling as witness, to extract claim of self-incrimination privilege, one involved in offense with which accused is charged. 19 A.L.R.4th 368.

Admissibility in criminal case of evidence that accused refused to take test of intoxication. 26 A.L.R.4th 1112.

Admissibility and weight of blood grouping tests in disputed paternity cases. 43 A.L.R.4th 579.

Admissibility of bare footprint evidence. 45 A.L.R.4th 1178.

Compiler’s Notes.

The justice and probate courts were abolished by S.L. 1969, ch. 100, § 1 which provided that wherever the words probate court or justice court appear they shall mean the district court or the magistrate’s division of the district court, as the case may be.

Cross References.

Idaho Criminal Rules, see Idaho Court Rules Volume 2.

Prior Laws.

Former§ 19-201, which comprised Cr. Prac. 1864, § 14; R.S., R.C., & C.L., § 7368; C.S., § 8625; I.C.A.,§ 19-201, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 3, effective April 1, 1972, in the same words as the section read prior to its repeal.

Defense of Property.

Even if the victim’s removal of a box of documents from defendant’s vehicle was unlawful, defendant’s actions could not be reasonably interpreted as resistance necessary to prevent an offense because, at the time defendant battered the victim, the box had already been removed from his vehicle and he did not know its location; therefore, no resistance could have prevented an unlawful taking. Further, no evidence suggested that there was an imminent threat that the victim would destroy the documents, which could justify resistance to prevent such injury; therefore, the evidence did not support the legal theory of defense of property and, thus, the magistrate did not err in refusing to give that jury instruction. State v. Walsh, 141 Idaho 870, 119 P.3d 645 (Ct. App. 2005).

Reasonable Fear.

Because the right to defend oneself embodied in statutes does not require that the defendant believe himself to be in danger of great bodily injury in order to assert self-defense as justification for a battery, evidence of reasonable fear of some level of bodily harm was all that was required for the defendant to have the jury instructed on self-defense. State v. Hansen, 133 Idaho 323, 986 P.2d 346 (Ct. App. 1999).

Self-Defense.

The right of self-defense arises the moment an attack is made, though the party assailed may not have reason to believe that his assailant intends to inflict upon him “great bodily injury.” It may be, that the assailant intends to chastise or whip his victim without any real or apparent intention of inflicting serious bodily injury; but when he makes the attack, or it becomes apparent that he intends to execute such purpose, and with present ability so to do, the right of defense arises and clothes the intended victim with legal authority to resist, and if possible, prevent the execution of such unlawful purpose. No man has a right to lay hostile, threatening hands on another, except when he is armed with legal authority to do so; and the one who does so acts at the risk of being met with sufficient superior force and violence to overcome such assault. State v. Woodward, 58 Idaho 385, 74 P.2d 92 (1937).

In a prosecution for assault with a deadly weapon, it was error to instruct the jury that the defendant was entitled to bear firearms under the constitution with the addition that the legislature had power to regulate the exercise of such right and that the jury could consider this in connection with other instructions, where court did not tell the jury how the legislature had regulated such right. State v. Woodward, 58 Idaho 385, 74 P.2d 92 (1937).

In a case where defendant was convicted of battery on a jailer/correctional or detention officer, the district court erred in ruling that defendant was not entitled to a self-defense jury instruction. The evidence was undisputed that force was used on defendant and there was a question of fact whether that force was excessive, as an officer heard defendant make guttural-type noises and state that he could not breathe while being held on the ground by other officers. Defendant had a right to reasonably defend himself, and there was a question of fact about whether defendant’s responding use of force of kicking one of the officers was reasonable. State v. Garner, 159 Idaho 896, 367 P.3d 720 (Ct. App. 2016).

Compiler’s Notes.

S.L. 2018, Chapter 222 became law without the signature of the governor.

Prior Laws.

Former§ 19-202, which comprised Cr. Prac. 1864, § 15; R.S., R.C., & C.L., § 7369; C.S., § 8626; I.C.A.,§ 19-202, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 3, effective April 1, 1972, in the same words as the section read prior to its repeal.

Amendments.

The 2018 amendment, by ch. 222, designated the existing provisions as subsection (1), redesignating the paragraphs therein and substituting “person” for “party” in the introductory paragraph; and added subsection (2).

Compiler’s Notes.

S.L. 2018, Chapter 222 became law without the signature of the governor.

Defense of Property.

Even if the victim’s removal of a box of documents from defendant’s vehicle was unlawful, defendant’s actions could not be reasonably interpreted as resistance necessary to prevent an offense because, at the time defendant battered the victim, the box had already been removed from his vehicle and he did not know its location; therefore, no resistance could have prevented an unlawful taking. Further, no evidence suggested that there was an imminent threat that the victim would destroy the documents, which could justify resistance to prevent such injury; therefore, the evidence did not support the legal theory of defense of property and, thus, the magistrate did not err in refusing to give that jury instruction. State v. Walsh, 141 Idaho 870, 119 P.3d 645 (Ct. App. 2005).

Homicide.

An instruction in a homicide case was incorrect when based on former§§ 19-202 and 19-203, which gave the right to use resistance sufficient to prevent the offense, since the law relevant to a homicide case was former§ 18-4009, which permitted self-defense with a deadly weapon where accused had reasonable cause to believe he was in danger of “great bodily injury” or where the person being defended was in similar danger. State v. Rodriguez, 93 Idaho 286, 460 P.2d 711 (1969).

Jointly Owned Property.

This section does not apply to taking of property jointly owned by parties and in possession of one of them. State v. Roby, 43 Idaho 724, 254 P. 210 (1927).

Resistance Not Warranted.

Despite defendants’ contention that it was unlawful, city’s conduct in removing a Ten Commandments monument from a public park did not constitute an imminent threat of personal injury, robbery, or other specific crime for which resistance is permitted, and, thus, appellants who objected to its removal were not entitled to prevent it by committing the separate offense of resisting and obstructing an officer. State v. Gamma, 143 Idaho 751, 152 P.3d 622 (Ct. App. 2006).

Self-Defense.

In prosecution for aggravated assault, the trial court did not err in refusing to give the requested self-defense instructions, where any threat to the defendant had subsided when the victim left his presence; thus, he was not “about to be injured” and lawful resistance was unnecessary. State v. Mason, 111 Idaho 660, 726 P.2d 772 (Ct. App. 1986).

The right to defend oneself does not require that the defendant believe himself to be in danger of great bodily injury in order to assert self-defense as justification for a battery. Evidence of reasonable fear of some level of bodily harm is all that is required for the defendant to have the jury instructed on self-defense. State v. Hansen, 133 Idaho 323, 986 P.2d 346 (Ct. App. 1999).

Cited

In a case where defendant was convicted of battery on a jailer/correctional or detention officer, the district court erred in ruling that defendant was not entitled to a self-defense jury instruction. Evidence was undisputed that force was used on defendant and there was a question of fact whether that force was excessive, as an officer heard defendant make guttural-type noises and state that he could not breathe while being held on the ground by other officers. Defendant had a right to reasonably defend himself, and there was a question of fact about whether defendant’s responding use of force of kicking one of the officers was reasonable. State v. Garner, 159 Idaho 896, 367 P.3d 720 (Ct. App. 2016). Cited State v. Woodward, 58 Idaho 385, 74 P.2d 92 (1937).

Amendments.

The 2018 amendment, by ch. 222, rewrote the section heading, which formerly read: “Legal jeopardy in cases of self-defense and defense of other threatened parties ”; designated the existing provisions as subsection (1); and added subsections (2) through (5).

Compiler’s Notes.

S.L. 2018, Chapter 222 became law without the signature of the governor.

Construction.

This section cannot be construed to mean that “coming to the aid” of a victim applies when the crime against the victim is long past, nor does “victim” mean a victim against whom a crime has already been completed. State v. Arrasmith, 132 Idaho 33, 966 P.2d 33 (Ct. App. 1998).

Because the right to defend oneself embodied in statutes does not require that the defendant believe himself to be in danger of great bodily injury in order to assert self-defense as justification for a battery, evidence of reasonable fear of some level of bodily harm was all that was required for the defendant to have the jury instructed on self-defense. State v. Hansen, 133 Idaho 323, 986 P.2d 346 (Ct. App. 1999).

Fear of Bodily Harm.

Court, in defendant’s domestic battery case, did not err by denying defendant’s request for a self-defense instruction, where defendant presented no evidence that defendant reasonably feared some degree of bodily harm from the victim. State v. Hoover, 138 Idaho 414, 64 P.3d 340 (Ct. App. 2003).

Jury Instructions.

In a case where defendant was convicted of battery on a jailer/correctional or detention officer, the district court erred in ruling that defendant was not entitled to a self-defense jury instruction. The evidence was undisputed that force was used on defendant and there was a question of fact whether that force was excessive, as an officer heard defendant make guttural-type noises and state that he could not breathe, while being held on the ground by other officers. Defendant had a right to reasonably defend himself, and there was a question of fact about whether defendant’s responding use of force of kicking one of the officers was reasonable. State v. Garner, 159 Idaho 896, 367 P.3d 720 (Ct. App. 2016).

Resistance Not Warranted.

Despite defendants’ contention that it was unlawful, city’s conduct in removing a Ten Commandments monument from a public park did not constitute an imminent threat of personal injury, robbery, or other specific crime for which resistance is permitted; thus, appellants, who objected to its removal were not entitled to prevent it by committing the separate offense of resisting and obstructing an officer. State v. Gamma, 143 Idaho 751, 152 P.3d 622 (Ct. App. 2006).

Prior Laws.

Former§ 19-203, which comprised Cr. Prac. 1864, § 16; R.S., R.C., & C.L., § 7370; C.S., § 8627; I.C.A.,§ 19-203, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 3, effective April 1, 1972, in the same words as the section read prior to its repeal.

Homicide.

An instruction in a homicide case was incorrect when based on former§§ 19-202 and 19-203, which gave the right to use resistance sufficient to prevent the offense, since the law relevant to a homicide case was former§ 18-4009, which permitted self-defense with a deadly weapon where accused had reasonable cause to believe he was in danger of “great bodily injury” or where the person being defended was in similar danger. State v. Rodriguez, 93 Idaho 286, 460 P.2d 711 (1969).

Resistance Not Warranted.

Despite defendants’ contention that it was unlawful, city’s conduct in removing a Ten Commandments monument from a public park did not constitute an imminent threat of personal injury, robbery, or other specific crime for which resistance is permitted; thus, appellants who objected to its removal were not entitled to prevent it by committing the separate offense of resisting and obstructing an officer. State v. Gamma, 143 Idaho 751, 152 P.3d 622 (Ct. App. 2006).

Use as Defense.

No reasonable view of the evidence supported giving an instruction on the defense of others under this section; defendant should not have hit his friend’s assailant with a beer bottle where the circumstance were such that the risk of further harm to the friend was slight; the beer bottle was a deadly weapon used against an unarmed person. State v. McNeil, 141 Idaho 383, 109 P.3d 1125 (Ct. App. 2005).

Peace Officers.

No authority exists for a city to appoint the employees of a private company to serve as “peace officers.”OAG 08-02.

Prior Laws.

Former§ 19-205, which comprised Cr. Prac. 1864, § 18; R.S., R.C., & C.L., § 7376; C.S., § 8629; I.C.A.,§ 19-205, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 3, effective April 1, 1972, in the same words as the section read prior to its repeal.

Cross References.

Surety bonds in lieu of other bonds,§ 41-2604.

Cross References.

Affrays, breaches of the peace, riots and insurrections, sheriff to prevent and suppress,§ 31-2202.

Cross References.

Calling out national guard,§ 46-602 et seq.

Cross References.

Riot defined,§ 18-6401.

Unlawful assembly defined,§ 18-6404.

Prior Laws.

Former§ 19-224, which comprised Cr. Prac. 1864, § 38; R.S., R.C., & C.L., § 7403; C.S., § 8648; I.C.A.,§ 19-224, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 3, effective April 1, 1972, in the same words as the section read prior to its repeal.

Amendments.

The 2012 amendment by ch. 20, substituted “his deputies or the officials governing the town or city shall” for “his deputies, the officials governing the town or city, or the justices of the peace and constables thereof, or any of them, must”.

Prior Laws.

Former§ 19-225, which comprised Cr. Prac. 1864, §§ 39, 42; R.S., R.C., & C.L., § 7404; C.S., § 8649; I.C.A.,§ 19-225, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 3, effective April 1, 1972, in the same words as the section read prior to its repeal.

Cross References.

Calling out national guard,§ 46-602 et seq.

Amendments.

The 2012 amendment, by ch. 20, deleted “or probate judge of the county” preceding “by proclamation” near the middle of the section.

In General.

Proclamation of governor declaring certain county to be in state of rebellion and calling to his aid military forces of the United States had effect of limited martial law in the county and was in harmony with orderly constitutional government. In re Boyle, 6 Idaho 609, 57 P. 706 (1899), appeal dismissed, 178 U.S. 611, 20 S. Ct. 1029, 44 L. Ed. 2d 1215 (1900).

Power of Governor.

If county officers fail in their duty to apply for a proclamation of martial law, the governor may issue the proclamation without application from local civil authorities. In re Boyle, 6 Idaho 609, 57 P. 706 (1899), appeal dismissed, 178 U.S. 611, 20 S. Ct. 1029, 44 L. Ed. 2d 1215 (1900).

Review of Governor’s Actions.

The truth of recitals of alleged facts in a proclamation issued by the governor, proclaiming a certain county to be in a state of insurrection and rebellion, will not be inquired into or reviewed on application for a writ of habeas corpus. In re Boyle, 6 Idaho 609, 57 P. 706 (1899), appeal dismissed, 178 U.S. 611, 20 S. Ct. 1029, 44 L. Ed. 2d 1215 (1900).

Prior Laws.

Former§ 19-228, which comprised Cr. Prac. 1864, § 48; R.S., R.C., & C.L., § 7407; C.S., § 8652; I.C.A.,§ 19-228, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 3, effective April 1, 1972, in the same words as the section read prior to its repeal.

Compiler’s Notes.

The reference in this section to “the last section” is to § 46 of Cr. Prac. 1864, which appeared immediately preceding this section in the enacting legislation and which is now codified as§ 19-227.

Cross References.

State jurisdiction in Indian country,§ 67-5101 et seq.

Prior Laws.

Former§ 19-301, which comprised Cr. Prac. 1864, § 81; R.S., R.C., & C.L., § 7480; C.S., § 8685; I.C.A.,§ 19-301, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Child Custody.

Because the withholding of a child from his custodial parent in violation of a court order is no different than the withholding of support from a family in violation of a court order, the keeping or withholding occurs, for purposes of jurisdiction, where the defendant is required to return the child to the custodial parent. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Where the second and third elements of the crime of child custody interference, the keeping or withholding and the deprivation of the custodial rights, occurred in Idaho, under§§ 18-202, this section and 19-302, the state had jurisdiction over the crime. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Crimes Committed “Within the State”.

An Idaho court will have subject matter jurisdiction over a crime if any essential element of the crime, including the result, occurs within Idaho. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Given the language in§ 18-202 and in this section requiring that the crime must occur “in whole or in part” within the state, or that some “prosecutable act” must have been committed within the state, the language in§ 19-302 must be interpreted to mean that the result of the crime must be an essential element of the offense before the result can be construed to have been “consummated” within Idaho. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

So long as the prosecution proves the crime occurred within the state of Idaho, the precise location of the crime within any particular county in Idaho is not required as an element to establish that a crime has been committed by the accused; because venue did not need to be proved, because it was not an element of a crime, the district court did not err in denying defendant’s motion to dismiss for failure of the state to provide evidence of venue. State v. Amerson, 129 Idaho 395, 925 P.2d 399 (Ct. App. 1996), cert. denied, 521 U.S. 1123, 117 S. Ct. 2519, 138 L. Ed. 2d 1020 (1997).

Establishing Venue.

Venue is nonjurisdictional; proof of proper venue is satisfied if shown by a preponderance of the evidence. Direct or circumstantial evidence may be used to establish venue. State v. Wimer, 118 Idaho 732, 800 P.2d 128 (Ct. App. 1990).

Guilty Plea.

The question of which county should be the situs for prosecution of a crime occurring in this state is no longer a jurisdictional question. It is simply a question of venue, and a valid plea of guilty waives all nonjurisdictional defects and defenses, including any defense of improper venue; the exception to this rule being created by the entry of a written conditional guilty plea, meeting the requirements of Idaho R. Crim. P. 11(a)(2), which expressly reserves specific issues for review on appeal. State v. Magill, 119 Idaho 218, 804 P.2d 947 (Ct. App. 1991).

“Prosecutable Act” Defined.

Although the term “prosecutable act” contained in this section has not been defined by the legislature or by the Idaho Supreme Court, it would appear that, to be consistent with§ 18-202, “prosecutable act” means any essential element of the crime. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

C.J.S.

ALR.

Venue in homicide cases where crime is committed partly in one county and partly in another. 73 A.L.R.3d 907.

Construction and effect of statutes providing for venue of criminal case in either county where crime is committed partly in one county and partly in another. 73 A.L.R.3d 907; 100 A.L.R.3d 1174; 11 A.L.R.4th 704.

Where is embezzlement committed for purposes of territorial jurisdiction or venue. 80 A.L.R.3d 514.

Prior Laws.

Former§ 19-302, which comprised Cr. Prac. 1864, § 82; R.S., R.C., & C.L., § 7481; C.S., § 8686; I.C.A.,§ 19-302, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, in the same words as the section read prior to its repeal.

Effective Dates.

Section 14 of S.L. 1972, ch. 336 declared an emergency and provided that the act should take effect on and after April 1, 1972.

Child Custody.

Because the withholding of a child from her custodial parent in violation of a court order is no different than the withholding of support from a family in violation of a court order, the keeping or withholding occurs, for purposes of jurisdiction, where the defendant is required to return the child to the custodial parent. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Where the second and third elements of the crime of child custody interference, the keeping or withholding of the child and the deprivation of the custodial rights, occurred in Idaho, under§§ 18-202 and 19-301 and this section, the state had jurisdiction over the crime. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Child Support.

Where defendant was residing in Nevada at the times relevant to a charge of nonsupport of his minor children, the Idaho court had jurisdiction to try defendant. State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).

Criminal Acts.

An Idaho court will have subject matter jurisdiction over a crime if any essential element of the crime, including the result, occurs within Idaho. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Given the language in§ 18-202 and§ 19-301 requiring that the crime must occur “in whole or in part” within this state, or that some “prosecutable act” must have been committed within the state, the language in this section must be interpreted to mean that the result of the crime must be an essential element of the offense before the result can be construed to have been “consummated” within Idaho. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

This section applies only to the state’s jurisdiction to prosecute crimes and has no application to a civil action. Telford v. Smith County, 155 Idaho 497, 314 P.3d 179 (2013).

In General.

Venue of crime committed in part in Idaho and in part elsewhere is in any county where any part of the crime was committed. State v. Dunn, 60 Idaho 568, 94 P.2d 779 (1939).

Jurisdiction.

If conduct performed outside Idaho caused a criminal result or effect within Idaho and the result of the crime is an essential element of the offense, the result will be construed to have been consummated within Idaho. If an element of a crime is the failure to perform a duty, such failure constitutes an act for the purpose of jurisdiction and the state in which the act was to be performed has jurisdiction over the crime based upon such nonaction. State v. Villafuerte, 160 Idaho 377, 373 P.3d 695 (2016).

Prior Laws.

Former§ 19-303, which comprised Cr. Prac. 1864, § 83; R.S., R.C., & C.L., § 7482; C.S., § 8687; I.C.A.,§ 19-303, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Cross References.

Aircraft, jurisdiction of crimes committed by or against airman or passenger while in flight over this state,§ 21-207.

Prior Laws.

Former§ 19-304, which comprised Cr. Prac. 1864, § 84; R.S., R.C., & C.L., § 7483; C.S., § 8688; I.C.A.,§ 19-304, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

False Pretenses.

When crime of obtaining money under false pretenses originated in one county and was completed in another, venue is in either county. State v. Sheehan, 33 Idaho 553, 196 P. 532 (1921); State v. Stevens, 48 Idaho 335, 282 P. 93 (1929).

Where check was obtained in one county and cashed in another, the crime of obtaining money under false pretenses originated in the first county and was completed in the second. Venue of the prosecution was in either county. State v. Stevens, 48 Idaho 335, 282 P. 93 (1929).

Where defendant, acting as agent for a foreign corporation, executed a fictitious contract for the sale of wool whereby such corporation honored defendant’s sight draft, defendant was properly tried for obtaining money under false pretenses in the county where the draft was drawn and paid, and from which such contract was sent. State v. Dunn, 60 Idaho 568, 94 P.2d 779 (1939).

Forgery.

Where defendant was tried on information that he both forged and uttered a forged note, two acts which constitute the same crime in Idaho, and one of the acts, that of uttering the forged note, occurred in Bingham County, said county had jurisdiction over the entire crime. State v. May, 93 Idaho 343, 461 P.2d 126 (1969).

In General.

Venue of crime committed partly in Idaho and partly elsewhere is any county where any part of it was committed. State v. Dunn, 60 Idaho 568, 94 P.2d 779 (1939).

Prior Laws.

Former§ 19-305, which comprised Cr. Prac. 1864, § 85; R.S., R.C., & C.L., § 7484; C.S., § 8689; I.C.A.,§ 19-305; am. 1945, ch. 22, § 1, p. 29, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Effective Dates.

Section 2 of S.L. 1976, ch. 24, provided that the act should take effect on and after July 1, 1976.

Constitutionality.

This statute is constitutional and does not violateIdaho Const., Art. I, § 7. Kaseris v. Justice Court, 65 Idaho 347, 144 P.2d 469 (1943).

In General.

Court had jurisdiction of defendant charged with commission of offense in adjoining county but within 500 yards of boundary. State v. Koseris, 66 Idaho 449, 162 P.2d 172 (1945).

Cross References.

Venue of prosecutions for stealing rides on trains,§ 18-4619.

Prior Laws.

Former§ 19-306, which comprised Cr. Prac. 1864, § 86; R.S., R.C., & C.L., § 7485; C.S., § 8690; I.C.A.,§ 19-306, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Am. Jur. 2d.

§ 19-307. Kidnaping and similar offenses.

In any case where a person:

1. Seizes, confines, inveigles or kidnaps another, with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of this state, or in any way held to service or kept or detained against his will; or
2. Leads, takes, entices away or detains a child under the age of sixteen (16) years, with intent to keep or conceal it from its custodial parent, guardian or other person having lawful care or control thereof, or with intent to steal any article upon the person of the child; or
3. Abducts, entices or by force or fraud unlawfully takes or carries away another at or from a place without the state, or procures, advises, aids or abets such an abduction, enticing, taking or carrying away, and afterwards sends, brings, has or keeps such person, or causes him to be kept or secreted within this state; or
4. Seizes, confines, inveigles, leads, takes, entices away or kidnaps another against his will to extort money, property or any other things of value or obtain money, property or reward or any other thing of value for the return or disposition of such person; or
5. Inveigles or entices any unmarried person of previous chaste character, under the age of eighteen (18) years, into any house of ill-fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any other person; and every person who aids or assists in such inveiglement or enticement; or
6. Takes away any person under the age of eighteen (18) years from his or her father, mother, guardian, or other person having the legal charge of that person, without their consent, for the purpose of prostitution;

Venue is in the county in which the offense is committed, or out of which the person upon whom the offense was committed may, in the commission of the offense, have been brought, or in which an act was done by the defendant in instigating, procuring, promoting, or aiding in the commission of the offense, or in abetting the parties concerned therein.

History.

I.C.,§ 19-307, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 7, p. 727.

Prior Laws.

Former§ 19-307, which comprised Cr. Prac. 1864, § 87; R.S., R.C., & C.L., § 7486; C.S., § 8691; I.C.A.,§ 19-307, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Prior Laws.

Former§ 19-308, which comprised Cr. Prac. 1864, § 88; R.S., R.C., & C.L., § 7487; C.S., § 8692; I.C.A.,§ 19-308, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Prior Laws.

Former§ 19-309, which comprised Cr. Prac. 1864, § 89; R.S., R.C., & C.L., § 7488; C.S., § 8693; I.C.A.,§ 19-309, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Prior Laws.

Former§ 19-310, which comprised R.S., R.C., & C.L., § 7489; C.S., § 8694; I.C.A.,§ 19-310, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Prior Laws.

Former§ 19-311, which comprised R.S., R.C., & C.L., § 7490; C.S., § 8695; I.C.A.,§ 19-311, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Prior Laws.

Former§ 19-312, which comprised Cr. Prac. 1864, § 24; R.S., R.C., & C.L., § 7491; C.S., § 8696; I.C.A.,§ 19-312, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Death Without State.

Where injury which produced death was inflicted in one county and deceased was carried out of state in an effort to save his life, venue is properly laid in the county where injury was inflicted. State v. Corcoran, 7 Idaho 220, 61 P. 1034 (1900).

Evidence.

Where the state presented uncontradicted evidence at trial that the authorities discovered the victim’s decapitated body in Ada County some five miles from the Ada-Gem County line wrapped in a linen sheet and covered by a door showing that someone had placed the body there, this evidence unexplained, together with the evidence of other articles found at the scene, was sufficient to justify the jury in concluding that the homicide was committed in Ada County. State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979).

Prior Laws.

Former§ 19-313, which comprised Cr. Prac. 1864, § 90; R.S., R.C., & C.L., § 7492; C.S., § 8697; I.C.A.,§ 19-313, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Prior Laws.

Former§ 19-314, which comprised R.S., R.C., & C.L., § 7493; C.S., § 8698; I.C.A.,§ 19-314, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Compiler’s Notes.

The term “this code” near the end of this section probably is a reference to this title, being title 19, Idaho Code.

Prior Laws.

Former§ 19-315, which comprised Cr. Prac. 1864, § 91; R.S., R.C., & C.L., § 7494; C.S., § 8699; I.C.A.,§ 19-315, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Double Jeopardy.

In light of the purpose of the Major Crimes Act (MCA), 18 U.S.C.S. § 1153, and uniform authority, defendant’s argument that the district court should have applied Idaho’s double jeopardy law failed, because what Idaho courts might think about the legality of defendant’s federal prosecution was irrelevant. MCA’s incorporation of state law notwithstanding, the offense for which defendant was prosecuted was a federal offense, and whether defendant’s prosecution violated the Double Jeopardy Clause is a federal issue to be determined by reference to federal constitutional principles. United States v. Pluff, 253 F.3d 490 (9th Cir. 2001).

This section did not prohibit imposing illegal-drug tax on individual after his guilty plea to drug-possession charges in federal court, because this section applied to only subsequent criminal actions, not civil tax assessment. Garcia v. State Tax Comm’n, 136 Idaho 610, 38 P.3d 1266 (2002).

Ineffective Assistance of Counsel.

Police Chase.

In a grand theft by deception case, the district court did not err in summarily dismissing defendant’s claims that his trial counsel was ineffective for failing to file a motion to dismiss the charges, as such a motion would not have succeeded because neither of defendant’s prior federal or Utah prosecutions encompassed his Idaho actions and victims. Cook v. State, 145 Idaho 482, 180 P.3d 521 (Ct. App. 2008). Police Chase.

Police chase.

Defendant’s prosecution for eluding a peace officer in violation of§ 49-1404(2), following a conviction in Washington on the same charge, stemming from a high-speed chase across both states, was not precluded by this section, because the act that was the basis for the charge in Idaho was not the same act that gave rise to charges in Washington, and at no time did the two states share venue over an act which was charged as a public offense. The defendant acted in Idaho, followed by an action in Washington. State v. Madden, 147 Idaho 886, 216 P.3d 644 (Ct. App. 2009).

Prior Laws.

Former§ 19-316, which comprised Cr. Prac. 1864, § 92; R.S., R.C., & C.L., § 7495; C.S., § 8700; I.C.A.,§ 19-316, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 4, effective April 1, 1972, in the same words as the section read prior to its repeal.

Cross References.

Complaint, initiation and prosecution, Idaho R. Crim. P.. 3.

Prior Laws.

Former§ 19-401, which comprised Cr. Prac. 1864, § 93; R.S., R.C., & C.L., § 7500; C.S., § 8701; I.C.A.,§ 19-401, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 5, effective April 1, 1972, in the same words as the section read prior to its repeal.

Amendments.

The 2006 amendment, by ch. 39, rewrote the section which formerly read: “There is no limitation of time within which a prosecution for murder, voluntary manslaughter, or rape pursuant to section 18-6101 2., 3., 4., 5. or 7., or section 18-6108, Idaho Code, must be commenced. They may be commenced at any time after the death or rape of the person killed or raped.”

The 2010 amendment, by ch. 352, updated the section references in subsection (3) in light of the 2010 amendments of§§ 18-6101 and 18-6108.

The 2011 amendment, by ch. 27, substituted “section 18-6101(3) through (9)” for “section 18-6101(3) through (8)” in subsection (3).

The 2016 amendment, by ch. 296, rewrote subsection (3), which formerly read: “Rape pursuant to 18-6101(3) through (9), or section 18-6108(3) through (7), Idaho Code”.

Effective Dates.

Section 4 of S.L. 2001, ch. 142 declared an emergency and provided: “This act shall be in full force and effect on and after its passage and approval, and shall apply retroactively to any violation alleged to have been committed as to which the time for commencing prosecution has not expired.” Section 3 of S.L. 2006, ch. 39 declared an emergency. Approved March 13, 2006.

Am. Jur. 2d.

C.J.S.

ALR.

Necessity of alleging in indictment or information limitation-tolling facts. 52 A.L.R.3d 922.

When statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes. 77 A.L.R.3d 689.

When statute of limitation begins to run on charge of obstructing justice or of conspiring to do so. 77 A.L.R.3d 725.

Imprisonment of party to civil action as tolling statute of limitations. 77 A.L.R.3d 735.

Validity, Construction, and Application of State Statutes Eliminating, Extending, or Tolling Statute of Limitations for Sexual Offense When DNA Can Provide Identity of Alleged Perpetrator. 16 A.L.R.7th 7.

Prior Laws.

Former§ 19-402, which comprised Cr. Prac. 1864, § 94; R.S., R.C., & C.L., § 7501; C.S., § 8702; I.C.A.,§ 19-402; am. S.L. 1953, ch. 168, § 1, p. 262, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 5, effective April 1, 1972, in the same words as the section read prior to its repeal.

Amendments.

The 2006 amendment, by ch. 39, rewrote the section which formerly read: “Commencement of prosecutions for crimes against children and other felonies. (1) A prosecution for any felony other than murder, voluntary manslaughter, rape pursuant to section 18-6101 2., 3., 4., 5. or 7., or section 18-6108, Idaho Code, or any felony committed upon or against a minor child, or an act of terrorism as set forth in sections 18-8102, 18-8103, 18-3322, 18-3323 and 18-3324, Idaho Code, must be commenced by the filing of the complaint or the finding of an indictment within five (5) years after its commission. Except as provided in subsection (2) of this section, a prosecution for any felony committed upon or against a minor child must be commenced within five (5) years after the commission of the offense by the filing of the complaint or a finding of an indictment.

“(2) A prosecution under section 18-1506 or 18-1508, Idaho Code, must be commenced within five (5) years after the date the child reaches eighteen (18) years of age.

“(3) A prosecution under section 18-1506A, Idaho Code, must be commenced within three (3) years after the date of initial disclosure by the victim.

“(4) Notwithstanding any other provision of law, an indictment may be found, or an information instituted, at any time without limitation for a prosecution under section 18-8103, 18-3322, 18-3323 or 18-3324, Idaho Code.”

Legislative Intent.

Section 1 of S.L. 1989, ch. 270 read: “It is the intent of the legislature that extension of the provisions of section 19-402, Idaho Code, shall apply to all cases for which the statute of limitations has not yet expired. The legislature specifically declares that it is the public policy of the state that such an extension is not an ex post facto law.”

Effective Dates.

Section 4 of S.L. 2001, ch. 142 declared an emergency and provided: “This act shall be in full force and effect on and after its passage and approval, and shall apply retroactively to any violation alleged to have been committed as to which the time for commencing prosecution has not expired.”

Section 3 of S.L. 2006, ch. 39 declared an emergency. Approved March 13, 2006.

Burden of Proof.

Where the issue of the statute of limitations is raised, the state has the burden of proving that the offense was committed within the statutory period. State v. Steensland, 33 Idaho 529, 195 P. 1080 (1921).

Although the state was required to prove the tolling of the statute of limitation, and the level of proof was proof beyond a reasonable doubt, it was not necessary for the state to prove each event that was alleged to have tolled the statute. All that was required was that the state prove that the statute had been tolled for a sufficient length of time to permit prosecution within the time allowed by this section. State v. Amerson, 129 Idaho 395, 925 P.2d 399 (Ct. App. 1996), cert. denied, 521 U.S. 1123, 117 S. Ct. 2519, 138 L. Ed. 2d 1020 (1997).

Extension of Limitations Period.

A statute of limitations may be extended prior to the expiration of the original statute of limitations for a given cause of action, without being violative of the ex post facto law provisions of the United States and Idaho Constitutions. State v. O’Neill, 118 Idaho 244, 796 P.2d 121 (1990).

The application of§ 19-404 operated to extend the limitation period while defendant was out of state even though defendant was not out of state when he committed the offenses of lewd conduct with a minor. State v. Coleman, 128 Idaho 466, 915 P.2d 28 (Ct. App. 1996).

Postponement.

If the dismissal and renewal of the prosecution were to be regarded as postponement, it was for “good cause” and “sufficient reason” and was therefore authorized, since the absence of a material and essential witness is “good cause.” State v. Goodmiller, 86 Idaho 233, 386 P.2d 365 (1963).

Res Judicata.

The dismissal of the information and release of defendant’s bail was not a bar to another prosecution, commenced within three [now five] years after the commission of the offense. State v. Goodmiller, 86 Idaho 233, 386 P.2d 365 (1963).

Speedy Trial.

Where defendant was tried at the first term commencing after the filing of the new information, his constitutional right was accorded to him for a speedy trial. State v. Goodmiller, 86 Idaho 233, 386 P.2d 365 (1963).

Where mere defect in form of warrant of commitment for alleged first degree burglary resulted in discharge of defendant upon habeas corpus order, subsequent prosecution following rearrest and commitment, for the same crime, less than a month after writ was made permanent, was not improper and no denial of defendant’s right to speedy trial. State v. Stewart, 87 Idaho 210, 392 P.2d 180 (1964).

Statute of Limitations.

Where the crime occurred no later than 1987 when defendant came into possession of truck with knowledge that it was stolen and with the intent to deprive the owner thereof, the statute of limitations had run by 1991 [now 5-year rule] when the information against defendant was filed. State v. Barnes, 124 Idaho 379, 859 P.2d 1387 (1993), overruled on other grounds, State v. Maidwell, 137 Idaho 424, 50 P.3d 439 (2002).

Time of Filing.

Where an alleged forgery occurred on February 3, 1973 and the complaint was filed on January 27, 1976, the prosecution was commenced prior to the running of the statute of limitations. Clark v. Meehl, 98 Idaho 641, 570 P.2d 1331 (1977) (now 5-year rule).

ALR.

§ 19-403. Misdemeanors.

1. Except as otherwise provided in this section, a prosecution for any misdemeanor must be commenced by the filing of the complaint or the finding of an indictment within one (1) year after its commission.
2. A prosecution for failure to report or failure to cause to be reported the abuse, abandonment, or neglect of a child as provided for in section 16-1605, Idaho Code, must be commenced by the filing of the complaint or the finding of an indictment within four (4) years after its commission.
3. A prosecution for misuse of funds as provided for in section 18-5702(1), Idaho Code, must be commenced by the filing of the complaint or the finding of an indictment within five (5) years after its commission.
4. A prosecution for a misdemeanor that was dismissed pursuant to section 19-3509, Idaho Code, must be refiled no later than two (2) years after its dismissal.

History.

I.C.,§ 19-403, as added by 1972, ch. 336, § 5, p. 844; am. 2007, ch. 124, § 1, p. 374; am. 2008, ch. 56, § 5, p. 146; am. 2019, ch. 305, § 5, p. 899.

Prior Laws.

Former§ 19-403, which comprised Cr. Prac. 1864, § 95; R.S., R.C., & C.L., § 7502; C.S., § 8703; I.C.A.,§ 19-403; am. S.L. 1953, ch. 168, § 2, p. 262, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 5, effective April 1, 1972, in the same words as the section read prior to its repeal.

Amendments.

The 2007 amendment, by ch. 124, added the subsection (1) designation and the exception therein; and added subsection (2).

The 2008 amendment, by ch. 56, in subsection (1), substituted “subsections (2) and (3)” for “subsection (2)”; and added subsection (3).

The 2019 amendment, by ch. 305, substituted “otherwise provided in this section” for “provided in subsections (2) and (3) of this section” near the beginning of subsection (1); and added subsection (4).

Effective Dates.

Section 6 of S.L. 2008, ch. 56 declared an emergency. Approved March 3, 2008.

Construction.

By limiting time for prosecution, state has deprived itself of right to prosecute in all cases coming within terms of statute, and time within which offense is committed, thus, becomes jurisdictional fact in all cases subject to limitation. State v. Steensland, 33 Idaho 529, 195 P. 1080 (1921).

Statutes of limitation in criminal cases differ from civil cases in that latter are statutes of repose while in criminal cases they create bar to prosecution. State v. Steensland, 33 Idaho 529, 195 P. 1080 (1921).

Defendant Absent from State.

If the state relied upon the absence of the defendant from the state to toll the statute, the fact of such absence must be alleged in the indictment or information for in such a case absence from the state was a jurisdictional fact. When such fact was denied and put in issue by a plea of not guilty, upon trial such fact is tried with other issues and upon its determination depends the jurisdiction of the court. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959).

Pleading as Defense.

Where information charges that misdemeanor was committed more than year before filing thereof, it is subject to demurrer. State v. Steensland, 33 Idaho 529, 195 P. 1080 (1921).

Plea of not guilty presents as issue of fact question of the bar of the statute. State v. Steensland, 33 Idaho 529, 195 P. 1080 (1921); State v. Bilboa, 38 Idaho 92, 213 P. 1025, 222 P. 785 (1923).

Time Included in Period of Limitation.

Where information is quashed on appeal, or proceedings on an information are set aside or reversed on appeal, time during which appeal was pending should not be included within the period of limitations. State v. Bilboa, 38 Idaho 92, 213 P. 1025, 222 P. 785 (1923).

Where demurrer on ground of duplicity is sustained, new information is not a continuation of prosecution instituted under original information. State v. Bilboa, 38 Idaho 92, 213 P. 1025, 222 P. 785 (1923).

Magistrate court’s reference to the statute of limitations for criminal contempt did not constitute an abuse of discretion regarding its decision to award a wife attorney fees in a husband’s contempt proceeding. Absent legislative action, a criminal contempt sanction cannot be imposed for contempt unless the contempt proceedings are initiated within one year of the commission of the contempt. Charney v. Charney, 159 Idaho 62, 356 P.3d 355 (2015).

ALR.

§ 19-404. Absence of defendant from state.

If, when the offense is committed, the defendant is out of the state, the indictment may be found within the term herein limited after his coming within the state, and no time during which the defendant is not an inhabitant of, or usually resident within, the state is part of the limitation.

History.

I.C.,§ 19-404, as added by 1972, ch. 336, § 5, p. 844.

Prior Laws.

Former§ 19-404, which comprised Cr. Prac. 1864, § 96; R.S., R.C., & C.L., § 7503; C.S., § 8704; I.C.A.,§ 19-404, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 5, effective April 1, 1972, in the same words as the section read prior to its repeal.

Burden of Proof.

Exception contained herein is not for benefit of accused but for benefit of state, and it is incumbent upon state to show that it obtains. State v. Steensland, 33 Idaho 529, 195 P. 1080 (1921); State v. Bilboa, 38 Idaho 92, 213 P. 1025, 222 P. 785 (1923).

Although the state was required to prove the tolling of the statute of limitation, and the level of proof was proof beyond a reasonable doubt, it was not necessary for the state to prove each event that was alleged to have tolled the statute. All that was required was that the state prove that the statute had been tolled for a sufficient length of time to permit prosecution within the time allowed by§ 19-402. State v. Amerson, 129 Idaho 395, 925 P.2d 399 (Ct. App. 1996), cert. denied, 521 U.S. 1123, 117 S. Ct. 2519, 138 L. Ed. 2d 1020 (1997).

Extension of Limitations Period.

The application of this section operated to extend the limitation period while defendant was out of state even though defendant was not out of state when he committed the offenses of lewd conduct with a minor. State v. Coleman, 128 Idaho 466, 915 P.2d 28 (Ct. App. 1996).

Cross References.

Application to magistrates, Idaho Infraction Rule 1.

Complaint, information or indictment need not negate statutory defenses to certain offenses,§ 19-1433.

Complaint, initiation and prosecution, Idaho R. Crim. P. 3.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Complaint and Information.

It is clear that the words “complaint” and “information” are used to represent names of pleadings by which criminal actions are instituted. If the words “complaint” and “information” are not meant to apply to the same thing, it may be said that “ complaint” is name given to a pleading filed by any person other than prosecutor himself and that the same pleading is called “information” when the pleading is filed by public prosecutor. State v. Stafford, 26 Idaho 381, 143 P. 528 (1914).

The state need not allege in the information that the complaint for acting as a real estate agent when unlicensed was filed within one year after the commission of the alleged offense since the docket certified by the probate judge acting as committing magistrate was filed in the district court and such record showed the date the complaint was filed and warrant issued and contained a copy of the complaint, warrant of arrest and return thereon. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959).

Complaint As Deposition.

In cases where no other depositions of witnesses are taken by the magistrate, the criminal complaint serves the dual purpose of commencing the prosecution and serving as a deposition upon which the warrant is issued. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959); In re Martz, 83 Idaho 72, 357 P.2d 940 (1960).

Complaint by Person Other Than Prosecutor.

Idaho’s law provides that a warrant for arrest may be issued upon a complaint by a private citizen if the magistrate, after investigation, shall certify that the offense has been committed. Howard v. Felton, 85 Idaho 286, 379 P.2d 414 (1963).

Where a complaint alleging forgery was filed by an investigator for the attorney general’s office, rather than by the county prosecutor, such complaint was competent to commence a criminal proceeding and confer jurisdiction on the magistrate, since persons other than a prosecutor can file a complaint regardless of whether they act as private citizens or on behalf of a public officer. Clark v. Meehl, 98 Idaho 641, 570 P.2d 1331 (1977).

Idaho’s law provides that a warrant for arrest may be issued upon a complaint filed upon information by a private citizen if the magistrate, after investigation, is satisfied that the offense has been committed. Upon proper proceedings before a magistrate, someone other than a prosecutor may file a complaint; therefore, it is immaterial whether that person is acting as a private citizen or for or on behalf of a public officer. State v. Murphy, 99 Idaho 511, 584 P.2d 1236 (1978).

Coroner’s Inquisition.

Under the laws of this state, the inquisition of a coroner is not a sufficient basis for an information by the prosecutor, or to take the place of a complaint prescribed by this section. In re Sly, 9 Idaho 779, 76 P. 766 (1904).

Duty of Arresting Officer.

Arresting officer has the right and the duty to determine the nature of the offense with which accused is to be charged. It is within his implied powers to carry into effect the statutory power to make the arrest. Cornell v. Harris, 60 Idaho 87, 88 P.2d 498 (1939).

Name of Defendant.

Defendant may be prosecuted at a preliminary examination under his own or a fictitious name, and same does not render examination void. If his true name is ascertained, it should be inserted. State v. Yturaspe, 22 Idaho 360, 125 P. 802 (1912).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 19-502. Definition of magistrate.

A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.

History.

Cr. Prac. 1864, § 100, p. 226; R.S., R.C., & C.L., § 7510; C.S., § 8707; I.C.A.,§ 19-502.

Amendments.

The 2012 amendment, by ch. 20, added subsection (2) and redesignated former subsections (2) and (3) as present subsections (3) and (4).

Effective Dates.

Section 2 of S.L. 1972, ch. 35 declared an emergency. Approved February 28, 1972.

Coroner Not Magistrate.

A coroner is not a magistrate and the finding of his inquest is not sufficient basis for information for homicide. In re Sly, 9 Idaho 779, 76 P. 766 (1904).

Jurisdiction of Magistrates.

Magistrates, as such, are given a special and fixed jurisdiction by the constitution and statutes. State v. Raaf, 16 Idaho 411, 101 P. 747 (1909).

Cross References.

Complaint, initiation and prosecution, Idaho R. Crim. P. 3.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Complaint As Deposition.

In cases where no other depositions of witnesses are taken by the magistrate, the criminal complaint serves the dual purpose of commencing the prosecution and serving as a deposition upon which the warrant is issued. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959); In re Martz, 83 Idaho 72, 357 P.2d 940 (1960).

Sufficiency of Information.

Cited

The state need not allege in the information that the complaint for acting as a real estate agent when unlicensed was filed within one year after the commission of the alleged offense, since the docket certified by the probate judge acting as committing magistrate was filed in the district court and such record showed the date the complaint was filed and warrant issued and contained a copy of the complaint, warrant of arrest and return thereon. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959). Cited State v. Braithwaite, 3 Idaho 119, 27 P. 731 (1891); State v. Farris, 5 Idaho 666, 51 P. 772 (1897); State v. Hendricks, 80 Idaho 344, 330 P.2d 334 (1958); Clark v. Meehl, 98 Idaho 641, 570 P.2d 1331 (1977).

ALR.

§ 19-505. Contents of complaint.

The complaint must set forth the facts stated by the complaining witness, tending to establish the commission of the public offense and the guilt of the defendant.

History.

Cr. Prac. 1864, § 103, p. 226; R.S., R.C., & C.L., § 7517; C.S., § 8710; I.C.A.,§ 19-505; am. 1969, ch. 79, § 3, p. 230.

Cross References.

Complaint, information or indictment need not negate statutory defenses to certain offenses,§ 19-1433.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Complaint As Deposition.

In cases where no other depositions of witnesses are taken by the magistrate, the criminal complaints serve the dual purpose of commencing the prosecution and serving as depositions upon which the warrant is issued. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959); In re Martz, 83 Idaho 72, 357 P.2d 940 (1960).

Establishment of Probable Cause.

Where an offense is one which allegedly took place in Idaho, it has ever been the law that an arrest warrant will only be issued by a magistrate upon his being satisfied that there is probable cause to believe that the named defendant has committed the offense complained of. Struve v. Wilcox, 99 Idaho 205, 579 P.2d 1188 (1978), appeal dismissed and cert. denied, 439 U.S. 1123, 99 S. Ct. 1037, 59 L. Ed. 2d 84 (1979).

Informal Charge.

No formal or detailed charge or description of offense is necessary in complaint before magistrate. All that is required is a general description or designation of offense, so that defendant may be given a fair opportunity to know, by a proffered preliminary examination, the general character and outline of offense for which he is to have an examination. State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909); State v. Woodward, 41 Idaho 353, 238 P. 525 (1925).

Probable Cause Hearing.

Considering that a person arrested either with or without a warrant, as a fugitive from the justice of another state, may be detained indefinitely under the provisions of the prerequisition detention statutes, and that such a person is not a candidate for either a preliminary hearing or for a speedy trial in Idaho, such a person is entitled to the safeguard of a probable cause hearing. Struve v. Wilcox, 99 Idaho 205, 579 P.2d 1188 (1978), appeal dismissed and cert. denied, 439 U.S. 1123, 99 S. Ct. 1037, 59 L. Ed. 2d 84 (1979).

Sufficiency of Information.

The state need not allege in the information that the complaint for acting as a real estate agent when unlicensed was filed within one year after the commission of the alleged offense since the docket certified by the probate judge acting as committing magistrate was filed in the district court, and such record showed the date the complaint was filed and warrant issued and contained a copy of the complaint, warrant of arrest and return thereon. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959).

Cross References.

Warrant, summons, determination of probable cause, Idaho R. Crim. P. 4.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Complaint As Deposition.

In cases where no other deposition of witnesses are taken by the magistrate, the criminal complaint serves the dual purpose of commencing the prosecution and serving as a deposition upon which a warrant is issued. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959); In re Martz, 83 Idaho 72, 357 P.2d 940 (1960).

Complaint by Private Citizen.

A warrant for arrest may issue upon a complaint filed upon information by a private citizen if the magistrate, after investigation, is satisfied that an offense has been committed. Clark v. Meehl, 98 Idaho 641, 570 P.2d 1331 (1977).

Full Disclosure.

Full disclosure to a magistrate is a defense to an action for malicious prosecution. The defense of full disclosure of the facts to a magistrate who issues the warrant is comparable to the defense of full disclosure to the prosecuting attorney, inasmuch as the statute provides for issuance to a magistrate of a warrant upon information given by a private citizen. Howard v. Felton, 85 Idaho 286, 379 P.2d 414 (1963).

Probable Cause.

Where defendant made full disclosure to the magistrate who issued a warrant on the advice of the prosecuting attorney, there was no showing of a lack of probable cause for such issuance, such as was necessary to establish malicious prosecution. Howard v. Felton, 85 Idaho 286, 379 P.2d 414 (1963).

Where an offense is one which allegedly took place in Idaho, an arrest warrant will only be issued by a magistrate upon his being satisfied that there is probable cause to believe that the named defendant has committed the offense complained of. Struve v. Wilcox, 99 Idaho 205, 579 P.2d 1188 (1978), appeal dismissed and cert. denied, 439 U.S. 1123, 99 S. Ct. 1037, 59 L. Ed. 2d 84 (1979).

Considering that a person arrested either with or without a warrant, as a fugitive from the justice of another state, may be detained indefinitely under the provisions of the prerequisition detention statutes, and that such a person is not a candidate for either a preliminary hearing or for a speedy trial in Idaho, such a person is entitled to the safeguard of a probable cause hearing. Struve v. Wilcox, 99 Idaho 205, 579 P.2d 1188 (1978), appeal dismissed and cert. denied, 439 U.S. 1123, 99 S. Ct. 1037, 59 L. Ed. 2d 84 (1979).

Sufficiency of Complaint or Information.

No formal or detailed charge or description of an offense is necessary in complaint before magistrate. All that is required is general description or designation of an offense, so that defendant may be given fair opportunity to know, by proffered preliminary examination, general character and outline of offense for which he is to have examination. State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909); State v. Woodward, 41 Idaho 353, 238 P. 525 (1925).

The state need not allege in the information that the complaint for acting as a real estate agent when unlicensed was filed within one year after the commission of the alleged offense since the docket certified by the probate judge, acting as committing magistrate, was filed in the district court, and such record showed the date the complaint was filed and warrant issued and contained a copy of the complaint, warrant of arrest and return thereon. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Idaho state police,§ 67-2901 et seq.

Extraterritorial authority of peace officers,§ 67-2337.

Application.

Neither this section nor subdivision (d) of§ 19-5101 apply to the relevant terms enumerated in subdivision (b) of§ 18-4003. State v. Pratt, 125 Idaho 546, 873 P.2d 800 (1993).

Policemen.

Policemen are peace officers engaged in exercising governmental function of the city, hence they are employees of the city, not employees of chief of police. Klam v. Boehm, 72 Idaho 259, 240 P.2d 484 (1952).

County Sheriff’s Duties.

It is the duty of the county sheriff to attend all courts located within his or her county.OAG 87-3.

The staff personnel provided by the county or city are not given specific statutory authorization to perform any of the functions of court attendants, nor are they recognized as peace officers; thus, they are not competent to perform the full range of security functions of court attendants.OAG 87-3.

Peace Officers.

A court cannot simply appoint someone and call him or her a “marshal,” thereby conferring peace officer status and enabling the person to carry a concealed weapon, serve arrest warrants, take custody of prisoners and secure courtrooms; however, if the sheriff cooperates with the court, a marshal could be authorized to perform all the sheriff’s court attendance duties, after being deputized by the sheriff.OAG 87-3.

Cross References.

Idaho peace officer standards and training council,§ 19-5101 et seq.

Amendments.

The 2011 amendment, by ch. 28, in the second sentence, deleted “classified” following “All other” near the beginning and inserted “or when present with and at the request of a local, state or federal law enforcement officer” at the end.

Amendments.

The 2012 amendment, by ch. 20, deleted “justice of the Supreme Court, judge of a District Court, probate judge, justice of the peace, or any other” preceding “magistrate” near the beginning of the section.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section, which comprised Cr. Prac. 1864, § 110; am. 1883, p. 7; reen. R.S., R.C., & C.L., § 7524; C.S., § 8718; I.C.A.,§ 19-513, was repealed by S.L. 1951, ch. 244, § 3, p. 516.

Cross References.

County stenographers, employment, taking of preliminary examinations,§ 31-2609.

Commitment on indictable offense upon plea of guilty to lower offense,§ 19-3905.

Initial appearance before magistrate, Idaho R. Crim. P. 5.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Effective Dates.

Section 4 of S.L. 1951, ch. 244 declared an emergency. Approved March 20, 1951.

Authority of Magistrate.

A magistrate has no authority or discretion to place conditions on refiling a criminal complaint dismissed at a preliminary hearing. State v. Diaz, 117 Idaho 392, 788 P.2d 207 (1990).

False Imprisonment.

Where circumstances justify reasonable delay, officer is not guilty of false imprisonment for failing to take prisoner promptly before magistrate. Madsen v. Hutchison, 49 Idaho 358, 290 P. 208 (1930).

Venue of Examination.

One accused of crime can not insist upon examination before a magistrate of precinct in which the crime is charged to have been committed, but prosecuting attorney may designate precinct where, and magistrate before whom, the examination will be had. State v. Griffin, 4 Idaho 462, 40 P. 58 (1895).

Person arrested for crime is entitled to be taken for his preliminary examination before magistrate who issued warrant of arrest, unless there is some reason to the contrary that can be made to appear. State v. Andrus, 29 Idaho 1, 156 P. 421 (1916) (distinguished from State v. Griffin ).

ALR.

§ 19-515. No unnecessary delay — Attorney may visit defendant.

The defendant must in all cases be taken before the magistrate without unnecessary delay, and any attorney at law entitled to practice in courts of record of the state of Idaho may, at the request of the prisoner after such arrest, visit the person so arrested.

History.

Cr. Prac. 1864, § 116, p. 228; R.S., R.C., & C.L., § 7529; C.S., § 8720; I.C.A.,§ 19-515.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Consultation with Attorney.

A person arrested is entitled to consult with an attorney if requested. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Delay Justified.

Where circumstances justify reasonable delay, officer is not guilty of false imprisonment for failing to take prisoner promptly before magistrate. Madsen v. Hutchison, 49 Idaho 358, 290 P. 208 (1930).

Intoxication of arrested person justifies delay in arraignment before a magistrate, but, if evidence as to intoxication is in conflict, intoxication is for the jury. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Investigatory Proceedings.

Unnecessary Delay.

Defendant had no right to counsel before deciding to submit to a blood alcohol concentration test. This section provides a person who is arrested with the right to visit with an attorney upon request; however, nothing in its language implies that the arrested person’s right to counsel should be extended beyond any safeguard provided under the sixth amendment securing an accused’s right to counsel during critical stages of a criminal proceeding; this protection does not extend to investigatory proceedings. McNeely v. State, 119 Idaho 182, 804 P.2d 911 (Ct. App. 1990). Unnecessary Delay.

Defendant could not complain of unnecessary delay when officer did not arrive in town until 5:30 in the evening and took defendant before the magistrate the following morning, especially where defendant waived preliminary examination. State v. Behler, 65 Idaho 464, 146 P.2d 338 (1944), overruled on other grounds, State v. White, 93 Idaho 153, 456 P.2d 797 (1969).

Issue of reasonable time for taking arrested person before a magistrate is for the court, if illegality of detention is clearly established; but, if evidence is in conflict, it is an issue for the jury to determine. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

An arresting officer is liable for unreasonable delay in taking arrested person to magistrate, but is not liable for confinement after arrested person is brought before a magistrate. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Complaint as Deposition.

In cases where no other depositions of witnesses are taken by the magistrate, the criminal complaint serves the dual purpose of commencing the prosecution and serving as a deposition on which the warrant is issued. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959); In re Martz, 83 Idaho 72, 357 P.2d 940 (1960).

Sufficiency of Information.

The state need not allege in the information that the complaint for acting as a real estate agent when unlicensed was filed within one year after the commission of the alleged offense since the docket certified by the probate judge acting as committing magistrate was filed in the district court, and such record showed the date the complaint was filed and the warrant was issued and contained a copy of the complaint, warrant of arrest and return thereon. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Failure to Request Notice.

Absent a specific request by the prosecutor, defendant was not required to give notice of an alibi defense and the trial judge erred in ruling that no alibi testimony would be allowed. State v. Mata, 106 Idaho 184, 677 P.2d 497 (Ct. App. 1984).

New Trial.

Written Notice Required.

District court’s frustration with defendant’s persistently untimely and defective discovery responses was understandable, but the exclusion of all of defendant’s alibi witnesses was not necessary in order to rectify an address error for an alibi witness where the state was able to interview all of the witnesses; thus, the district court exceeded the bounds of its discretion by imposing the extreme sanction of witness exclusion. State v. Albert, 138 Idaho 284, 62 P.3d 208 (Ct. App. 2002). Written Notice Required.

Written notice required.

Written notice of an alibi is required under this section. Medina v. State, 132 Idaho 722, 979 P.2d 124 (Ct. App. 1999).

Cross References.

Illegal arrest or seizure,§ 18-703.

Warrant, summons, determination of probable cause, Idaho R. Crim. P. 4.

Citizen’s Arrest.

Where, when defendant voluntarily got out of his car to answer an inquiry by a private security guard, he was unsteady on his feet, had an odor of alcohol on his breath, and exhibited slurred speech, and where, upon observing defendant in this condition, the security guard took defendant’s keys and called the police to further deal with the situation, the security guard did not restrain defendant or take him into custody; although it was his intention to make a citizen’s arrest, no such arrest was effectuated by the guard as, inter alia, defendant was free to leave the scene on foot. State v. Thomas, 116 Idaho 848, 780 P.2d 599 (Ct. App. 1989).

Placing in Police Custody.

The critical act in effecting an arrest is placing the person in police custody. State v. Hobson, 95 Idaho 920, 523 P.2d 523 (1974).

Where police officer, on the basis of an anonymous phone call, stopped defendant and asked to see his driver’s license, but did not evidence any intent to place defendant in custody at that time, even though a number of other officers were present, there was no arrest as there was no action or intent evidencing police custody. State v. Hobson, 95 Idaho 920, 523 P.2d 523 (1974).

An arrest occurs only after there has been some action or intent evidencing police custody. State v. Post, 98 Idaho 834, 573 P.2d 153 (1978), overruled on other grounds, State v. Bottelson, 102 Idaho 90, 625 P.2d 1093 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

ALR.

Modern status of rules as to right to forcefully resist illegal arrest. 44 A.L.R.3d 1078.

Right to resist excessive force used in accomplishing lawful arrest. 77 A.L.R.3d 281.

Right of peace officer to use deadly force in attempting to arrest fleeing felon. 83 A.L.R.3d 174.

Peace officer’s liability for death or personal injuries caused by intentional force in arresting misdemeanant. 83 A.L.R.3d 238.

Citizen’s Arrest.

When defendant voluntarily got out of his car to answer an inquiry by a private security guard, he was unsteady on his feet, had an odor of alcohol on his breath, and exhibited slurred speech, and, upon observing defendant in this condition, the security guard took defendant’s keys and called the police to further deal with the situation, the security guard did not restrain defendant or take him into custody. Although it was his intention to make a citizen’s arrest, no such arrest was effectuated by the guard as, inter alia, defendant was free to leave the scene on foot. State v. Thomas, 116 Idaho 848, 780 P.2d 599 (Ct. App. 1989).

Communication of Officer’s Intent.

If an arrest is made on warrant charging party with commission of offense outside presence of arresting officer and not immediately after commission of offense, the officer must inform the arrested party of his intention to make arrest, cause of arrest, and his authority to make arrest, if so requested by arrested party. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Evidence.

False Arrest.

Jury was justified in finding police officer guilty of false arrest even though he had a warrant for arrest of plaintiff on charge of assault and battery where evidence showed that officer did not show the warrant, or advise her of his reason for making arrest even though she requested same, and upon her refusal to submit voluntarily proceeded to use force in making arrest. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953). False Arrest.

False arrest.

In action for damages for false arrest, it was not error for trial court to strike from evidence the criminal complaint issued out of police court, if action was not based on absence of authority to make arrest, but the manner in which the arrest was made. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Placing in Police Custody.

The critical act in effecting an arrest is placing the person in police custody. State v. Hobson, 95 Idaho 920, 523 P.2d 523 (1974).

Unnecessary Force.

An officer in making an arrest, though legal, is guilty of assault and battery, if he uses unnecessary and excessive force. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Waiver.

One who pleads guilty to criminal charge following unlawful arrest does not waive right to sue arresting officer for damages for unlawful arrest. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Cross References.

Arrest with certified copy of warrant,§ 19-624.

Coroner to perform duties of sheriff when sheriff disqualified due to conflict of interest,§ 31-2806.

Duty of sheriff to make arrests,§ 31-2202.

Fire wardens, authority to make arrests,§ 38-133.

Liquor law inspectors and investigators, power to serve and execute warrants of arrest,§ 23-807.

Sheriff’s fee for executing order of arrest,§ 31-3203.

Amendments.

This section was amended by two 1997 acts which appear to be compatible and have been compiled together.

The 1997 amendment, by ch. 89, § 1 in paragraph 6., deleted “at the scene of a domestic disturbance there is reasonable cause to believe, based upon physical evidence observed by the officer or statements made in the presence of the officer” following “When”, deleted “such” following “to a report of a commission of” and inserted “there is probable cause to believe” preceding “, that a person arrested”. The 1997 amendment, by ch. 314, § 4, in paragraph 6., added “, or 18-1920 (violation of a no contract order).” at the end of the paragraph.

The 2019 amendment, by ch. 207, rewrote subsection 6., which formerly read: “When upon immediate response to a report of a commission of a crime there is probable cause to believe, that the person arrested has committed a violation of section 18-902 (assault), 18-903 (battery), 18-918 (domestic assault or battery), 18-7905 (first degree stalking), 18-7906 (second degree stalking), 39-6312 (violation of a protection order), or 18-920 (violation of a no contact order).”

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 2 of S.L. 1988, ch. 271 declared an emergency. Approved March 31, 1988.

Appellate Review.

Standard of appellate review of arrest should be whether, at the time of the arrest, the police had possession of information which, viewed in light of practical considerations of everyday life, would lead an ordinarily prudent and cautious officer to believe — or to entertain an honest and strong suspicion — that defendant had committed a felony: the critical variables in applying this test are the point in time when the arrest occurred and the quantum of information possessed by the police at that point. The sufficiency of information must be tested at the time of the arrest itself. State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct. App. 1984).

Application.

This section has no application to the question of the legitimacy of a stop in a drunk driving case, where the only question before the district is on a suppression motion. Any assertion by the defendant that probable cause is required to support the investigative stop is a misstatement of the law. State v. Knight, 128 Idaho 862, 920 P.2d 78 (Ct. App. 1996).

Citizen’s Arrest.

Where, when defendant voluntarily got out of his car to answer an inquiry by a private security guard, he was unsteady on his feet, had an odor of alcohol on his breath, and exhibited slurred speech, and where, upon observing defendant in this condition, the security guard took defendant’s keys and called the police to further deal with the situation, the security guard did not restrain defendant or take him into custody. Although it was his intention to make a citizen’s arrest, no such arrest was effectuated by the guard as, inter alia, defendant was free to leave the scene on foot. State v. Thomas, 116 Idaho 848, 780 P.2d 599 (Ct. App. 1989).

Concealed Weapons.

Where police officer discovered defendant had a pistol concealed on his person when officer started to search for a black jack which defendant had admitted carrying, defendant was guilty of offense of carrying concealed weapon committed in presence of officer, so as to authorize arrest without warrant. State v. Hart, 66 Idaho 217, 157 P.2d 72 (1945).

Constitutionality.

The provisions of subsection (6), allowing the warrantless arrest of a person when there is reasonable cause to believe the person has committed a misdemeanor assault or battery outside the presence of a peace officer, e.g., in a domestic violence situation, violate the rights guaranteed by Idaho Const. art. I, § 17. State v. Clarke, — Idaho —, 446 P.3d 451 (2019).

Construction.

This section must be construed in pari materia with§ 19-4804 (now§ 67-2905) where arrest is made by state highway patrolman. Smith v. Lott, 73 Idaho 205, 249 P.2d 803 (1952).

Domestic Disturbance Arrest.

Section 49-1407, which provides the authority for arrests in cases of traffic violations, narrows the broader arrest authority contained in this section. Tanner v. Heise, 879 F.2d 572 (9th Cir. 1989). Domestic Disturbance Arrest.

Domestic disturbance arrest.

The fact that officers cited defendant for domestic battery, addressed under subsection 6, did not render the other subsections of this arrest statute facially inapplicable and did not require that his arrest must have been made at the scene of the domestic disturbance; objective assessment of the facts gave deputies reasonable cause for warrantless felony arrest under subsection (3) of this section (decided prior to amendment by ch. 89, § 1). State v. Julian, 129 Idaho 133, 922 P.2d 1059 (1996).

Evidence.

Where police took knife away from defendant accused of robbery after victim gave details of crime and description of defendant, knife was properly admitted into evidence. State v. Robinson, 71 Idaho 290, 230 P.2d 693 (1951).

In action for damages for false arrest, it was not error for trial court to strike from evidence the criminal complaint issued out of police court, if action was not based on absence of authority to make arrest, but the manner in which the arrest was made. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Habeas Corpus.

Habeas corpus is not available to challenge the legality of an arrest or the admissibility of illegally seized evidence. O’Neill v. State, 92 Idaho 885, 452 P.2d 989 (1969).

Hot Pursuit.

Numerous Idaho cases have listed “hot pursuit” among the exceptions to the warrant requirement; however, many of these listings have been boilerplate recitals. Where hot pursuit has played a part in a decision, it usually has been qualified by a reference to the danger posed by the offender, to the potential destruction of evidence, or to the possibility of escape. State v. Wren, 115 Idaho 618, 768 P.2d 1351 (Ct. App. 1989).

A temporarily opened attached garage is a place in which a person would have a reasonable expectation of privacy. Nevertheless, police officers, who activated their overhead lights as defendant pulled into his driveway, and then followed him into his garage, had probable cause to arrest defendant for battery based on victim’s specific identification of him as her attacker and their observation that he and his vehicle matched the description provided by the victim. State v. Jenkins, 143 Idaho 918, 155 P.3d 1157 (2007).

Illegal Arrest.

Instruction that one illegally arrested may initiate and has right to use force to free himself is properly refused as such force is only justified when necessary. State v. Autheman, 47 Idaho 328, 274 P. 805 (1929).

Jury was justified in finding police officer guilty of false arrest even though he had a warrant for arrest of plaintiff on charge of assault and battery where evidence showed that officer did not show the warrant, or advise her of his reason for making arrest even though she requested same, and upon her refusal to submit voluntarily proceeded to use force in making arrest. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953). Where plaintiff was not informed of defendant’s intention to arrest her, of the cause of the arrest, nor defendant’s authority to make it, and was not taken without delay to the nearest and most accessible magistrate in the county where the arrest was made and while the offense was allegedly committed in defendant’s presence he did not make the arrest until several hours thereafter nor did he obtain a warrant during the interval and where the court before which plaintiff was eventually taken had no jurisdiction, plaintiff’s civil rights under state law were violated. Antelope v. George, 211 F. Supp. 657 (D. Idaho 1962).

Investigative Stop.

Any investigative stop necessarily involves a brief period of detention and a suspect cannot defeat the purpose of a stop simply by walking away from it; neither is an investigative stop necessarily converted to an arrest if the police draw weapons, since the police are entitled to take reasonable precautions for their own safety and to make a reasonable show of force necessary to effectuate the stop. State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct. App. 1984).

Where police had adequate grounds to conduct an investigative stop and, when the stop occurred, defendant attempted to walk away from the scene and the police, with weapons drawn, ordered him to halt and to return, such detention by the police was within the permissible scope of the investigative stop. State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct. App. 1984).

An investigative stop will ripen into an arrest, which must then be supported by reasonable cause, if the detention becomes overly intrusive; accordingly, an arrest is deemed to have occurred, and must be tested against the requirement of reasonable cause, when the actions of the police go beyond those authorized for an investigative stop. State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct. App. 1984).

Offense in Presence of Officer.

A deputy sheriff had sufficient facts within his knowledge to make an arrest where upon being informed that the offense of drunken operating of a motor vehicle had been committed, such operator actually committed the offense in the presence of the officer, the operator starting his motor and spinning the wheels of the vehicle in an effort to move the car out of the borrow pit into which he had gone off the road, being driven within the meaning of the statute. State v. Parker, 81 Idaho 51, 336 P.2d 318 (1959).

Where police officer was in the process of obtaining warrant to arrest defendant for disturbing peace, but after few minutes realized that he did not need one when the offense was committed in his presence, such conduct was reasonable and prompt although it was not the most desirable. State v. Wozniak, 94 Idaho 312, 486 P.2d 1025 (1971), overruled on other grounds, State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975).

It is not necessary under subsection 3 of this section that the felony be committed in the presence of the arresting officer. The statute also authorizes an arrest based upon a request from other police officers, if the officer requesting the arrest has probable cause to believe that the arrestee committed a felony. State v. Oakley, 119 Idaho 1006, 812 P.2d 313 (Ct. App. 1991). Offense of driving without privileges was committed by defendant in the presence of two police officers, and the officers had the authority to arrest defendant, where the officers saw a vehicle being driven and defendant admitted that he had been driving the vehicle and that his driver’s license was suspended. State v. Campbell, 145 Idaho 754, 185 P.3d 266 (Ct. App. 2008).

Officers’ Discretion and Duty.

Peace officer has the right and duty to determine what criminal charge should be lodged against accused. He has such powers as are necessary to the effectual execution of the powers given him by law. Cornell v. Harris, 60 Idaho 87, 88 P.2d 498 (1939).

If an arrest is made on warrant charging party with commission of offense outside presence of arresting officer and not immediately after commission of offense, the officer must inform the arrested party of his intention to make arrest, cause of arrest, and his authority to make arrest, if so requested by arrested party. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Despite the use of the word “may,” the statute imposes a duty on peace officers to make arrests. Monson v. Boyd, 81 Idaho 575, 348 P.2d 93 (1959).

Police officers did not have control over vehicle of driver who was taken to hospital by police officers after being struck in the nose by bouncer at local bar where doctor who treated driver told officers that driver was too intoxicated to drive and officers advised driver not to drive and to have someone pick him up and take him home, since neither subsection 1 of this section,§ 50-209 nor§ 49-205(3) imposes a duty on a police officer to arrest an intoxicated person who possesses the keys to a vehicle the person might drive, and who has not committed some other crime for which the officer might arrest the person. The officers were not liable in tort to person injured when driver attempted to drive himself in the vehicle after officers had returned his keys to him and departed. Olguin v. City of Burley, 119 Idaho 721, 810 P.2d 255 (1991).

Where police officers had observed defendant smoking a marijuana cigarette, their statement that defendant would be subject to arrest if he did not turn over what drugs he had did not render defendant’s subsequent consent to search his truck involuntary, as it merely informed defendant of their intention to do something that was within their authority based on the circumstances. State v. Garcia, 143 Idaho 774, 152 P.3d 645 (Ct. App. 2006).

Probable Cause.

Officers had probable cause to arrest defendant for violating§ 37-2732, where the evidence showed that he was present for at least 30 minutes in an apartment, the apartment emanated a strong odor of marijuana, and the apartment owner admitted there was marijuana and drug paraphernalia inside the apartment. State v. Williams, 162 Idaho 56, 394 P.3d 99 (Ct. App. 2016).

— Found.

An automobile with out-of-town license plates moving slowly in the early morning, in a residential district, in the immediate vicinity of a building where a burglary which police officers were investigating had taken place a few minutes before, and a passenger getting out, apparently furtively throwing something away, and returning to the car were circumstances sufficient to justify an arrest by such police officers without a warrant under subsection 3 of this section. State v. Loyd, 92 Idaho 20, 435 P.2d 797 (1967). Defendant’s arrest for illegal possession of marijuana was based on reasonable cause within the meaning of this section, where officers observed what appeared to be the preliminaries of a sale of marijuana by defendant to an informer; where the informer, whom the officers knew from past occasions to be reliable, told them he had purchased the marijuana from defendant; and where the marijuana had been delivered by the informer to the officers shortly after its purchase in a paper sack similar to one the officers had observed defendant carrying during their surveillance of him. State v. Segovia, 93 Idaho 594, 468 P.2d 660 (1970).

Where police received anonymous call that marijuana was growing in backyard of a residence, and they ascertained name of person from city directory, observed cultivated and freshly watered marijuana in yard, observed sports car behind house and lights on in house, there was reasonable cause to believe defendant had committed a crime and was at home. State v. Pontier, 95 Idaho 707, 518 P.2d 969 (1974).

Where the police were informed of an armed robbery and were aware that, just before the robbery, a man fitting defendant’s general description had been seen in the vicinity wearing a heavy coat, despite the warm weather, and what appeared at that time to be a stocking cap and where, when stopped, the defendant attempted to leave the scene and, when ordered to return, was seen to have what then appeared to be a ski mask protruding from his back pocket, these facts, considered together and viewed in light of practical considerations of everyday life, would lead an ordinarily prudent and cautious police officer to believe, or to entertain an honest and strong suspicion, that defendant had participated in the reported robbery; consequently, the arrest of defendant was supported by reasonable cause and the search of his pocket was valid. State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct. App. 1984).

Where a Nevada highway patrol officer observed defendant driving in Nevada towards the Idaho border in a weaving manner, and the officer followed defendant into Idaho where he stopped him and detained him until Idaho State Patrolman arrived at the scene, and the Idaho officer testified that defendant appeared to be inebriated and so he took him into custody and took him to sheriff’s office, where he was administered a field sobriety test which he failed, the warrantless arrest made by the Idaho officer was legal, as he had reasonable cause to believe defendant was driving under the influence. State v. Ruhter, 107 Idaho 282, 688 P.2d 1187 (1984).

Where having obtained a warrant, the sheriff led a contingent of law enforcement officers upon a search for marijuana at the home of defendants and when the officers arrived, defendant met them outside, near their vehicles and after they showed him the search warrant, they handcuffed him and detained him in a police car while the search was conducted and some 90 minutes later, advised him that he was under arrest, if the search warrant was founded upon probable cause, the detention was permissible. State v. Schaffer, 107 Idaho 812, 693 P.2d 458 (Ct. App. 1984).

Although the deputy had no authority to make a warrantless arrest for misdemeanor offenses committed outside his presence, he was authorized to issue a citation as provided in§ 19-3901 where he had probable cause, based on a citizen’s eyewitness account, that the defendant had violated one or more misdemeanor statutes regulating the operation of boats. State v. Simpson, 112 Idaho 644, 734 P.2d 669 (Ct. App. 1987).

Where the officer was dispatched to investigate a report of suspicious activities by three men at a public rest room, the officer’s way into the rest room was temporarily blocked by one of the individuals, after the officer entered, he found two other persons conversing inside a doorless toilet stall, one of the men dropped a syringe, and the officer observed track marks on the defendant’s arms as well as a cut-off soda pop can with a singed bottom, the officer had probable cause to arrest the defendant for possession of drug paraphernalia and the discovery of heroin, during a search incident to the arrest, was lawful. State v. Montague, 114 Idaho 319, 756 P.2d 1083 (Ct. App. 1988). If an officer observes a marijuana pipe in plain view, in actual or constructive possession of a person, he has probable cause to arrest that individual for violating§ 37-2734A. State v. Chambliss, 116 Idaho 988, 783 P.2d 327 (Ct. App. 1989).

Where surveillance established that defendant routinely met with drug dealer immediately prior to the scheduled times for cocaine sales, where, on one occasion outside of drug dealer’s residence, an officer observed defendant discreetly passing a small object to drug dealer, and where defendant was driver to drug dealer on the occasion of one cocaine sale, the succession of superficially innocent events had proceeded to a point where a prudent man could say that an innocent course of conduct was substantially less likely than a criminal one. State v. Rubio, 115 Idaho 873, 771 P.2d 537 (Ct. App. 1989).

Where police officer, after stopping defendant’s automobile, noticed that defendant’s eyes were glazed and bloodshot, his speech was slightly slurred and his breath smelled of alcohol, and where the officer also noted that defendant had a tail light out, crossed the fog line twice, and admitted to have had three beers to drink, these facts established probable cause to arrest defendant and to request that he submit to a blood-alcohol test. State v. Armbruster, 117 Idaho 19, 784 P.2d 349 (Ct. App. 1989).

Where the lawful search of defendant’s residence and other buildings on the property revealed a quantity of marijuana, indicating that one or more felonies had been committed, the officers clearly had reasonable cause to believe that defendant, who resided on the premises, committed a felony, and where they then communicated this information to the officers at the police station, those officers were authorized to arrest defendant. State v. Oakley, 119 Idaho 1006, 812 P.2d 313 (Ct. App. 1991).

Though defendant did not touch the officers, he placed himself in the path of the officers, forcing them to push him out of the way. Defendant ignored the officers’ repeated verbal requests to move away. He placed himself unnecessarily close to the officers and made hand gestures in front of their faces. These facts are sufficient to establish probable cause for defendant’s arrest. State v. Quimby, 122 Idaho 389, 834 P.2d 906 (Ct. App. 1992).

While attempting to stop a vehicle, the officer observed that all three occupants were moving excessively about the interior of the car for a period before the driver finally brought the vehicle to a stop. From this excessive activity, followed by the discovery of drugs in the automobile, an officer could reasonably infer that all of the occupants had been taking steps to conceal the contraband in the car, and this evidence, together with defendant’s physical position on the seat next to the backpack, would lead a prudent person to entertain an honest and strong suspicion that defendant had knowledge and control of the contraband in the backpack; and although this evidence might have been insufficient to convict defendant for possession of the drugs in the backpack, it was adequate to create probable cause for his arrest. State v. Zentner, 134 Idaho 508, 5 P.3d 488 (Ct. App. 2000).

— In General.

Reasonable cause exists for an arrest in daylight without warrant on a charge where there is such a state of facts as would lead man of ordinary care and prudence to believe or entertain honest and strong suspicion that such person is guilty. State v. Autheman, 47 Idaho 328, 274 P. 805 (1929).

Officer is not required to satisfy himself beyond question that felony has been committed. State v. Autheman, 47 Idaho 328, 274 P. 805 (1929).

Whether or not officer had probable cause for arrest is generally a question for jury. State v. Autheman, 47 Idaho 328, 274 P. 805 (1929); Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957 (1934).

Reasonable cause to believe that accused has committed a felony is the test of the officer’s right to arrest under this provision. Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957 (1934); State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959).

The definition of “reasonable cause” is the possession of such information on the part of the arresting officer as would lead a man of ordinary care and prudence to believe or entertain honest and strong suspicion that a felony had been committed by appellant. State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959).

Generally, an officer may, without a warrant, arrest a person whom he has probable cause to believe guilty of a felony. Probable cause must, in this connection, mean reasonable ground of presumption that the charge is, or may be, well founded. State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959).

A warrantless arrest based upon a request from a fellow police officer is legal only if the officers initially requesting the arrest had probable cause to believe that the arrestee had committed a crime. State v. Crawford, 99 Idaho 87, 577 P.2d 1135 (1978).

Probable cause does not require an officer to compile an ironclad case against a suspect; rather, it deals with the probable consequences of all facts considered as a whole. State v. Alger, 100 Idaho 675, 603 P.2d 1009 (1979).

Reasonable or probable cause has been defined as information that would lead a man of ordinary care and prudence to believe or entertain an honest and strong suspicion that such person is guilty. State v. Alger, 100 Idaho 675, 603 P.2d 1009 (1979); State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).

In reviewing a police officer’s determination of reasonable cause in the field, courts will take into account the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act. State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct. App. 1984).

Where the arresting officer’s information came in part from the police radio, reasonable cause must be tested upon the full information in police possession which caused the radio messages to be sent, not merely upon the messages themselves. State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct. App. 1984).

An attempt to leave the scene of the investigative stop is an important factor, though not in itself dispositive, in determining reasonable cause for arrest; particularized suspicion, when combined with an attempt to avoid an investigative stop, may constitute adequate grounds for a finding of reasonable cause. State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct. App. 1984).

Where the objective evidence showed that probable cause existed to arrest the defendant and that an arrest occurred at the time the defendant was initially confronted, the detective’s subjective doubts concerning probable cause were not material. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986). In determining whether there is probable cause for an arrest, an officer is entitled to draw reasonable inferences from the available information in light of the knowledge that he has gained from his previous experience and training. State v. Kysar, 116 Idaho 992, 783 P.2d 859 (1989).

Reasonable or probable cause for an arrest exists where the officers possess information that would lead a person of ordinary care and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty. State v. Quimby, 122 Idaho 389, 834 P.2d 906 (Ct. App. 1992).

The fact that defendant turned around and ran gave the officers an additional basis under which they had probable cause to arrest him. State v. Quimby, 122 Idaho 389, 834 P.2d 906 (Ct. App. 1992).

Merely because driving without privileges is not included in the list of vehicular offenses in§ 49-1405 does not negate an officer’s ability to arrest, based on probable cause, for a violation of§ 18-8001(1). State v. Carr, 123 Idaho 127, 844 P.2d 1377 (Ct. App. 1992).

— Collective Knowledge Sufficient.

In possession of cocaine case, evidence of probable cause included drug dealer’s incriminating statements concerning defendant, even though the statements were not known to the arresting officers at the moment of his arrest. The arresting officers did not need to have personal knowledge of all the items of information used to assess the probable cause to arrest defendant. The collective knowledge and information of all the officers involved in the investigation, when taken together, were sufficient to constitute probable cause. State v. Rubio, 115 Idaho 873, 771 P.2d 537 (Ct. App. 1989).

Defendant maintained that he was not shown to have committed an offense in officer’s presence, as required in this section, because the officer did not know of the suspension of defendant’s driving privileges. However, the magistrate found it sufficient that officer saw defendant driving, inferred a license suspension from defendant’s inability to produce a driver’s license, and confirmed that inference sufficiently to establish probable cause with the teletype information relayed from dispatch. State v. Carr, 123 Idaho 127, 844 P.2d 1377 (Ct. App. 1992).

— Detention.

A warrant to search a home for contraband, founded upon probable cause, implicitly carries with it a limited authority to detain occupants of the premises while a proper search is conducted. State v. Schaffer, 107 Idaho 812, 693 P.2d 458 (Ct. App. 1984).

Right of Search.

Where law enforcement officers, based upon information of alleged burglarious taking of a movie projector, stopped defendants’ automobile and apprehended defendants, which resulted in their being remitted to the custody of the sheriff, there being a large number of electrical appliances found in the car, since appellants were legally arrested, officer having reasonable cause for believing person arrested to have committed an offense, there was a right of search without search warrant. State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959).

Search Incident to Arrest.

Defendant’s conviction for possession of a controlled substance was improper where the evidence found in his wallet should have been suppressed. Although a drug dog’s alert to defendant’s vehicle, and subsequent failure of a search of that vehicle to disclose contraband, might have caused the officers to be suspicious, the officers could not lawfully arrest him on the basis of their suspicions alone. State v. Gibson, 141 Idaho 277, 108 P.3d 424 (Ct. App. 2005). Search Incident to Arrest.

Search incident to arrest.

When police officer, during an investigative stop, reached into defendant’s pocket, rather than conducting a “pat-down” search for weapons, the scope of a permissible investigative stop was exceeded; therefore, in this case, the time of the arrest — for the purpose of testing the existence of reasonable cause — was coincident with the search itself. State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct. App. 1984).

Even if the detention warrant is invalid, it, like an arrest warrant that turns out to be defective, cannot invalidate an arrest where the police possess probable cause to make the arrest. Therefore, where the officers had reasonable cause to arrest the defendant at the time he was detained, and they also had authority, pursuant to subdivision 3 of this section, to make a warrantless arrest, the arrest was valid, and the roll of money found in the defendant’s pocket was lawfully acquired in a search incident to that arrest. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).

Where police officers discovered cocaine and scales in the console of defendant’s vehicle, after he was arrested for the misdemeanor charge of operating a motor vehicle without liability insurance, the court of appeals upheld the search and seizure of evidence as a search incident to arrest. State v. Wheaton, 121 Idaho 727, 827 P.2d 1174 (Ct. App. 1991), aff’d, 121 Idaho 723, 827 P.2d 1174 (1992).

Landing located immediately adjacent to entry of bar and staffed by a bouncer checking for identification constituted part of a “premises licensed to sell liquor or beer,” giving a police officer statutory authority to request identification from defendant. When defendant refused to produce this identification, officer could legally arrest him and search him incident to that arrest, and drugs found on his person during that search were admissible. State v. Conant, 143 Idaho 797, 153 P.3d 477 (2007).

Unnecessary Force.

An officer, in making an arrest though legal, is guilty of assault and battery, if he uses unnecessary and excessive force. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Waiver.

Cited

One, who pleads guilty to criminal charge following unlawful arrest does not waive right to sue arresting officer for damages for unlawful arrest. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953). Cited State v. Anderson, 31 Idaho 514, 174 P. 124 (1918); Sima v. Skaggs Payless Drug Center, Inc., 82 Idaho 387, 353 P.2d 1085 (1960); State v. Crabb, 107 Idaho 298, 688 P.2d 1203 (Ct. App. 1984); State v. Moore, 111 Idaho 854, 727 P.2d 1282 (Ct. App. 1986); State v. Griffiths, 113 Idaho 364, 744 P.2d 92 (1987); State v. Wren, 115 Idaho 618, 768 P.2d 1351 (Ct. App. 1989); State v. Rodriguez, 115 Idaho 1096, 772 P.2d 734 (Ct. App. 1989); State v. Bowman, 124 Idaho 936, 866 P.2d 193 (Ct. App. 1993); State v. Dycus, 154 Idaho 456, 299 P.3d 263 (Ct. App. 2013); State v. Hunter, 156 Idaho 568, 328 P.3d 548 (Ct. App. 2014); State v. Islas, — Idaho —, 443 P.3d 274 (Ct. App. 2019).

ALR.

§ 19-604. When private person may arrest.

A private person may arrest another:

1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not in his presence.
3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.

History.

Cr. Prac. 1864, § 137, p. 228; R.S., R.C., & C.L., § 7541; C.S., § 8727; I.C.A.,§ 19-604.

In General.

A private citizen, having statutory power under this section, may arrest at night without a warrant of arrest for a misdemeanor committed in his presence. Sima v. Skaggs Payless Drug Center, Inc., 82 Idaho 387, 353 P.2d 1085 (1960).

In His Presence.

The act of stealing property from its owner is not an element of theft by possession of stolen property under subsection (4) of§ 18-2403. Therefore, it was not necessary that the employees observe the removal of items from their employer’s loading dock in order to make a citizen’s arrest. Under the circumstances where the employees saw defendant in possession of items that looked identical to those stored on employer’s loading dock and when confronted defendant said he thought the items had been discarded, which was an admission that the items had come from the loading dock, the offense of theft by possession of stolen property was committed “in the presence” of the employees, and the court properly held that the employees had effectuated a valid citizen’s arrest in compliance with this section. State v. Moore, 129 Idaho 776, 932 P.2d 899 (Ct. App. 1996).

Officer Outside Limits of His Authority.

Officer Outside of Jurisdiction.

Although the officer who arrested and detained the defendant for driving under the influence of alcohol was outside the territorial limits of his authority, he was able to arrest, as private persons are, those committing the offense of driving under the influence and he was a person authorized to make a request to submit to a blood-alcohol test. State v. Griffiths, 113 Idaho 364, 744 P.2d 92 (1987). Officer Outside of Jurisdiction.

Officer outside of jurisdiction.

Although outside of his jurisdiction at the time of the traffic stop, driver was on duty at that time, was dressed in his law enforcement uniform and badge, and was driving a marked law enforcement vehicle with an overhead light bar which he used to effectuate the stop. Therefore, he was acting as a law enforcement officer when he conducted the investigatory stop of defendant and an analysis of this section was inappropriate. State v. Benefiel, 131 Idaho 226, 953 P.2d 976, cert. denied, 525 U.S. 818, 119 S. Ct. 58, 142 L. Ed. 2d 45 (1998).

Officers.

Idaho has no case law which holds that a police officer who is acting as a police officer at the time of the arrest cannot make a citizen’s arrest. Laughlin v. State, 139 Idaho 726, 85 P.3d 1125 (Ct. App. 2003).

Self-Defense.

Where a citizen was killed while resisting a felony, which he had the right to do, the accused could not claim that he abandoned the attempt to commit the felony and shot in self-defense. State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953), overruled on other grounds, State v. Shepard, 94 Idaho 227, 486 P.2d 82 (1971).

Unlawful Arrest.

Where plaintiff was not informed of defendant’s intention to arrest her, of the cause of the arrest, nor defendant’s authority to make it, and was not taken without delay to the nearest and most accessible magistrate in the county where the arrest was made and while the offense was allegedly committed in defendant’s presence he did not make the arrest until several hours thereafter nor did he obtain a warrant during the interval and where the court before which plaintiff was eventually taken had no jurisdiction, plaintiff’s civil rights under state law were violated. Antelope v. George, 211 F. Supp. 657 (D. Idaho 1962).

Valid Arrest.

Given the defendant’s conduct, the police officer’s decision to defuse the situation by removing the parties from the scene and having the citizen’s arrest completed at the police station was prudent; at the police station the private citizen completed the necessary documentation for the citizen’s arrest and followed the requirements of§ 19-608. The district court erroneously held that the police unlawfully arrested the defendant where the undisputed facts showed that the private citizen made a valid citizen’s arrest at the police station. State v. Sutherland, 130 Idaho 472, 943 P.2d 62 (Ct. App. 1997).

The defendant’s arrest was a valid citizen’s arrest and although the police officer conducted a warrantless search of the defendant’s purse immediately after she had been placed under citizen’s arrest by the private citizen, police officers may conduct a search of an arrestee incident to a citizen’s arrest once the subject has been placed in their custody; as such the police officer’s warrantless search of the defendant’s purse was a proper search incident to an arrest. State v. Sutherland, 130 Idaho 472, 943 P.2d 62 (Ct. App. 1997).

ALR.

Power of private citizen to institute criminal proceedings without authorization or approval by prosecuting attorney. 90 A.L.R.6th 385.

Authority of Officers.

This section restricting authority of an officer to make arrests at night under certain circumstances does not apply to offenses committed in the presence of the officer. Smith v. Lott, 73 Idaho 205, 249 P.2d 803 (1952).

Authority of Private Citizen.

A private citizen, having statutory authority under§ 19-604, may likewise arrest at night without a warrant of arrest for a misdemeanor committed in his presence. Sima v. Skaggs Payless Drug Center, Inc., 82 Idaho 387, 353 P.2d 1085 (1960).

City Ordinance.

Arrest without a warrant for begging in violation of a city ordinance, committed in the presence of the arresting officer was a lawful arrest. Clark v. Alloway, 67 Idaho 32, 170 P.2d 425 (1946).

Communication of Intent to Arrest.

Although the statute requires officer to inform person to be arrested of his office and purpose, “this becomes an idle formality when officer is known.” People v. Nash, 1 Idaho 206 (1866).

Officers calling upon suspect to stop without previous notification of intent to arrest him were not justified in shooting him because he ran and they are liable for his death. Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957 (1934).

If an arrest is made on warrant charging party with commission of offense outside presence of arresting officer and not immediately after commission of offense, the officer must inform the arrested party of his intention to make arrest, cause of arrest, and his authority to make arrest, if so requested by arrested party. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Where there was no showing that driver attempted to avoid police officers or failed to stop when they signaled him to do so and driver complied with officers’ request that he produce his vehicle registration and driver’s license, at that point, for all practical purposes, the officers, not the driver, were in control of the vehicle and there was no reason for the police officers not to advise the driver of the fact of his arrest, the reason therefor, and their authority to make the arrest. Sprague v. City of Burley, 109 Idaho 656, 710 P.2d 566 (1985).

Where deputy sheriff was faced with a dangerous drunk who was attempting to strike him with a potentially lethal weapon, the deputy was not required to give the statutory notice that he was placing defendant under arrest until defendant physically had been subdued. State v. Dolsby, 124 Idaho 271, 858 P.2d 810 (Ct. App. 1993).

False Arrest.

Jury was justified in finding police officer guilty of false arrest even though he had a warrant for arrest of plaintiff on charge of assault and battery, where evidence showed that officer did not show the warrant, or advise her of his reason for making arrest even though she requested same, and upon her refusal to submit voluntarily proceeded to use force in making arrest. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

In General.

This section requires that the person be informed of the cause of the arrest and not the charge for which he might eventually be made to answer; thus, although defendant’s underlying arrest was validated under a different charge (aggravated battery) than that for which he was originally cited (misdemeanor domestic battery), defendant was informed of the cause of his arrest, the alleged battery committed on his wife, and such arrest was lawful. State v. Julian, 129 Idaho 133, 922 P.2d 1059 (1996).

Given the defendant’s conduct, the police officer’s decision to defuse the situation by removing the parties from the scene and having the citizen’s arrest completed at the police station was prudent; at the police station the private citizen completed the necessary documentation for the citizen’s arrest and followed the requirements of this section. The district court erroneously held that the police unlawfully arrested the defendant, where the undisputed facts showed that the private citizen made a valid citizen’s arrest at the police station. State v. Sutherland, 130 Idaho 472, 943 P.2d 62 (Ct. App. 1997).

Legislative Intent.

The clear intent of this section is to uphold an otherwise lawful arrest when, under the circumstances, it would not be practical for an officer to inform the arrestee of the fact of the arrest, the officer’s authority to make the arrest, and the cause for the arrest. Sprague v. City of Burley, 109 Idaho 656, 710 P.2d 566 (1985).

Unlawful Arrest.

Where plaintiff was not informed of defendant’s intention to arrest her, of the cause of the arrest, nor of defendant’s authority to make it, and was not taken without delay to the nearest and most accessible magistrate in the county where the arrest was made and while the offense was allegedly committed in defendant’s presence he did not make the arrest until several hours thereafter nor did he obtain a warrant during the interval and where the court before which plaintiff was eventually taken had no jurisdiction, plaintiff’s civil rights under state law were violated. Antelope v. George, 211 F. Supp. 657 (D. Idaho 1962).

Unnecessary Force.

An officer in making an arrest though legal is guilty of assault and battery, if he uses unnecessary and excessive force. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Communication of Intent to Arrest.

If an arrest is made on warrant, charging party with commission of offense outside presence of arresting officer and not immediately after commission of offense, the officer must inform the arrested party of his intention to make arrest, cause of arrest, and his authority to make arrest, if so requested by arrested party. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Evidence.

Jury was justified in finding police officer guilty of false arrest, even though he had a warrant for arrest of plaintiff on charge of assault and battery, where evidence showed that officer did not show the warrant, or advise her of his reason for making arrest even though she requested same, and upon her refusal to submit voluntarily, proceeded to use force in making arrest. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

In General.

Where officer had informed defendant’s wife of warrant and when approaching defendant had exhibited papers containing warrant, there was sufficient authority to act; especially when wife had communicated knowledge of warrant to defendant. State v. Wilson, 41 Idaho 616, 243 P. 359 (1925).

Manner of Arrest.

In action for damages for false arrest it was not error for trial court to strike from evidence the criminal complaint issued out of police court, if action was not based on absence of authority to make arrest, but the manner in which the arrest was made. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Unnecessary Force.

An officer in making an arrest though legal is guilty of assault and battery, if he uses unnecessary and excessive force. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Waiver.

One, who pleads guilty to criminal charge following unlawful arrest, does not waive right to sue arresting officer for damages for unlawful arrest. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Amount of Force.

Where arrest is made by officer under authority of warrant, after information of intention to arrest is given, if person to be arrested either flees or forcibly resists, officer may use all necessary means to effect arrest. State v. Wilson, 41 Idaho 616, 243 P. 359 (1925).

Officer making arrest has right to use such force as is necessary to subject person sought to be arrested to his authority, but he may not kill misdemeanant in arresting him. State v. Wilson, 41 Idaho 616, 243 P. 359 (1925).

An officer in making an arrest though legal is guilty of assault and battery, if he uses unnecessary and excessive force. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Jury was justified in finding police officer guilty of false arrest, even though he had a warrant for arrest of plaintiff on charge of assault and battery, where evidence showed that the officer did not show the warrant, or advise her of his reason for making arrest even though she requested same, and upon her refusal to submit voluntarily proceeded to use force in making arrest. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Civil Action.

Duty to public.

Where, in construing the record in the light most favorable to the driver who brought claims against arresting police officers for assault and battery, the circumstances showed that the police officers failed to act in accordance with clearly established Idaho law and failed to act in accordance with clearly established constitutional principles regarding the use of reasonable force in making a lawful arrest. Sprague v. City of Burley, 109 Idaho 656, 710 P.2d 566 (1985). Duty to public.

Duty to public.

The officers had a duty to the general public in addition to the duty owed to the suspect. The officers’ duty to the general public, when arresting a potentially dangerous individual, is to protect innocent bystanders from any harm the arrestee may inflict upon them during the process of being arrested. Kessler v. Barowsky, 129 Idaho 640, 931 P.2d 634 (Ct. App. 1996).

Manner of Arrest.

In action for damages for false arrest, it was not error for trial court to strike from evidence the criminal complaint issued out of police court, if action was not based on absence of authority to make arrest, but the manner in which the arrest was made. Anderson v. Foster, 73 Idaho 340, 252 P.2d 199 (1953).

Right of Self-Defense.

If person sought to be arrested believes or has reason to believe that he is in danger of being killed or of receiving great bodily injury, he may defend himself, repelling force with force, to extent of slaying officer when necessary to save his own life or save himself from great bodily harm. State v. Wilson, 41 Idaho 616, 243 P. 359 (1925).

If officer uses unnecessary force in making arrest, relation between parties becomes same as those between private individuals. State v. Wilson, 41 Idaho 616, 243 P. 359 (1925).

In case of mutual combat, reputation of officer for being turbulent, quarrelsome, and dangerous, if communicated prior to affray, is admissible as bearing on question of who was probable aggressor and whether or not person arrested had reasonable cause to believe his life was in danger. State v. Wilson, 41 Idaho 616, 243 P. 359 (1925).

Consent.

On its face, this section establishes prerequisites for forcible entries; the statute is not implicated where police officers gain entry by the consent of an occupant of the dwelling. State v. Gregory, 130 Idaho 98, 936 P.2d 1340 (Ct. App. 1997).

Where the police officer knew trailer owner personally, conversed with her through the already open door, and then was given permission to enter, the officer did not “break open the door or window of the house” or otherwise make a forcible entry of the residence. State v. Gregory, 130 Idaho 98, 936 P.2d 1340 (Ct. App. 1997).

Exigent Circumstances.

No inconsistency would exist between a finding of the existence of probable cause to enter and secure a house until a search warrant could be obtained and the finding that no exigent circumstances existed which would allow the officers to ignore the knock and announce statute, because of the entirely different time frames involved. State v. Rauch, 99 Idaho 586, 586 P.2d 671 (1978).

To create exigent circumstances which would justify a belief that evidence would be lost requires evidence such as furtive or rapid movements in the house or warning calls within the house; and independent grounds could exist where there is evidence of weapons in the house which would endanger the lives of the officers if they announced their presence. State v. Rauch, 99 Idaho 586, 586 P.2d 671 (1978). The term “exigent circumstances” in the “knock and announce” context does not necessarily, although it may, carry the same meaning as it does in the warrantless entry and warrantless arrest context. State v. Rauch, 99 Idaho 586, 586 P.2d 671 (1978).

In the context of “knock and announce” statutes, “exigent circumstances” may refer to those immediate circumstances where a defendant may be armed, where evidence may be easily and immediately destroyed, where a defendant may escape, or where a defendant has engaged in furtive conduct. State v. Rauch, 99 Idaho 586, 586 P.2d 671 (1978).

Failure to Announce Purpose.

There was substantial evidence to justify the trial judge’s finding that exigent circumstances did not exist to excuse noncompliance with the “knock and announce” statutes, where there was no evidence presented which indicated that there were weapons in the house or that there was furtive conduct in the house which would justify the belief that evidence would be lost in the time it would have taken to comply with the “knock and announce” statute. State v. Rauch, 99 Idaho 586, 586 P.2d 671 (1978).

Illegally Seized Evidence.

The very sanctity of the home that underlies the passage of “knock and announce” statutes requires that evidence seized as a result of the violation of those statutes be excluded. State v. Rauch, 99 Idaho 586, 586 P.2d 671 (1978).

Purpose.

The primary purposes of knock-and-announce statutes are to protect the privacy of the occupant and to prevent situations which are conducive to violent confrontations between the occupant and individuals who enter without proper notice. State v. Walker, 107 Idaho 308, 688 P.2d 1213 (Ct. App. 1984).

Restrictions on Execution of Warrant.

While this statute gives the police broad power in executing a warrant, a judge has the inherent power to limit the conditions under which others may execute the warrant. State v. Hall, 132 Idaho 751, 979 P.2d 624 (1999).

Where the magistrate who signed warrants of attachment specifically limited where and when the warrants could be served, and where the restriction as to “any public place” was ignored by police when they executed the warrants upon the defendant in his motel room, the forcible entry into the defendant’s “home” was invalid and, thus, equivalent to a prohibited warrantless entry. State v. Hall, 132 Idaho 751, 979 P.2d 624 (1999).

Substantial Compliance.

Defendant’s motion to suppress evidence of drugs found during search incident to an arrest was proper, where the arresting officer stood outside a gate on defendant’s property and told him there was misdemeanor warrant for his arrest, defendant came to where officer was standing, and during search incident to arrest, drugs were were found; the area just outside defendant’s gateway was a public place for purposes of an arrest warrant with a public place only limitation. State v. Reyna, 142 Idaho 624, 130 P.3d 1162 (Ct. App. 2005). Substantial Compliance.

Substantial compliance.

Where officers otherwise complied with knock-and-announce statute by knocking, announcing their presence and disclosing their identity or authority, but stated their purpose for entering only after they had gained entrance to the premises, substantial compliance with the statute occurred and the entry was legal. State v. Walker, 107 Idaho 308, 688 P.2d 1213 (Ct. App. 1984).

Delivery to Police Officer.

A police officer may take custody of a person delivered pursuant to this section following a citizen’s arrest for a misdemeanor, even though the officer may not have grounds for an independent police arrest because the misdemeanor did not occur in the officer’s presence. State v. Moore, 129 Idaho 776, 932 P.2d 899 (Ct. App. 1996).

Liability for False Imprisonment.

Fact that plaintiff, in action for false arrest against private citizen, was not taken immediately before a magistrate after such arrest did not render the private citizens liable for damages, since their responsibility ended when they turned plaintiff over to police. Sima v. Skaggs Payless Drug Center, Inc., 82 Idaho 387, 353 P.2d 1085 (1960).

Searches.

A police officer may conduct a search incident to a citizen’s arrest. A search conducted by a police officer incident to a citizen’s arrest is justified by the same rationale underlying searches incident to any other lawful arrest. The need to preserve evidence, and to remove weapons and items of value that the arrestee might use to effect an escape, is equally present whether a citizen or police officer initiated the arrest. State v. Moore, 129 Idaho 776, 932 P.2d 899 (Ct. App. 1996).

Delay in Arraignment.

Where plaintiff was not informed of defendant’s intention to arrest her, of the cause of the arrest, nor defendant’s authority to make it, and was not taken without delay to the nearest and most accessible magistrate in the county where the arrest was made and while the offense was allegedly committed in defendant’s presence he did not make the arrest until several hours thereafter nor did he obtain a warrant during the interval and where the court before which plaintiff was eventually taken had no jurisdiction, plaintiff’s civil rights under state law were violated. Antelope v. George, 211 F. Supp. 657 (D. Idaho 1962).

Where first statement by defendant was made prior to his arrest and second statement was made under conditions that indicated that there were no “third degree” tactics utilized by police, any possible delay in arraignment under this section did not act to make statements inadmissible at trial. State v. Padilla, 101 Idaho 713, 620 P.2d 286 (1980).

In the 27 hours between defendant’s arrest and his initial appearance before a magistrate, all of the inculpatory evidence secured by the police was obtained within the 24 hours allowed by Idaho R. Crim. P. 5 and was collected within the confines of the Rule, and, as defendant did not demonstrate prejudice the district court’s admission of such inculpatory evidence was appropriate. State v. Knapp, 120 Idaho 343, 815 P.2d 1083 (Ct. App. 1991).

Delay in Obtaining Confession.

An uncooperative motorist was improperly held in county jail for four days following her arrest before being brought before a magistrate, despite her repeated demands to see a magistrate, where county officials made no showing that the delay was justified by reasonable and prompt administrative procedures, or that the delay was anything other than a coercive measure imposed to gain her cooperation in answering booking questions. Hallstrom v. City of Garden City, 991 F.2d 1473 (9th Cir.), cert. denied, 510 U.S. 991, 114 S. Ct. 549, 126 L. Ed. 2d 540 (1993). Delay in Obtaining Confession.

Delay in obtaining confession.

Confession was not invalid for delay of officer in taking defendant before magistrate where no “third degree” methods were used and defendant testified to substantially same facts as contained in confession. State v. Behler, 65 Idaho 464, 146 P.2d 338 (1944), overruled on other grounds, State v. White, 93 Idaho 153, 456 P.2d 797 (1969).

The voluntary character of a confession obtained prior to arraignment is placed in doubt when there is an unreasonable delay between arrest and arraignment; however, the confession is not per se inadmissible. State v. Wyman, 97 Idaho 486, 547 P.2d 531 (1976), overruled on other grounds, State v. McCurdy, 100 Idaho 683, 603 P.2d 1017 (1979).

Effect of Unnecessary Delay.

Failure to bring defendant to a magistrate without unnecessary delay did not deprive district court of right to try defendant for alleged offense. State v. Bedwell, 77 Idaho 57, 286 P.2d 641 (1955).

While the court does not necessarily condone the lapse of time which occurred between arrest and the petitioner’s appearance before a magistrate, the facts alleged are not such as to affect the jurisdiction of the court which issued the process, petitioner having been apprehended at 4:00 a.m. on Saturday and not being taken before a justice of the peace until about 3:30 p.m. the following Monday. Smith v. State, 87 Idaho 163, 391 P.2d 849 (1964).

In General.

Defendant could not complain of delay in being taken before a magistrate where arresting officer arrived in town, with defendant in custody, after 5:30 in the evening and took defendant before magistrate the following morning, especially where defendant waived preliminary examination. State v. Behler, 65 Idaho 464, 146 P.2d 338 (1944), overruled on other grounds, State v. White, 93 Idaho 153, 456 P.2d 797 (1969).

Prejudice.

The defendant has the burden of showing prejudice caused by delay. To demonstrate prejudice, defendant must show that the unnecessary delay reasonably contributed to the acquisition of inculpatory evidence or resulted in the loss of exculpatory evidence or that the delay otherwise affected his ability to present a defense. State v. Fowler, 106 Idaho 3, 674 P.2d 432 (Ct. App. 1983), overruled on other grounds, State v. Holman, 109 Idaho 382, 707 P.2d 493 (Ct. App. 1985).

Timely Presentation.

Waiver of Delay.

The laws of Idaho guaranteeing timely presentation to a magistrate place substantive limitations on official discretion and contain explicitly mandatory language sufficient to create a liberty interest protected by the Fourteenth Amendment and actionable under 42 U.S.C.S. § 1983. Hallstrom v. City of Garden City, 991 F.2d 1473 (9th Cir.), cert. denied, 510 U.S. 991, 114 S. Ct. 549, 126 L. Ed. 2d 540 (1993). Waiver of Delay.

Waiver of delay.

Failure of state to bring defendant before a magistrate without unnecessary delay was waived by the defendant where motion to dismiss for alleged irregularity was not filed until after defendant had entered his plea. State v. Bedwell, 77 Idaho 57, 286 P.2d 641 (1955).

Amendments.

The 2012 amendment, by ch. 78, substituted “Telecommunication of warrant” for “Telegraphing warrant” in the section heading and rewrote the section, which formerly read: “A justice of the Supreme Court or probate judge may, by an indorsement under his hand upon a warrant of arrest, authorize the service thereof by telegraph, and thereafter a telegraphic copy of such warrant may be sent by telegraph to one or more peace officers, and such copy is as effectual in the hands of any officer, and he must proceed in the same manner under it as though he held an original warrant issued by the magistrate making the indorsement.”

Compiler’s Notes.

The bracketed insertion was added by the compiler to make a grammatical correction to the 1864 session law.

Compiler’s Notes.

The term “this act” refers to S.L. 1957, chapter 31, which is compiled as§§ 19-620 to 19-623.

Prerequisites to Road Blocks.

If the police have a reasonable belief that a crime has been committed and they have a basic description of the suspect, this section allows them to set up a road block on a likely escape route to apprehend the suspect. State v. Gascon, 119 Idaho 932, 812 P.2d 239 (1991).

Road Blocks to Detect Drunk Drivers.

A police road block designed to detect and deter drunk driving is not constitutionally permissible where the police have failed to obtain a judicial warrant, have no probable cause to believe the automobile driver is engaged in criminal wrongdoing, and lack legislative authority to establish a road block. State v. Henderson, 114 Idaho 293, 756 P.2d 1057 (1988).

Because the evidence used to convict the defendant of driving under the influence was unconstitutionally obtained pursuant to a warrantless search, prior to which the police lacked individualized suspicion of criminal wrongdoing and authority to establish a road block, the magistrate erred in denying the defendant’s motion to suppress. State v. Henderson, 114 Idaho 293, 756 P.2d 1057 (1988).

Standard for Reasonableness.

An objective standard for measuring the reasonableness of an intrusion on the Fourth Amendment interests of motorists detained by a temporary road block is whether the officers have probable cause to believe a serious felony is being or has recently been committed, and the officers reasonably believe the perpetrator is using the highways or streets. State v. Gascon, 119 Idaho 923, 811 P.2d 1103 (Ct. App. 1989), aff’d 119 Idaho 932, 812 P.2d 239 (1991).

RESEARCH REFERENCES

ALR.

Effective Dates.

Section 7 of S.L. 1972, ch. 285 provided the act should take effect on and after July 1, 1972.

ALR.

§ 19-623. Penalty.

Any person who shall proceed or travel through a road block without subjecting himself to the traffic control so established shall be guilty of a misdemeanor, and shall be punished by a fine of not more than $300.00, or by imprisonment in the county jail for not more than 6 months, or by both fine and imprisonment.

History.

1957, ch. 31, § 4, p. 49.

Effective Dates.

Section 5 of S.L. 1957, ch. 31 declared an emergency. Approved February 12, 1957.

Effective Dates.

Section 2 of S.L. 1967, ch. 114 declared an emergency. Approved March 11, 1967.

Effective Dates.

Section 4 of S.L. 2001, ch. 142 declared an emergency and provided: “This act shall be in full force and effect on and after its passage and approval, and shall apply retroactively to any violation alleged to have been committed as to which the time for commencing prosecution has not expired.”

Applicability.

This section deals only with the detention of an individual for purposes of obtaining identifying physical evidence and had no bearing on whether or not probable cause existed to issue a search warrant for the taking of blood and urine samples. Hopper v. Hayes, 573 F. Supp. 1368 (D. Idaho 1983).

A warrant of detention may be issued by a judge where the requirements of this section are met and the physical evidence sought will materially aid in the investigation of an Idaho felony or appears reasonably calculated to lead to the discovery of information that will do so. State v. Spor, 134 Idaho 315, 1 P.3d 816 (Ct. App. 2000).

Police officers were not required to comply with the warrant requirements of this section in order to test a DNA sample from a water bottle defendant drank from when defendant was lawfully in custody at the time he used the bottle. State v. Piro, 141 Idaho 543, 112 P.3d 831 (Ct. App. 2005).

Construction.

This section authorizes a limited intrusion into a person’s privacy on grounds which may not amount to probable cause for arrest; when the authority granted by a detention warrant is exceeded, the permissibility of the intrusion is determined by the same standard as a warrantless arrest. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986). No language in this section limits the issuance of a warrant of detention to obtaining evidence of physical characteristics directly related to the investigation of criminal activity in Idaho, and although the DNA obtained from defendant’s blood was not directly related to his criminal conduct in Idaho, it was directly relevant to confirming the paternity of a child conceived in Washington during intercourse with a minor child who alleged that she had a sexual relationship with the defendant a year earlier in Idaho. Therefore, the evidence was relevant to establishing the victim’s credibility under the rules of evidence, as well as a common plan to sexually exploit an Idaho victim. State v. Spor, 134 Idaho 315, 1 P.3d 816 (Ct. App. 2000).

Ineffective Assistance of Counsel.

Where defendant after being told about lineup requested to speak with an attorney whereupon the public defender was called and after detention order was read to the public defender he spoke to defendant telling him to cooperate in the lineup but not to answer any questions, it was more appropriate to apply a rule requiring the defendant to show that prejudice resulted from the alleged ineffectiveness of his counsel in not attending the lineup, rather than to apply a per se rule that prejudice must be presumed to exist when counsel fails to attend a preindictment lineup. Boman v. State, 129 Idaho 520, 927 P.2d 910 (Ct. App. 1996).

Invalid Detention Warrant.

Even if the detention warrant is invalid, it, like an arrest warrant that turns out to be defective, cannot invalidate an arrest where the police possess probable cause to make the arrest. Therefore, where the officers had reasonable cause to arrest the defendant at the time he was detained, and they also had authority, under subdivision 3. of§ 19-603, to make a warrantless arrest, the arrest was valid, and the roll of money found in the defendant’s pocket was lawfully acquired in a search incident to that arrest. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).

Right to Attorney.

It was improper for the police officer to indicate in a conversation with the defendant that, since the defendant was being held under the detention warrant, and was not under arrest, he was not entitled to an attorney. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).

ALR.

Cross References.

Initial appearance before magistrate, Idaho R. Crim. P. 5.

Am. Jur. 2d.

§ 19-701A. Officer of this state in fresh pursuit of suspected felon.

Any peace officer of this state in fresh pursuit of a person who is reasonably believed by him to have committed a felony in this state or has committed, or attempted to commit, any criminal offense or traffic infraction in this state in the presence of such officer, or for whom a warrant of arrest is outstanding for a criminal offense, shall have authority to pursue, arrest and hold in custody or cite such person anywhere in this state. All privileges and immunities from liability, exemption from law, ordinances and rules, all pension relief, disability, workmen’s [worker’s] compensation, and other benefits which normally apply to peace officers while they perform their duties in their own jurisdiction shall also apply to them when acting as contemplated above. In addition, this protection shall also be applicable when a peace officer is acting in response to a request for assistance out of his employing jurisdiction. The cost of this protection shall be borne by the individual peace officer’s employing jurisdiction.

History.

I.C.,§ 19-701A, as added by 1980, ch. 152, § 1, p. 322; am. 1981, ch. 137, § 1, p. 240; am. 1987, ch. 85, § 2, p. 160.

Compiler’s Notes.

The bracketed insertion near the beginning of the second sentence was added by the compiler to reflect the 1989 change in terminology of the worker’s compensation law. See§ 72-101.

Effective Dates.

Section 3 of S.L. 1980, ch. 152 declared an emergency. Approved March 25, 1980.

Section 3 of S.L. 1987, ch. 85 declared an emergency. Approved March 24, 1987.

Compiler’s Notes.

“Section 1 of this act” in the first sentence means section 1 of S.L. 1941, ch. 69, which is compiled as§ 19-701.

Compiler’s Notes.

“Section 1 of this act” means section 1 of S.L. 1941, chapter 69, which is now compiled as§ 19-701.

Compiler’s Notes.

“This act,” as used in this section, means S.L. 1941, chapter 69, which is codified as§§ 19-701 and 19-702 to 19-707.

Compiler’s Notes.

“This act,” as used in this section, means S.L. 1941, chapter 69, which is codified as§§ 19-701 and 19-702 to 19-707.

Compiler’s Notes.

“This act,” as used in this section, means S.L. 1941, chapter 69, which is codified as§§ 19-701 and 19-702 to 19-707.

Section 7, S.L. 1941, ch. 69, provides as follows: “If any part of this act is for any reason declared void, it is declared to be the intent of this act that such invalidity shall not affect the validity of the remaining portions of this act.”

Compiler’s Notes.

“This act,” as used in this section, means S.L. 1941, chapter 69, which is codified as§§ 19-701 and 19-702 to 19-707.

Cross References.

Constitutional right to counsel,Idaho Const., Art. I, § 13.

Initial appearance before magistrate, Idaho R. Crim. P. 5.

Preliminary hearing, Idaho R. Crim. P. 5.1, 5.2.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Examination.

Preliminary examination before committing magistrate is in no sense a trial. It is not expected or required that same formality and precision must obtain as is required in trial. State v. Bilboa, 33 Idaho 128, 190 P. 248 (1920).

On preliminary examination, magistrate is not governed by technical rules of evidence governing trial. In re Hollingsworth, 49 Idaho 455, 289 P. 607 (1930).

— Waiver.

When prisoner is informed of his rights, his subsequent waiver of preliminary examination will be upheld. State v. Larkins, 5 Idaho 200, 47 P. 945 (1897), overruled on other grounds, State v. White, 93 Idaho 153, 456 P.2d 797 (1969); State v. Woodward, 41 Idaho 353, 238 P. 525 (1925).

A defendant may waive right to preliminary examination through co-defendant, without appearing in person. State v. Woodward, 41 Idaho 353, 238 P. 525 (1925).

Information.

A proceeding initiated by information entitles the accused to a preliminary hearing before an impartial magistrate to determine whether a crime has been committed and whether there is probable cause to believe that the accused committed it. State v. Edmonson, 113 Idaho 230, 743 P.2d 459 (1987).

Jurisdiction and Venue.

It is the province of the prosecuting attorney to determine the precinct and magistrate, within the county wherein the offense is alleged to have been committed, where such preliminary examination will be held. State v. Griffin, 4 Idaho 462, 40 P. 58 (1895).

Preliminary hearing must be held in county where crime is alleged to have been committed. State v. Griffin, 4 Idaho 462, 40 P. 58 (1895).

It was the intent of the framers of the constitution to provide for probate judges or justices of the peace to act as examining magistrates, before whom persons charged with a felony or indictable misdemeanor might have or waive preliminary examinations. Fox v. Flynn, 27 Idaho 580, 150 P. 44 (1915).

Jurisdiction of justice of the peace, sitting as an examining magistrate, extends throughout the county, and, after complaint has been entertained and warrant issued, his jurisdiction cannot be ousted by the officer who makes the arrest; however, accused may waive such right by failure to object. State v. Andrus, 29 Idaho 1, 156 P. 421 (1916).

Statute requiring all proceedings to be in district court, though offense a misdemeanor, without preliminary examination, violatesIdaho Const., Art. I, § 8. State v. Wilmot, 51 Idaho 233, 4 P.2d 363 (1931).

Knowledge of Offense.

The complaint is sufficient if it gives defendant fair opportunity to know general character and outline of the offense for which he is being examined. State v. Woodward, 41 Idaho 353, 238 P. 525 (1925).

Power and Duty of Prosecutor.

Public Offense.

The prosecuting attorney is not required to be present except for specific statutory enactment or request of magistrate; however, he has a right to appear and take complete charge, including right to dismiss charge, and district court has no authority to appoint a special prosecutor unless the regular prosecutor fails or refuses to act. Mills v. Board of County Comm’rs, 35 Idaho 47, 204 P. 876 (1922). Public Offense.

Public offense.

The fact that the Idaho peace officer making the complaints alleged that a person has committed a public offense in another jurisdiction, and is a fugitive therefrom, does not make it any less a complaint of “a public offense.” Struve v. Wilcox, 99 Idaho 205, 579 P.2d 1188 (1978), appeal dismissed and cert. denied, 439 U.S. 1123, 99 S. Ct. 1037, 59 L. Ed. 2d 84 (1979).

Right to Counsel.

In murder prosecution, that magistrate informed accused that he was entitled to a preliminary examination and an attorney, whereupon accused asked for services of attorney, but magistrate advised accused that he could not have counsel until case reached district court, did not deny defendant’s constitutional right to counsel. State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941) (see Idaho R. Crim. P. 5).

In petition for writ of habeas corpus asserting a violation of constitutional rights, appellant was shown to have waived preliminary hearing upon complaint being read to him and his rights being made known, that on arraignment in the district court he specifically stated he did not desire counsel and he being a man of more than average intelligence it was shown from the time of his arrest to the time of pronouncing sentence that he knew and was fully informed of his rights. Cobas v. Clapp, 79 Idaho 419, 319 P.2d 475 (1957), cert. denied, 356 U.S. 941, 78 S. Ct. 785, 2 L. Ed. 2d 816 (1958) (see Idaho R. Crim. P. 5).

Appellant cannot complain of the fact that counsel was not appointed for him at the expense of the state for his representation in the preliminary hearing. Johnson v. State, 85 Idaho 123, 376 P.2d 704 (1962) (see Idaho R. Crim. P. 5).

Although the state is required to furnish an indigent defendant, who is charged with a serious crime, representation by counsel at any critical stage of a criminal proceeding, a preliminary hearing is not such “critical stage”; therefore, where no plea was entered or sought at such hearing, and nothing accused said or did therein was referred to at his trial, accused was not denied due process by failure to have an attorney at the preliminary hearing, no prejudice having befallen him. Freeman v. State, 87 Idaho 170, 392 P.2d 542 (1964); McGuire v. State, 87 Idaho 185, 392 P.2d 551 (1964) (see Idaho R. Crim. P. 5).

Am. Jur. 2d.

C.J.S.

ALR.

Propriety of consideration of credibility of witness in determining probable cause at state preliminary hearing. 84 A.L.R.3d 811.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section, which comprised Cr. Prac. 1864, § 145; R.S., R.C. & C.L., § 7567; C.S., § 8745; I.C.A.,§ 19-703, was repealed by S.L. 1967, ch. 181, § 18.

Compiler’s Notes.

This section, which comprised I.C.,§ 19-803A, as added by 1965, ch. 99, § 1, p. 185, was repealed by S.L. 1967, ch. 181, § 19.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Appeal.

Absent a showing of prejudice to defendant, by a continuance, the appellate court will not inquire into the preliminary proceedings. State v. Linn, 93 Idaho 430, 462 P.2d 729 (1969).

A magistrate’s decision that probable cause exists to bind a defendant over to the district court for trial on the charges against him or her should be overturned only upon a showing that the magistrate abused his discretion. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984); State v. Mitchell, 104 Idaho 493, 660 P.2d 1336, cert. denied, 461 U.S. 934, 103 S. Ct. 2101, 77 L. Ed. 2d 308 (1983). A magistrate’s commitment will not be deemed an abuse of discretion, and a district judge’s denial of a motion challenging probable cause will not be disturbed on appeal, if under any reasonable view of the evidence, including permissible inferences, it appears likely that an offense occurred and that the accused committed it. State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct. App. 1982), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

The denial of a motion to dismiss following a preliminary hearing will not be disturbed on appeal if, under any reasonable view of the evidence including permissible inferences, it appears likely that an offense occurred and that the accused committed it. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995).

Evidentiary Error.

Even if the magistrate errs in relying on evidence at the preliminary hearing that is ultimately determined to be inadmissible, the error is not a ground for vacating a conviction where the defendant receives a fair trial and is convicted, and there is sufficient evidence to sustain the conviction. State v. Mitchell, 104 Idaho 493, 660 P.2d 1336, cert. denied, 461 U.S. 934, 103 S. Ct. 2101, 77 L. Ed. 2d 308 (1983).

Illegal Postponement.

Fact that postponement is granted in violation of statute does not deprive court of jurisdiction. State v. Main, 37 Idaho 449, 216 P. 731 (1923).

Probable Cause.

Where state presented evidence at preliminary hearing that heifer reported lost by owner was same animal received by third person in exchange for labor performed, that county sheriff had learned during investigation that defendant had sold heifer to third party and had discovered owner’s brand on animal, and that third party produced bill of sale from defendant, there was sufficient probable cause under this section and§ 19-815 to bind defendant over to district court for trial. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

Purpose.

The purpose of a preliminary examination before a magistrate is to determine whether a crime has been committed and whether there is probable cause to believe that the defendant committed it. State v. O’Mealey, 95 Idaho 202, 506 P.2d 99 (1973).

A preliminary hearing is not a discovery tool but a means by which probable cause, which would indicate the commission of a crime, is discovered and a certified record of the hearing must be compiled if the information gathered at the hearing is to be used by a district court. State v. Ruddell, 97 Idaho 436, 546 P.2d 391 (1976). When the state charges a person with a felony, unless he is indicted by a grand jury, the defendant is entitled to a preliminary hearing to determine if there is sufficient evidence to warrant holding him to answer in the district court. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995).

At the preliminary hearing the state is not required to prove the defendant guilty beyond a reasonable doubt. Rather, it need only show that a crime was committed and that there is probable cause to believe the accused committed it. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995).

Waiver.

The right to a preliminary hearing can be waived, and a waiver made voluntarily, knowingly and intelligently is effective even in the absence of advice of counsel. Noel v. State, 113 Idaho 92, 741 P.2d 728 (Ct. App. 1987).

The defendant effectively waived compliance with the preliminary hearing requirement, where the district judge asked the defendant if he gave up the right to a preliminary hearing, the defendant indicated he had, and this question was preceded by an explanation of the right to a preliminary hearing. Noel v. State, 113 Idaho 92, 741 P.2d 728 (Ct. App. 1987).

Where a complaint alleges that the defendant has committed a felony, he has a right to a preliminary hearing. The purpose of the preliminary hearing is to determine whether there is probable cause to believe that the defendant committed the felony. A defendant who waives the right to a preliminary hearing waives the right to a probable cause determination regarding the charged felony. State v. Stewart, 149 Idaho 383, 234 P.3d 707 (2010).

If the defendant waives his right to a preliminary hearing, such waiver admits the existence of sufficient evidence to hold him to answer in the district court. State v. Villafuerte, 160 Idaho 377, 373 P.3d 695 (2016).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

The reference to “this code” near the end of this section originally read “this act” and referred to the 1864 enacting session laws. That 1864 act now is codified throughout title 19, Idaho Code.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Constitutionality.

This section is not unconstitutional as an infringement of the free press provisions of the first amendment to the United States Constitution and the open court mandate ofIdaho Const., Art. I, § 18. Cowles Publishing Co. v. Magistrate Court of First Judicial Dist., 118 Idaho 753, 800 P.2d 640 (1990).

Since preliminary hearings are presumptively open, and considering that openness of preliminary hearings plays a significant positive role in our society, a qualified first amendment right of public access attaches to preliminary hearings. Cowles Publishing Co. v. Magistrate Court of First Judicial Dist., 118 Idaho 753, 800 P.2d 640 (1990).

The right of public access to preliminary hearing can co-exist with the mandate of this section which requires a magistrate to close a preliminary hearing upon the request of the defendant; the directive of this section to close preliminary hearings is not in conflict with the first amendment right of access to preliminary hearings so long as the requirements of Press-Enter. Co. v. Superior Court , 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986), are satisfied and complied with by the magistrate court. Cowles Publishing Co. v. Magistrate Court of First Judicial Dist., 118 Idaho 753, 800 P.2d 640 (1990).

Presumption in Favor of Open Hearings.

The presumption remains that preliminary hearings will remain open absent the defendant’s request and an overriding interest in a fair trial; the right to an open public preliminary hearing and trial is a shared right of the accused and the public, with the common element and concern being the assurance of fairness, and, thus, only under unusually compelling circumstances should preliminary hearings be closed. Cowles Publishing Co. v. Magistrate Court of First Judicial Dist., 118 Idaho 753, 800 P.2d 640 (1990).

Refusal to Exclude.

The error of the committing magistrate in refusing to grant appellant’s motion for the exclusion of all persons under the provisions of this section, allowing a newspaper reporter and several other people to remain present, was a procedural irregularity and was not a prejudicial error requiring reversal of the cause. State v. McKenna, 78 Idaho 647, 309 P.2d 206 (1957).

Required Findings in Support of Closure.

Once a defendant requests that a preliminary hearing be closed pursuant to this section, the preliminary hearing may be closed if the magistrate makes the specific findings on the record that there is, first, a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent, and second, that reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights. Cowles Publishing Co. v. Magistrate Court of First Judicial Dist., 118 Idaho 753, 800 P.2d 640 (1990).

Cross References.

County stenographer’s presence may be required at preliminary examinations,§§ 31-2609, 31-2610.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Effective Dates.

Section 2 of S.L. 1971, ch. 73 declared an emergency. Approved March 8, 1971.

Certification.

Committing magistrate may amend his certificate to the depositions with leave of court at county seat although county seat is outside of his precinct. State v. McGann, 8 Idaho 40, 66 P. 823 (1901).

The transcript of a preliminary hearing must be certified as true and correct by a judicial officer or reporter, because failure to have the transcript certified will make it unacceptable for review by a higher court. State v. Ruddell, 97 Idaho 436, 546 P.2d 391 (1976).

Illegal Detention.

Under the circumstances where appellant had not been granted a preliminary hearing for 36 days nor allowed to contact his mother for over 30 days, it was incumbent on the trial court to have issued a writ of habeas corpus to inquire into the question of such imprisonment or restraint for full determination of the legality of his imprisonment or restraint in view of the constitutional guaranty of his right to a speedy and public trial. Johnson v. State, 85 Idaho 123, 376 P.2d 704 (1962).

Indigent Persons.

A preliminary hearing transcript, when alleged to be necessary to the defense, must be included among the services and facilities provided by the state to indigents under§ 19-852. State v. Kay, 108 Idaho 661, 701 P.2d 281 (Ct. App. 1985).

Provisions Mandatory.

This section is mandatory in its requirements as to a preliminary examination, and the district court has no jurisdiction to try a person on information until this section is complied with. State v. Braithwaite, 3 Idaho 119, 27 P. 731 (1891), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984); State v. Yturaspe, 22 Idaho 360, 125 P. 802 (1912); State v. Carlson, 23 Idaho 545, 130 P. 463 (1913), superseded by statute on other grounds as stated in, State v. Rutten, 73 Idaho 25, 245 P.2d 778 (1952).

Transcript.

Where a defendant, who was subsequently convicted of voluntary manslaughter entirely on the basis of circumstantial evidence, was denied a transcript of the preliminary hearing despite his request for such a transcript, the denial was prejudicial error under this section. State v. Coronado, 98 Idaho 421, 565 P.2d 1378 (1977).

Waiver.

After issuance of valid commitment and information filed, jurisdiction of district court does not depend on complaint before magistrate and defects therein are immaterial. State v. Main, 37 Idaho 449, 216 P. 731 (1923).

Defendant may waive his right to preliminary examination without advice of counsel, provided the waiver is made voluntarily, knowingly and intelligently. Smith v. State, 94 Idaho 469, 491 P.2d 733 (1971), overruled on other grounds, State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010).

The defendant effectively waived compliance with the preliminary hearing requirement, where the district judge asked the defendant if he gave up the right to a preliminary hearing, the defendant indicated he had, and this question was preceded by an explanation of the right to a preliminary hearing. Noel v. State, 113 Idaho 92, 741 P.2d 728 (Ct. App. 1987).

The right to a preliminary hearing can be waived, and a waiver made voluntarily, knowingly and intelligently is effective, even in the absence of advice of counsel. Noel v. State, 113 Idaho 92, 741 P.2d 728 (Ct. App. 1987).

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Burden of Proof.

The defendant is under no duty to present any evidence at the preliminary hearing, though he may do so, and the state has the burden of proof of meeting the requirements of the statute. State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971).

At the preliminary hearing the state is not required to prove the defendant guilty beyond a reasonable doubt. Rather, it need only show that a crime was committed and that there is probable cause to believe the accused committed it. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995).

Discharge on Habeas Corpus.

Upon petition for writ of habeas corpus, court can go back of order of commitment and inquire into question of probable cause. In re Baugh, 30 Idaho 387, 164 P. 529 (1917).

In General.

In a trial for obtaining money under false pretenses, where the defendant was charged with being an accomplice of another who had been discharged on preliminary examination, it was not error to instruct the jury that proceedings had in a preliminary examination do not constitute proof of either guilt or innocence of the person charged and dismissal of the criminal charge therein does not constitute a bar to a subsequent prosecution for the same offense, if additional proof should later become available. State v. Urie, 92 Idaho 71, 437 P.2d 24 (1968).

Probable Cause.

Court, in defendant’s aggravated assault case, erred by dismissing the charge where there was probable cause to try defendant on the charge, as there was substantial evidence that defendant intended to make a threat to a roommate during a game of Russian roulette. State v. Pole, 139 Idaho 370, 79 P.3d 729 (Ct. App. 2003).

Sufficiency of Evidence.

When the state charges a person with a felony, unless he is indicted by a grand jury, the defendant is entitled to a preliminary hearing to determine if there is sufficient evidence to warrant holding him to answer in the district court. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995).

The denial of a motion to dismiss following a preliminary hearing will not be disturbed on appeal if, under any reasonable view of the evidence, including permissible inferences, it appears likely that an offense occurred and that the accused committed it. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Appeals.

Failure of magistrate to specify the offense for which defendant was committed could not be reviewed by court on appeal where formal order of commitment did not appear in the transcript. State v. Rutten, 73 Idaho 25, 245 P.2d 778 (1952).

The decision of a magistrate, that there exists probable cause to bind a defendant over to district court for a trial on the charges, should be overturned only on a showing that the committing magistrate abused his discretion. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984). A magistrate’s commitment will not be deemed an abuse of discretion, and a district judge’s denial of a motion challenging probable cause will not be disturbed on appeal, if under any reasonable view of the evidence, including permissible inferences, it appears likely that an offense occurred and that the accused committed it. State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct. App. 1982), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

Failure to Endorse Commitment.

Fact that order of commitment is not endorsed on the deposition, does not deprive same of its validity, where order is reduced to writing and entered in the official docket of magistrate. State v. Clark, 4 Idaho 7, 35 P. 710 (1894); State v. Yturaspe, 22 Idaho 360, 125 P. 802 (1912); State v. Main, 37 Idaho 449, 216 P. 731 (1923).

Fact that magistrate’s commitment is in separate paper instead of being endorsed on deposition does not deprive court of jurisdiction. State v. Main, 37 Idaho 449, 216 P. 731 (1923).

In General.

Preliminary examination is not in any sense a trial but its only purpose is to ascertain whether a crime has been committed, and whether there is probable cause for believing that accused is guilty thereof and should be tried therefor. State v. Bond, 12 Idaho 424, 86 P. 43 (1906).

All requirements with respect to preliminary examinations were met when the defendant was accorded a preliminary examination in which the court determined that a felony had been committed and that there was probable cause to believe that the defendant had committed it, and the trial court could properly permit the addition of a count charging him with being a persistent violator without granting him a preliminary hearing on such additional allegation. State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967).

The defendant is under no duty to present any evidence at the preliminary hearing though he may do so, and the state has the burden of proof of meeting the requirements of the statute. State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971).

Multiplicity of Charges.

It is not fatal that committing magistrate held defendant to answer to a number of offenses charged in a complaint. If defendant is charged in an information with commission of a number of offenses he has ample opportunity on arraignment to object by demurrer or motion to elect and thus is not deprived of any substantial right by the joinder in the preliminary examination. State v. Bilboa, 33 Idaho 128, 190 P. 248 (1920).

Preliminary Hearings.

Respondent, having waived a preliminary hearing, was not in a position to complain of not being able to ascertain the facts on which the charge was based. State v. Hendricks, 80 Idaho 344, 330 P.2d 334 (1958).

When a preliminary hearing is had, the information thereafter filed in the district court does not depend on the complaint filed with the committing magistrate but on the commitment and the facts shown by the preliminary hearing. State v. Hendricks, 80 Idaho 344, 330 P.2d 334 (1958). In cases where a defendant, accused of a public offense triable in the district court, waives preliminary hearing, no depositions to support the charge in the district court are required. The accused in such circumstances is held to answer for the crime charged in the criminal complaint filed with the committing magistrate. State v. Hendricks, 80 Idaho 344, 330 P.2d 334 (1958).

A defendant charged with a crime and having been arrested and brought before a magistrate, where the offense charged is one that is triable in the district court, may demand a preliminary hearing or waive the right to such hearing. State v. Hendricks, 80 Idaho 344, 330 P.2d 334 (1958).

The state is not required to produce all of its evidence at a preliminary hearing, as it is sufficient if the state produces enough to satisfy the committing magistrate that a crime has been committed and there is reasonable or probable cause to believe the accused committed it. State v. O’Bryan, 96 Idaho 548, 531 P.2d 1193 (1975).

At the preliminary hearing, the state is not required to prove the defendant guilty beyond a reasonable doubt. Rather, it need only show that a crime was committed and that there is probable cause to believe the accused committed it. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995).

Sufficiency of Evidence.

On preliminary examination, it is only necessary for state to introduce sufficient evidence to satisfy magistrate that a public offense has been committed and that defendant is guilty thereof in order to justify magistrate in holding defendant to answer. In re Sly, 9 Idaho 779, 76 P. 766 (1904).

In preliminary examination, state is not bound to produce all of its evidence or to establish guilt of accused “beyond a reasonable doubt.” If it produces evidence sufficient to satisfy committing magistrate that a crime has been committed, and that there is reasonable or probable cause to believe that petitioner committed it, it is the duty of magistrate to hold petitioner for trial. In re Squires, 13 Idaho 624, 92 P. 754 (1907); State v. Layman, 22 Idaho 387, 125 P. 1042 (1912).

Petitioner was properly held on charge of burglary where evidence at preliminary hearing showed that he pried open a locked window and entered darkened house of people away from home though police stationed inside arrested him before he could steal anything. Ex parte Seyfried, 74 Idaho 467, 264 P.2d 685 (1953).

If the state produces evidence sufficient to satisfy the examining magistrate that a crime has been committed and to lead a reasonable person to believe the accused party has probably or likely committed the offense charged, it is the duty of the magistrate to hold the accused for trial. Martinez v. State, 90 Idaho 229, 409 P.2d 426 (1965).

Evidence that defendant shot and killed the victim was sufficient to sustain action of the probate judge in binding defendant over to the district court on a charge of first degree murder even though the evidence also showed that defendant did so while intoxicated and in a short altercation. Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967).

Magistrate’s decision that there existed probable cause to hold defendant for trial on charge of unlawful possession of a controlled substance with the intent to deliver was abuse of discretion where there was no evidence at the preliminary hearing before the magistrate of the intent of the defendant to deliver and such intent could not be inferred solely from the defendant’s possession of a controlled substance. State v. O’Mealey, 95 Idaho 202, 506 P.2d 99 (1973). The state, at a preliminary examination, is not required to show the defendant guilty beyond a reasonable doubt; it need only prove that a crime was committed and that there is probable cause to believe the accused committed it. State v. Greensweig, 102 Idaho 794, 641 P.2d 340 (Ct. App. 1982).

Where state presented evidence at preliminary hearing that heifer reported lost by owner was same animal received by third person in exchange for labor performed, that county sheriff had learned during investigation that defendant had sold heifer to third party and had discovered owner’s brand on animal, and that third party produced bill of sale from defendant, there was sufficient probable cause under§ 19-804 and this section to bind defendant over to district court for trial. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

When the state charges a person with a felony, unless he is indicted by a grand jury, the defendant is entitled to a preliminary hearing to determine if there is sufficient evidence to warrant holding him to answer in the district court. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995).

The denial of a motion to dismiss following a preliminary hearing will not be disturbed on appeal if, under any reasonable view of the evidence including permissible inferences, it appears likely that an offense occurred and that the accused committed it. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995).

Court, in defendant’s aggravated assault case, erred by dismissing the charge where there was probable cause to try the defendant on the charge, as there was substantial evidence that defendant intended to make a threat to a roommate during a game of Russian roulette. State v. Pole, 139 Idaho 370, 79 P.3d 729 (Ct. App. 2003).

Appeal.

Where district court remanded case to magistrate division on ground that there was insufficient evidence before magistrate to establish probable cause, because affidavit of banker was hearsay and defendant was not able to cross-examine witness, such decision of district court was not appealable. State v. Jennings, 95 Idaho 724, 518 P.2d 1186 (1974).

A dismissal of charges under this section was not an appealable order. State v. Holtry, 98 Idaho 140, 559 P.2d 756 (1977).

Where, prior to trial, the defendant moved to dismiss one of the counts against him on the grounds that the evidence produced at the preliminary hearing did not establish probable cause, the trial court’s denial of the motion to dismiss that count was not an appealable order, since the defendant was not appealing from a judgment of conviction. State v. Garner, 103 Idaho 468, 649 P.2d 1224 (Ct. App. 1982).

A magistrate’s commitment will not be deemed an abuse of discretion, and a district judge’s denial of a motion challenging probable cause will not be disturbed on appeal, if under any reasonable view of the evidence, including permissible inferences, it appears likely that an offense occurred and that the accused committed it. State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct. App. 1982), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

Burden of Proof.

The state at a preliminary examination is not required to show the defendant guilty beyond a reasonable doubt; it need only prove that a crime was committed and that there is probable cause to believe the accused committed it. State v. Greensweig, 102 Idaho 794, 641 P.2d 340 (Ct. App. 1982).

Conditional Pleas.

Where defendant entered a conditional plea specifically reserving the right to appeal the admission of evidence admitted during his preliminary hearing, and the evidence in question was improperly admitted, judgment of conviction was reversed. State v. Horsley, 117 Idaho 920, 792 P.2d 945 (1990).

Evidence.

Where, at preliminary hearing on charge of unlawful possession of a controlled substance with intent to deliver, no testimony was offered of the actual, constructive or attempted transfer of a controlled substance from the defendant to any other person and there was no evidence of intent to transfer, district court properly sustained defendant’s motion to dismiss the information. State v. O’Mealey, 95 Idaho 202, 506 P.2d 99 (1973).

Although the law in effect at the time of defendant’s prosecution for lewd conduct with a minor under 16 required corroboration of the victim’s testimony, the corroboration could be either direct evidence or evidence of surrounding circumstances clearly corroborating her statements; therefore, where the character or reputation of the minor victim was unimpeached for truth and chastity and her testimony was not contradictory nor inconsistent with the admitted facts, sufficient corroborating evidence to show that defendant was the perpetrator of the crime was supplied by his ownership of a car described by the minor victim, the identification of defendant by another girl who was victimized by defendant in an almost identical crime, and evidence of other surrounding circumstances clearly corroborating the victim’s description of the acts making up the crime. State v. Greensweig, 102 Idaho 794, 641 P.2d 340 (Ct. App. 1982).

Sufficiency of Evidence.

The finding of probable cause must be based upon substantial evidence with regard to every material element of the offense charged, and this test may be satisfied through circumstantial evidence and reasonable inferences to be drawn from that evidence by the committing magistrate. State v. Munhall, 118 Idaho 602, 798 P.2d 61 (Ct. App. 1990).

Where an officer involved in a vehicle search performed at the police station testified that he had extensive experience in drug enforcement, where he stated that, in his opinion, the chemicals and equipment found in the vehicle could be used to manufacture methamphetamine, where the chemicals and equipment were found in a vehicle occupied by defendants, and where the state submitted evidence that in preparation for departure, defendant and co-defendant had left with an empty vehicle and had returned to retrieve another co-defendant with a vehicle loaded with the “stuff,” the state produced sufficient evidence to support the probable inference that there was an agreement between the parties, and the magistrate did not err in finding probable cause to bind defendant over to district court for trial on charges of conspiracy to manufacture a controlled substance. State v. Munhall, 118 Idaho 602, 798 P.2d 61 (Ct. App. 1990). It was not error for the district court to deny defendant’s pre-trial motion to dismiss where evidence found in defendant’s bedroom included zig zag papers, a bong pipe with burnt residue, twenty-six baggies containing green leafy residue, four baggies beside twenty dollar bills, books about growing marijuana and numerous pieces of paper bearing only first names and telephone numbers, and thus was sufficient to allow the magistrate to conclude there was probable cause to believe the crimes charged had occurred and that defendant had participated in the manufacture and possession of a controlled substance as a finding of probable cause need only be based on substantial evidence under Idaho R. Crim. P. 5.1(b). State v. Wengren, 126 Idaho 662, 889 P.2d 96 (Ct. App. 1995).

Time for Challenge.

A defendant may invoke the federal Constitution to challenge his detention without probable cause before conviction, but may not do so after a judgment of conviction has been entered. However, a defendant’s remedies in Idaho are not confined to those attending rights secured by the federal Constitution; Art. 1, § 8 of the Idaho Constitution, the implementing statutes, and the interpretive case law have extended the time for reviewing challenges to the sufficiency of proof of probable cause, beyond the conviction cutoff imposed for federal constitutional challenges. State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct. App. 1982), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

Cross References.

Offenses not bailable,§ 19-2903.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

The bracketed insertion near the middle of the section was added by the compiler to conform to the statutory citation style.

Cross References.

Bailable offenses,§ 19-2903.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

The bracketed insertion near the middle of the section was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Amendments.

The 2007 amendment, by ch. 90, deleted the reference to the twentieth century from the date in the form.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Bail generally,§ 19-2901 et seq.

Bail for witnesses, Idaho R. Crim. P. 46.1.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Bail generally,§ 19-2901 et seq.

Bail for witnesses, Idaho R. Crim. P. 46.1

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Bail generally,§ 19-2901 et seq.

Bail for witnesses, Idaho R. Crim. P. 46.1

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Bail generally,§ 19-2901 et seq.

Bail for witnesses, Idaho R. Crim. P. 46.1

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Right of person held to answer public offense to have witnesses examined conditionally,§ 19-3101.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cited

Before deposition taken conditionally can be admitted in evidence, state must show that deposition was taken before magistrate who conducted the preliminary examination or judge of court to which defendant has been held for trial; that it was shown to such magistrate or judge, on oath, that there was reason to believe that such witness whose deposition was sought would not appear and testify unless security was given; that order was made requiring such witness to enter into a written undertaking, with sureties; that, thereupon it was shown that witness was unable to procure sureties; that defendant had been advised of his right to counsel and to be represented by such; that defendant was present in person and by counsel, if he desired counsel, or that he had notice of such examination, if on bail; that examination was conducted in same manner as examination before committing magistrate; that witness is unable to attend by reason of his death, infirmity, sickness, or insanity, or of absence from the state, and that due diligence has been exercised to procure presence of such witness at trial. State v. Zarlenga, 14 Idaho 305, 94 P. 55 (1908). Cited Territory v. Evans, 2 Idaho 651, 23 P. 232 (1890); State v. Mee, 102 Idaho 474, 632 P.2d 663 (1981).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Idaho Law Review.

Idaho Law Review. — Cosmetic Repair to a Crumbling Foundation: A Critical Examination of Idaho’s Most Recent Indigent Defense Legislation, Comment. 52 Idaho L. Rev. 669 (2016).

Cross References.

Department of self-governing agencies,§ 67-2601 et seq.

Office of state appellate public defender,§ 19-869 et seq.

Amendments.

The 2018 amendment, by ch. 161, in subsection (1), substituted “nine (9) members” for “seven (7) members” in the introductory paragraph, substituted “Six (6) representatives” for “Four (4) representatives” in the introductory paragraph for paragraph (c) and substituted “Two (2) representatives” for “One (1) representative” in paragraphs (c)(i) and (c)(ii).

Compiler’s Notes.

For further information on the Idaho association of counties, referred to in paragraph (1)(c)(i), see http://www.idcounties.org/ .

For further information on the Idaho juvenile justice commission, referred to in paragraph (1)(c)(iv), see http://ijjc.idaho.gov .

Idaho Law Review.

Idaho Law Review. — Cosmetic Repair to a Crumbling Foundation: A Critical Examination of Idaho’s Most Recent Indigent Defense Legislation, Comment. 52 Idaho L. Rev. 669 (2016).

Cross References.

Administrative procedure act,§ 67-5201 et seq.

Idaho rules of professional conduct, see Volume 2 of the Idaho Court Rules.

Amendments.

The 2016 amendment, by ch. 195, in subsection (1), rewrote paragraphs (a) and (b), which formerly read: “(a) Promulgate rules in accordance with the provisions of chapter 52, title 67, Idaho Code, establishing the following: (i) Training and continuing legal education requirements for defending attorneys, which shall promote competency and consistency in case types including, but not limited to, criminal, juvenile, abuse and neglect, post-conviction, civil commitment, capital and civil contempt; and (ii) Uniform data reporting requirements for the annual reports submitted pursuant to section 19-864, Idaho Code. The data reported shall include caseload, workload and expenditures. (b) On or before January 20, 2015, and by January 20 of each year thereafter as deemed necessary by the commission, make recommendations to the Idaho legislature for legislation on public defense system issues including, but not limited to: (i) Core requirements for contracts between counties and private attorneys for the provision of indigent defense services and proposed model contracts for counties to use; (ii) Qualifications and experience standards for the public defender and defending attorneys; (iii) Enforcement mechanisms; and (iv) Funding issues including, but not limited to: 1. Training and continuing legal education for defending attorneys; 2. Data collection and reporting efforts; and 3. Conflict cases”, added present paragraphs (c) and (d), and redesignated former paragraph (c) as paragraph (e); and added paragraphs (2)(d) through (2)(f).

The 2018 amendment, by ch. 162, inserted “or a county, through its board of county commissioners” in the first sentence of paragraph (2)(e).

The 2019 amendment, by ch. 35, substituted “indigent defense financial assistance” for “indigent defense grants” at the end of paragraphs (1)(b)(ii) and (1)(c) and near the middle of the first sentence in paragraph (1)(d).

Idaho Law Review.

Idaho Law Review. — Cosmetic Repair to a Crumbling Foundation: A Critical Examination of Idaho’s Most Recent Indigent Defense Legislation, Comment. 52 Idaho L. Rev. 669 (2016).

Cross References.

Capital crimes defense fund,§ 19-863A.

Right to assignment of counsel, Idaho R. Crim. P. 44.

Amendments.

The 2013 amendment, by ch. 220, changed the designated scheme in the section from letters to numbers; added subsection (2) and redesignated the subsequent subsections; substituted “Indigent person’” for “Needy person’” and inserted “pursuant to section 19-854, Idaho Code” in subsection (4); and rewrote subsection (5).

The 2016 amendment, by ch. 195, added subsections (1), (5), (6), (8), and (10), and redesignated the other subsections accordingly; and substituted “an indigent defense provider” for “the office of public defender, contracted by the county” in present subsection (2).

The 2019 amendment, by ch. 35, substituted “indigent defense financial assistance” for “indigent defense grants” near the middle of the first sentence in subsection (8); and substituted “indigent defense financial assistance” for “indigent defense grant” near the beginning of subsection (10).

Compiler’s Notes.

The term “this act” in the introductory paragraph and in subsection (4) refers to S.L. 1967, Chapter 181, which is compiled as§§ 19-851 to 19-855, 19-857 to 19-862, 19-863, 19-864 to 19-866, and 19-1512.

Effective Dates.

Section 2 of S.L. 1972, ch. 27 declared an emergency. Approved February 28, 1972.

Section 2 of S.L. 1972, ch. 385 declared an emergency. Approved March 31, 1972.

Denial of Counsel.

Absent a knowing and intelligent waiver, no sentence of incarceration may be imposed when counsel has been denied a defendant found needy [now indigent] after a review conducted in full compliance with§§ 19-851 and 19-854. Mahler v. Birnbaum, 95 Idaho 14, 501 P.2d 282 (1972).

Defendant’s failure to produce proof of liability insurance would not require the court to appoint counsel because the offense did not carry a sufficient penalty to classify it as a “serious” offense within§ 19-852. State v. Hardman, 120 Idaho 667, 818 P.2d 782 (Ct. App. 1991) (see 2013 amendment of this section). The magistrate court erred by denying defendant’s right to counsel when it did not appoint counsel to help with his defense to the charge of delaying and obstructing a peace officer. State v. Hardman, 120 Idaho 667, 818 P.2d 782 (Ct. App. 1991).

Indigent Person.

— Burden of Proof.

The initial burden rests upon defendant to demonstrate to the court’s satisfaction his inability to advance or secure costs to pay for transcript; once defendant makes such a showing, the state must come forward with substantial factual evidence of defendant’s ability to pay, in whole or in part, the necessary costs. State v. Randles, 109 Idaho 933, 712 P.2d 634 (1985).

— Indigency Not Shown.

The district court did not abuse its discretion in denying motion for county payment of transcript costs on appeal, where defendants were purchasing property valued at $10,600 and they owned two vehicles worth $600. State v. Randles, 109 Idaho 933, 712 P.2d 634 (1985).

Right to Counsel.

One convicted of driving under the influence of intoxicating liquor was not prejudiced by the failure of the state to provide him with counsel immediately after his arrest, thereby preventing his counsel from securing a timely test of his blood for alcoholic content. State v. Reyna, 92 Idaho 669, 448 P.2d 762 (1968).

The district court properly declined to appoint counsel to represent accused at his post-conviction relief hearing, where the accused refused to furnish further information about his financial condition and the pension which he admitted he received. Quinlivan v. State, 94 Idaho 334, 487 P.2d 928 (1971).

When defendant and 15 other prison inmates were placed in maximum security during the sheriff’s investigation of the murder of a fellow inmate, the matter was still in its investigatory stage and not its accusatory stage; thus, defendant did not then acquire the right to have the public defender informed of his detention nor the right to have counsel represent him. State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975), cert. denied, 423 U.S. 1089, 96 S. Ct. 881, 47 L. Ed. 2d 99 (1976).

Decisions Under Prior Law

Appeals.

Where defendant appeals from the lower court to the district court and he is poor and unable to procure the services of counsel, it is the duty of the district court to appoint counsel for his defense, even though proceedings were upon a “complaint” and not upon an indictment or “information.” State v. Eikelberger, 70 Idaho 271, 215 P.2d 996 (1950).

Attorney Fees Limited.

The allowance for attorney fees and expenses made by the former section was limited to the trial of the case and not to proceedings for writ of habeas corpus or writ of error coram nobis. State v. Thurlow, 85 Idaho 96, 375 P.2d 996 (1962).

Request for Attorney’s Fees.

The request for attorney fees must be presented to the trial court in the first instance before such request is made to the supreme court. State v. Thomas, 82 Idaho 473, 355 P.2d 674 (1960).

Right to Counsel.

It is incumbent upon the court, upon an arraignment for an offense such as lewd and lascivious conduct, to ascertain if the defendant is financially capable of hiring counsel and to advise the defendant in order that he may intelligently respond to the court’s interrogation upon this subject. Unless informed of these statutory rights, it is conceivable that defendant would not know of their existence and his inability to employ counsel would operate to deny him the opportunity to assert defenses to the charge in violation of his rights of due process. State v. Thurlow, 85 Idaho 96, 375 P.2d 996 (1962).

Where certain factors exist which may render state criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair, the constitution requires the accused must have legal assistance at his trial, such factors being the age and education of the defendant, the conduct of the court, the complicated nature of the offense charged and the possible defenses thereto. State v. Thurlow, 85 Idaho 96, 375 P.2d 996 (1962).

ALR.

Construction of state statutes providing for compensation of attorney for services under appointment by court in defending indigent accused. 18 A.L.R.3d 1074.

Construction and effect of statutes providing for office of public defender. 36 A.L.R.3d 1403.

Attorney’s refusal to accept appointment to defend indigent, or to proceed in such defense, as contempt. 38 A.L.R.3d 1221.

Determination of indigency of accused entitling him to appointment of counsel. 51 A.L.R.3d 1108. Accused’s right to choose particular counsel appointed to assist him. 66 A.L.R.3d 996.

Accused’s right to represent himself in state criminal proceeding — Modern state cases. 98 A.L.R.3d 13.

Criminal defendant’s representation by person not licensed to practice law as violation of right to counsel. 19 A.L.R.5th 351.

Amendments.

The 2013 amendment, by ch. 220, changed the designation scheme throughout the section and updated internal references throughout the section in conformance with that change; substituted “indigent person” for “needy person” or similar language in the section heading and throughout the section; in subsection (1), deleted “18-214” following “18-212” and substituted “66-404 or 66-406” for “or 66-409” in the introductory paragraph and inserted “indigency pursuant to section 19-854, Idaho Code” in paragraph (b).

Legislative Intent.

Section 1 of S.L. 1981, ch. 114 read: “It is hereby declared by the legislature of the state of Idaho that its mentally disabled citizens are entitled to be diagnosed, cared for, and treated in as expedient a manner possible consistent with their legal rights, in a setting no more restrictive than their protection and the protection of society require, for a period no longer than reasonably necessary for diagnosis, care, treatment and protection, and to remain at liberty or be cared for privately except when necessary for the protection of themselves or society.”

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Additional Counsel.

Where defendant was provided with an attorney at public expense, his request for additional counsel was a matter committed to the sound discretion of the trial court. State v. Dallas, 109 Idaho 670, 710 P.2d 580 (1985).

Application.

By its own terms, this section applies only to criminal and commitment proceedings, not civil actions such as habeas proceedings. Quinlan v. Idaho Comm’n for Pardons & Parole, 138 Idaho 726, 69 P.3d 146 (2003).

Attorney Fees.

An application for attorney’s fees for counsel appointed to represent a defendant should not be considered by the supreme court on appeal from defendant’s conviction until such application has first been made to the trial court. State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967).

Where an attorney rendered the defense valuable services, despite the fact that he had not been appointed defense counsel, the award of $4,000 as attorney fees was not clearly erroneous as insufficient, even though the attorney invested a great deal of time and effort in the case. State v. Dallas, 109 Idaho 670, 710 P.2d 580 (1985).

Child Psychologist.

The court did not abuse its discretion by denying defendant’s request for appointment of a child psychologist to examine a young victim regarding the victim’s ability to perceive events correctly and to report them accurately, as during the trial there was no credible evidence indicating that the child was impaired with regard to these abilities. State v. Bingham, 116 Idaho 415, 776 P.2d 424 (1989), overruled on other grounds, State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992).

Choosing Counsel.

An indigent’s right to court-appointed counsel includes the right to effective assistance of counsel, but it does not necessarily include the right to counsel of one’s own choosing. State v. Browning, 121 Idaho 239, 824 P.2d 170 (Ct. App. 1992).

Counsel During Probation Revocation Hearing.

There is a federal constitutional right to be represented by retained counsel at a probation revocation hearing; accordingly, a needy person has the right to be represented by appointed counsel at such a hearing under this section. State v. Young, 122 Idaho 278, 833 P.2d 911 (1992).

Denial of Counsel.

Defendant’s failure to produce proof of liability insurance would not require the court to appoint counsel because the offense did not carry a sufficient penalty to classify it as a “serious” offense within this section. State v. Hardman, 120 Idaho 667, 818 P.2d 782 (Ct. App. 1991) (see 2013 amendment of§ 19-851).

— Failure to Address Request.

The district court did not abuse its discretion when it denied the defendant’s request for court-appointed counsel, where the only issue before the court was a claim that defense counsel should have filed an Idaho R. Crim. P. 35 motion and the court found that claim to be frivolous and one that a “reasonable person with adequate means would not bring.” Cowger v. State, 132 Idaho 681, 978 P.2d 241 (Ct. App. 1999). — Failure to Address Request.

— Failure to address request.

Where the district court was aware that a petitioner had been incarcerated for over five years and was represented by a public defender in the previous proceeding, the district court erred in not addressing petitioner’s request for a court-appointed attorney. Henderson v. State, 123 Idaho 51, 844 P.2d 33 (Ct. App. 1992), superseded by statute on other grounds as stated in, Follinus v. State, 127 Idaho 897, 908 P.2d 590 (Ct. App. 1995).

Where defendant’s Idaho R. Crim. P. 35 motion was without merit, he was not entitled to appointment of counsel to represent him on the motion, and the district court’s error in failing to address defendant’s request for counsel was harmless. State v. Wade, 125 Idaho 522, 873 P.2d 167 (Ct. App. 1994).

— Improper.

The magistrate court erred by denying defendant’s right to counsel, when it did not appoint counsel to help with his defense to the charge of delaying and obstructing a peace officer. State v. Hardman, 120 Idaho 667, 818 P.2d 782 (Ct. App. 1991).

Although§ 19-4904, as amended, no longer mandates appointment of counsel in post-conviction proceedings, this section provides that a needy person convicted of a serious crime is entitled to be represented unless the court determines that the proceeding is frivolous. Therefore, the district court erred by denying appointment of counsel, by not mentioning this section, and by finding that defendant’s petition for post-conviction relief was frivolous. Brown v. State, 135 Idaho 676, 23 P.3d 138 (2001), superseded by statute on other grounds as stated in, Charboneau v. State, 140 Idaho 789, 102 P.3d 1108 (2004).

Defendant and his wife, whose duty of support to defendant required her to help pay for his defense, had insufficient resources to provide payment for an attorney and other necessary expenses to defend against his criminal charges; thus, defendant was entitled to court-appointed counsel for his jury trial. State v. Suiter, 138 Idaho 662, 67 P.3d 1274 (Ct. App. 2003).

Trial court erred in summarily dismissing pro se inmate’s application for post-conviction relief without first giving notice of perceived deficiencies in the pleading and appointing counsel to assist the inmate in developing the claims to present a viable basis for relief. Newman v. State, 140 Idaho 491, 95 P.3d 642 (Ct. App. 2004).

Effectiveness of Counsel.

Where the record was completely devoid of any hint of counsel’s incompetence or his alleged inability to render effective assistance of counsel, the court was not required to conduct a detailed inquiry into the question of counsel’s lack of “desire” to be competent or into the source of any attorney-client conflict; furthermore the trial judge should not be required to act as advocate for the defendant in a criminal proceeding, for his only obligation was to afford defendant a full and fair opportunity to present the facts and reasons in support of his motion for substitution of counsel after having been made aware by the court of the problems involved. State v. Clayton, 100 Idaho 896, 606 P.2d 1000 (1980). Where record indicated that a plea resulted from negotiations with the state during which the state agreed to reduce a felony grand theft charge to a misdemeanor, in exchange for a guilty plea on the delivery charge, these facts did not support a claim of ineffective assistance of counsel on the basis the defendant was not advised of defenses she might have had. State v. Marks, 119 Idaho 64, 803 P.2d 565 (Ct. App. 1991).

Appeal for post-conviction relief on ground of ineffective assistance of counsel in that counsel was not effective, because he failed to file a petition for review to the supreme court following court of appeals’ opinion arguing that his conviction should be reentered anew, since he has not been denied an appeal as the stage of appellate process he challenges is the last discretionary step, not the first step, which is a matter of right. Hernandez v. State, 127 Idaho 690, 905 P.2d 91 (Ct. App. 1995).

Appeal for post-conviction relief on ground of ineffective assistance of counsel in that counsel was not effective because he failed to file a petition for review to the supreme court following court of appeals’ opinion, seeking an extension of the time limit for filing petition of review with supreme court was denied for court of appeals could not waive the time constraints of Idaho App. R. 118 on behalf of the Supreme Court which alone has the authority to suspend the time limits surrounding the filing of a petition for review. Hernandez v. State, 127 Idaho 690, 905 P.2d 91 (Ct. App. 1995).

Where defendant did not include in the appeal from his convictions any issue that the court of appeals resolved unfavorably to him that could be the basis for a collateral attack in the federal courts, he has not shown the prejudice necessary to establish a successful claim of ineffective assistance of counsel based upon counsel’s failure to petition supreme court for review of court of appeals’ decision. Hernandez v. State, 127 Idaho 685, 905 P.2d 86 (1995).

Where defendant, after being told about lineup, requested to speak with an attorney whereupon the public defenders was called and after detention order was read to the defender he spoke to defendant telling him to cooperate in the lineup but not to answer any questions, it was more appropriate to apply a rule requiring the defendant to show that prejudice resulted from the alleged ineffectiveness of his counsel in not attending the lineup rather that to apply a per se rule that prejudice must be presumed to exist when counsel fails to attend a pre-indictment lineup. Boman v. State, 129 Idaho 520, 927 P.2d 910 (Ct. App. 1996).

Based upon the facts of this case, it was more appropriate to apply a rule requiring the defendant to show that prejudice resulted from the alleged ineffectiveness of his counsel, rather than to apply a per se rule that prejudice must be presumed to exist when counsel fails to attend a pre-indictment lineup. Boman v. State, 129 Idaho 520, 927 P.2d 910 (Ct. App. 1996).

Petitioner suffered no prejudice from his appellate counsel’s failure to consult with him about filing a petition for review within the time period specified in Idaho App. R. 118, because the time period for filing a petition for review is not jurisdictional. Pierce v. State, 142 Idaho 32, 121 P.3d 963 (2005).

No conflict existed that required the disqualification of the entire county public defender’s office where defendant was represented by a public defender on a charge of murdering his wife and a new attorney with the public defender’s office had previously represented defendant’s mother-in-law in civil litigation directly related to his wife’s death. State v. Severson, 147 Idaho 694, 215 P.3d 414 (2009).

Establishing Status.

This section inherently requires that a person requesting the aid of court appointed counsel will furnish the court with all information for its intelligent determination of the extent of individual’s need. Quinlivan v. State, 94 Idaho 334, 487 P.2d 928 (1971).

Expert Witness.

Judge did not abuse his discretion by denying defendant’s request for funds to hire a third expert, where he found that the second expert was competent and willing to adequately provide the services sought by defendant in preparation of his defense. State v. Brackett, 160 Idaho 619, 377 P.3d 1082 (Ct. App. 2016), cert. denied, — U.S. —, 137 S. Ct. 1076, 197 L. Ed. 2d 192 (2017).

Fugitive from Another Jurisdiction.

The fact that the Idaho peace officer making the complaints alleged that a person has committed a public offense in another jurisdiction, and is a fugitive therefrom, does not make it any less a complaint of “a public offense.” Struve v. Wilcox, 99 Idaho 205, 579 P.2d 1188 (1978), appeal dismissed and cert. denied, 439 U.S. 1123, 99 S. Ct. 1037, 59 L. Ed. 2d 84 (1979).

Habeas Corpus.

Magistrate judge was correct in denying a habeas petitioner’s request for counsel. Quinlan v. Idaho Comm’n for Pardons & Parole, 138 Idaho 726, 69 P.3d 146 (2003).

Harmless Error.

Although district court committed error in failing to act upon defendant’s motion for appointed counsel before the court addressed the merits of his application for post-conviction relief, that error was harmless because defendant’s alleged claims were time-barred more than a year before his application was filed and therefore frivolous. Swisher v. State, 129 Idaho 467, 926 P.2d 1314 (Ct. App. 1996).

In General.

This section includes within its scope the Fourteenth Amendment requirements of due process and equal protection, as they apply to indigent defendants. The equal protection clause only requires a state to provide a defendant with “the basic tools” of an adequate defense or appeal, when those tools are available for a price to others. It does not require a state to provide a defendant with anything that he might desire for his defense merely because it may be obtained by a more financially solvent defendant; a defendant’s request for expert or investigative services should be reviewed in light of all the circumstances and be measured against the standard of fundamental fairness embodied in the due process clause. State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982).

Necessary Services.

It is incumbent upon the trial court to inquire into the needs of the defendant and the circumstances of the case, and then make a determination of whether an adequate defense will be available to the defendant without the requested expert or investigative aid. If the answer is in the negative, then the services are necessary and must be provided by the state. State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982).

Private Investigator.

In a murder prosecution, it was not error for the court to refuse to allow the defendant the services of a private investigator under this section for the purpose of checking numerous witnesses where he was already allowed the services of two attorneys, who still had the bulk of their trial preparation ahead of them when the motion was made, and where the motion merely stated in conclusory fashion that the number of witnesses involved precluded effective preparation of counsel. State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. denied, 401 U.S. 942, 91 S. Ct. 947, 28 L. Ed. 2d 223 (1971).

Reimbursement.

The district court erred by ordering defendant to reimburse the county public defender office for its services rendered, because Idaho law requires that a defendant presently have the means to pay for an attorney’s services before a reimbursement award can be entered. State v. Weaver, 135 Idaho 5, 13 P.3d 5 (Ct. App. 2000).

Requests for Assistance.

This section does not require an ex parte application for assistance such that a request for assistance in open court is error, nor does it require that an independent judge be appointed by the trial judge to rule on requests for financial and expert assistance. State v. Wood, 132 Idaho 88, 967 P.2d 702 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798 (1999).

Scientific Tests.

Where defendant was charged with possession of methamphetamine, district court did not err by denying his motion for DNA testing of syringe and re-testing of substance that the state’s tests found to be methamphetamine. Defendant failed to make showing that his knowing possession of the methamphetamine and syringe was likely to be a significant issue at trial such that additional testing at the public expense was required as a matter of due process. State v. Martin, 146 Idaho 357, 195 P.3d 716 (Ct. App. 2008).

Self-Representation.

Although a defendant has the right to reject court appointed counsel and conduct his own defense, since such a decision amounts to a waiver of the right to counsel, the defendant should be made aware of the problems inherent in self-representation, so that such waiver is knowingly and intelligently made. State v. Clayton, 100 Idaho 896, 606 P.2d 1000 (1980).

Transcript.

While the parameters of the right of a criminal defendant to pretrial services and facilities is not particularly defined, a transcript of the preliminary hearing, when alleged to be necessary to the defense, must certainly be included among those services and facilities provided by the state under the statute. State v. Coronado, 98 Idaho 421, 565 P.2d 1378 (1977).

Where a defendant who was convicted of voluntary manslaughter on the basis of circumstantial evidence was denied a transcript of the evidence taken in a preliminary hearing, the denial of the defendant’s request for such a transcript was prejudicial error under this section. State v. Coronado, 98 Idaho 421, 565 P.2d 1378 (1977).

The trial court did not commit reversible error in denying the defendant’s request for the allowance of public funds to obtain a transcript of a pretrial mental evaluation hearing, where there was nothing in the record to indicate that the prosecution intended to call the psychiatrists or psychologists as witnesses, that the witnesses had any testimony favorable to the defense, or that the defendant intended to call them as hostile witnesses. Therefore, there was little reason for the trial court to consider the transcript of the prior proceeding to have any relevance at trial. State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982).

A preliminary hearing transcript, when alleged to be necessary to the defense, must be included among the services and facilities provided by the state to indigents under this section. State v. Kay, 108 Idaho 661, 701 P.2d 281 (Ct. App. 1985).

Use of Public Funds.

Defendant in a murder prosecution was not denied his right to effective assistance of counsel by the court’s refusal to allocate public funds for a community survey to determine whether defendant could obtain a fair and impartial trial in the county, since defendant had the opportunity to examine each juror upon voir dire as to bias and prejudice and the opportunity to present to the trial court all materials which he believed prejudicial. State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975), cert. denied, 423 U.S. 1089, 96 S. Ct. 881, 47 L. Ed. 2d 99 (1976).

The psychiatric examinations available to a defendant under§ 18-211 and this section were sufficient to enable him to evaluate an asserted insanity defense and were likewise sufficient to satisfy the constitutional demands of fundamental fairness. Accordingly, where, notwithstanding some apparent irregularities in preparing and filing the evaluation report, the defendant had already received an adequate examination at state expense, the trial court did not err in exercising its discretion to deny the defendant funds for an additional psychiatric examination. State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982) (decision prior to 1982 enactment of§ 18-207).

Cross References.

Uniform post-conviction procedure act,§ 19-4901 et seq.

Amendments.

The 2013 amendment, by ch. 220, changed the designation scheme throughout the section; substituted “66-404 or 66-406” for “or 66-409” in the introductory paragraph in subsection (1); substituted “indigent person” for “needy person” in paragraph (1)(a) and subsection (2); substituted “defending attorney” for “public defender” in paragraph (1)(b) and subsections (3) and (4); and deleted “or assigned attorney, as the case may be” preceding “shall represent” in subsection (4). The 2014 amendment, by ch. 247, deleted “Appointment of counsel” at the end of the section heading and substituted “is made” for “or assignment is made” at the end of subsection (4).

The 2015 amendment, by ch. 244, inserted “or assignment under this section” in subsection (4).

This section was amended by two 2016 acts which appear to be compatible and have been compiled together.

The 2016 amendment, by ch. 47, deleted “or assignment under this section” following “by the court” in subsection (4).

The 2016 amendment, by ch. 195, substituted “indigent defense provider” for “defending attorney” in paragraph (1)(b) and in subsections (3) and (4).

Compiler’s Notes.

Section 42 of S.L. 1981, ch. 114 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 10 of S.L. 2014, ch. 247 declared an emergency. Approved March 26, 2014.

Blood Alcohol Concentration Test.

The purpose of the blood alcohol concentration test under the implied consent statute is to gain evidence of a person’s blood alcohol level in order to determine whether he or she was driving under the influence; the procedure is investigatory in nature. McNeely v. State, 119 Idaho 182, 804 P.2d 911 (Ct. App. 1990).

There is no constitutional right to counsel prior to or at the time of the police’s evidentiary BAC test. State v. Shelton, 129 Idaho 877, 934 P.2d 943 (Ct. App. 1997).

Evidence Taken in Other Jurisdiction.

Idaho court properly refused to exclude from evidence a statement by defendant which was taken in another jurisdiction in compliance with the United States constitutional standards, but not in compliance with this section, since there was no rationale for application of the exclusionary rule in such situation. State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983), cert. denied, 468 U.S. 1220, 104 S. Ct. 3592, 82 L. Ed. 2d 888 (1984).

Investigations.

When defendant and 15 other prison inmates were placed in maximum security during the sheriff’s investigation of the murder of a fellow inmate, the matter was still in its investigatory stage and not its accusatory stage; thus, defendant did not then acquire the right to have the public defender informed of his detention nor the right to have counsel represent him. State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975), cert. denied, 423 U.S. 1089, 96 S. Ct. 881, 47 L. Ed. 2d 99 (1976).

Although this section refers to a detainee’s right to counsel, this right attaches at the accusatory, rather than an investigative, stage of criminal proceedings. McNeely v. State, 119 Idaho 182, 804 P.2d 911 (Ct. App. 1990).

Notice to Defense Counsel.

This section does not require the police to notify the public defender’s office prior to interrogating a suspect. State v. Gord, 118 Idaho 15, 794 P.2d 285 (Ct. App. 1990).

Since defendant waived his Miranda rights, any duty imposed upon the police to contact the public defender pursuant to this section was suspended until such time as defendant invoked his right for counsel to be present during the custodial interrogation. State v. Gord, 118 Idaho 15, 794 P.2d 285 (Ct. App. 1990).

Preindictment Lineup.

Where defendant after being told about lineup requested to speak with an attorney whereupon the public defender was called and after detention order was read to the public defender he spoke to defendant telling him to cooperate in the lineup but not to answer any questions, it was more appropriate to apply a rule requiring the defendant to show that prejudice resulted from the alleged ineffectiveness of his counsel in not attending the lineup, rather than to apply a per se rule that prejudice must be presumed to exist when counsel fails to attend a preindictment lineup. Boman v. State, 129 Idaho 520, 927 P.2d 910 (Ct. App. 1996).

Preliminary Hearing.

The right to counsel embraces all critical stages of the criminal justice process after commencement of adversarial criminal proceedings against the accused; because the preliminary hearing is a critical stage, the absence of an attorney will be excused only where the accused knowingly and intelligently has waived his or her right to counsel. State v. Wuthrich, 112 Idaho 360, 732 P.2d 329 (Ct. App. 1986).

Right to Counsel.

Where a DUI defendant, after submitting to a BAC test and being advised of his right to an independent test; did not avail himself of this right. Since there is not a constitutional right to counsel prior to or at the time of the police’s evidentiary BAC test and since this section does not enlarge this constitutional right because the period of time at issue does not constitute a “critical stage” in a criminal proceeding, defendant’s right to counsel was not violated inasmuch as he was advised of this right at his arraignment. State v. Shelton, 129 Idaho 877, 934 P.2d 943 (Ct. App. 1997).

Court erred by dismissing a postconviction motion and denying petitioner the appointment of counsel. In deciding whether his pro se petition raised the possibility of a valid claim, the court should have considered whether the facts alleged were such that a reasonable person would be willing to retain counsel to conduct a further investigation into the claims; the district court failed to do that. Swader v. State, 143 Idaho 651, 152 P.3d 12 (2007).

Waiver of Rights.

The trial court’s conclusions that defendant had made a knowing waiver of his rights and that his statements were admissible was supported by substantial evidence showing defendant was not a bright young man, but that he did have low-normal intelligence; that he was capable of comprehending what was going on about him; and that he could read and write and could understand instructions. State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. denied, 401 U.S. 942, 91 S. Ct. 947, 28 L. Ed. 2d 223 (1971).

Where defendant was given the Miranda warnings in the course of an illegal, sham arrest for vagrancy, the purpose of which was to gain evidence against defendant for robbery, defendant’s waiver of the rights enunciated in Miranda was without effect. State v. Barwick, 94 Idaho 139, 483 P.2d 670 (1971).

A short lapse of time between a verbal reading of the Miranda rights and the accused’s written execution of the Miranda waiver form is not such police behavior as to require the exclusion of relevant evidence as a disciplinary measure. State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984) (decision under this section prior to 1984 amendment).

Who Entitled.

The indigent youthful offender (and his parent) and the indigent adult offender are entitled to an order of the court providing legal representation. James v. Dunlap, 100 Idaho 697, 604 P.2d 711 (1979).

Amendments.

The 2013 amendment, by ch. 220, changed the designation scheme throughout the section; substituted “indigency” for “need” in the section heading and “indigent person” for “needy person” throughout the section; added present subsection (a) and redesignated the subsequent subsections; added the first sentence and “and the cost of bail” at the end of the last sentence in subsection (3); added “by rule” at the end of the first sentence and added the second sentence, with its designating paragraphs, in subsection (5); and rewrote the first sentence in subsection (7), which formerly read: “A needy person who receives the services of an attorney provided by the county may be required by the court to reimburse the county for all or a portion of the cost of those services.”

The 2014 amendment, by ch. 243, added the last sentence in subsection (3).

Compiler’s Notes.

For further information on the federal poverty guidelines, referred to in paragraph (2)(a), see https://aspe.hhs.gov/poverty-guidelines .

Effective Dates.

Section 2 of S.L. 2001, ch. 287 declared an emergency. Approved April 2, 2001.

Burden of Proof.

The initial burden rests upon defendant to demonstrate to the court’s satisfaction his inability to advance or secure costs to pay for transcript. Once defendant makes such a showing, the state must come forward with substantial factual evidence of defendant’s ability to pay, in whole or in part, the necessary costs. State v. Randles, 109 Idaho 933, 712 P.2d 634 (1985).

Once the court had found the defendant not indigent, the burden fell upon the defendant to apprise the court of any subsequent circumstances rendering him indigent. State v. Hesse, 110 Idaho 949, 719 P.2d 1209 (1986).

Furnishing Information.

Inquiry into Indigency.

A person cannot logically claim constitutional rights afforded to indigents and at the same time refuse to supply information necessary to establish his status as in indigent. Quinlivan v. State, 94 Idaho 334, 487 P.2d 928 (1971). Inquiry into Indigency.

Inquiry into indigency.

Courts are required to conduct inquiries into a defendant’s need for public defense and, while release on bail does not necessarily prevent a defendant from qualifying for public defense, the court may nonetheless consider it as a factor in making a determination of need. State v. Bowcutt, 101 Idaho 761, 620 P.2d 795 (1980).

Need Not Shown.

The district court did not abuse its discretion in denying motion for county payment of transcript costs on appeal, where defendants were purchasing property valued at $10,600 and they owned two vehicles worth $600. State v. Randles, 109 Idaho 933, 712 P.2d 634 (1985).

Reimbursement.

The district court erred by ordering defendant to reimburse the county public defender office for its services rendered, because Idaho law requires that a defendant presently have the means to pay for an attorney’s services before a reimbursement award can be entered. State v. Weaver, 135 Idaho 5, 13 P.3d 5 (Ct. App. 2000).

Just as a court is free to consider future earning capacity and future ability to pay when determining an appropriate restitution order, a court is free to do the same when it orders reimbursement of costs for legal services on appeal. State v. Cottrell, 152 Idaho 387, 271 P.3d 1243 (Ct. App. 2012).

Amendments.

The 2013 amendment, by ch. 220, substituted “an indigent person” for “a needy person.”

Amendments.

The 2013 amendment, by ch. 220, deleted “in writing, or by other record” following “may waive” in the first sentence.

Compiler’s Notes.

The term “this act” in the first sentence refers to S.L. 1967, chapter 181, which is compiled as§§ 19-851 to 19-855, 19-857 to 19-862, 19-863, 19-864 to 19-866, and§ 19-1512.

Appearing without Attorney.

Defendant did not waive his right to counsel merely by appearing at a hearing without an attorney. State v. Lindsay, 124 Idaho 825, 864 P.2d 663 (Ct. App. 1993).

Construction.

This section is procedural and not substantive law. The subject of the statute is how a trial court will consider and rule on the waiver of the right to counsel. The statute does not create, define, or regulate any primary rights. State v. Maxey, 125 Idaho 505, 873 P.2d 150 (1994).

Effectiveness of Counsel.

Where the record was completely devoid of any hint of counsel’s incompetence or his alleged inability to render effective assistance of counsel, the court was not required to conduct a detailed inquiry into the question of counsel’s lack of “desire” to be competent or into the source of any attorney-client conflict; furthermore, the trial judge should not be required to act as advocate for the defendant in a criminal proceeding, for his only obligation was to afford defendant a full and fair opportunity to present the facts and reasons in support of his motion for substitution of counsel after having been made aware by the court of the problems involved. State v. Clayton, 100 Idaho 896, 606 P.2d 1000 (1980).

Examination of Defendant.

A trial court is required to address the defendant personally and determine on the record that the demand to waive counsel is competently and intelligently made with an understanding of the nature of the crime and punishment involved. State v. Langley, 109 Idaho 119, 705 P.2d 1074 (Ct. App. 1985), rev’d on other grounds, 110 Idaho 895, 719 P.2d 1155, cert. denied, 479 U.S. 861, 107 S. Ct. 210, 93 L. Ed. 2d 140 (1986).

A penetrating and comprehensive examination of all the circumstances involved in a waiver of counsel must be conducted by the trial judge. This examination should make the defendant aware of the problems inherent in self-representation so that a waiver of counsel is knowingly and intelligently made. State v. Langley, 109 Idaho 119, 705 P.2d 1074 (Ct. App. 1985), rev’d on other grounds, 110 Idaho 895, 719 P.2d 1155, cert. denied, 479 U.S. 861, 107 S. Ct. 210, 93 L. Ed. 2d 140 (1986).

It was inconsequential whether a trial judge failed to find explicitly that defendant validly waived counsel because the judge implicitly found that counsel was validly waived. The judge deliberately extracted from defendant the necessary information to conclude that the waiver was valid, and then allowed defendant to proceed pro se. State v. Anderson, 144 Idaho 743, 170 P.3d 886 (2007).

Failure to Advise Defendant of Right to Counsel.

Although the district court failed to advise defendant at the time of his guilty plea that he had the right to court-appointed counsel to represent him, the error was harmless; there was nothing in the record that revealed any defect in the taking of the plea and the court indicated, upon reconsideration of the sentence, that even if defendant had been represented by counsel, no different sentence would have been imposed. State v. Smith, 122 Idaho 164, 832 P.2d 337 (Ct. App. 1992).

Knowing and Intelligent Waiver.

Where defendant acted pro se at his trial and trial judge repeatedly and meticulously sought to dissuade defendant from his waiver of counsel, advised defendant of dangers of attempting to represent himself and his defense in a criminal trial, and attempted unsuccessfully to get defendant to allow counsel to sit with him and advise him during the course of the trial, the record clearly established a knowing and intelligent waiver of counsel. State v. McCabe, 101 Idaho 727, 620 P.2d 300 (1980). In determining whether the waiver of right to counsel was intelligently given, the district court must consider the particular facts in each case, as well as the factors enumerated by this section concerning the background of the defendant, and make appropriate findings on the record. State v. Langley, 109 Idaho 119, 705 P.2d 1074 (Ct. App. 1985), rev’d on other grounds, 110 Idaho 895, 719 P.2d 1155, cert. denied, 479 U.S. 861, 107 S. Ct. 210, 93 L. Ed. 2d 140 (1986).

The state presented sufficient evidence to demonstrate that a minor defendant knowingly, voluntarily and intelligently waived his right to counsel where, although the defendant was not particularly sophisticated, the words contained in the written waiver form were simple enough that he could understand the content, and the defendant was only a few months away from his eighteenth birthday at the time of his waiver, and the crimes he committed were neither complex nor did they require a great deal of planning or intelligence to execute. State v. Doe, 131 Idaho 709, 963 P.2d 392 (Ct. App. 1998).

In prosecution for sexual abuse charges, defendant’s decision to discharge his counsel and re-open case to present dubious hypnosis defense was knowing and voluntary. Although court did not issue complete warnings at time of waiver, defendant had been fully warned prior to trial of the risks of proceeding pro se, had no mental illness, had not been threatened or advised to proceed without a lawyer, and possessed sufficient education to understand the consequences of his decision. Although his decision may not have been wise, it was knowing and voluntary. State v. Dalrymple, 144 Idaho 628, 167 P.3d 765 (2007).

Notice of Consequences.

Although a defendant has the right to reject court appointed counsel and conduct his own defense, since such a decision amounts to a waiver of the right to counsel, the defendant should be made aware of the problems inherent in self-representation, so that such waiver is knowingly and intelligently made. State v. Clayton, 100 Idaho 896, 606 P.2d 1000 (1980).

Amendments.

The 2013 amendment, by ch. 220, changed the designation scheme throughout the section and updated a reference in subsection (2) in conformance with that change; substituted “indigent person” for “needy person” in paragraph (1)(b); and inserted “without manifest hardship” in the first sentence of subsection (2).

Compiler’s Notes.

The term “this act” in the introductory paragraph in subsection (1) and in the first sentence in subsection (2) refers to S.L. 1967, chapter 181, which is compiled as§§ 19-851 to 19-855, 19-857 to 19-862, 19-863, 19-864 to 19-866, and§ 19-1512.

Legal Services.

Just as a court is free to consider future earning capacity and future ability to pay when determining an appropriate restitution order, a court is free to do the same when it orders reimbursement of costs for legal services on appeal. State v. Cottrell, 152 Idaho 387, 271 P.3d 1243 (Ct. App. 2012).

Warning to Defendant of Possible Claim.

Trial court did not err in accurately informing defendant, who posted bond but did not retain private counsel, of the possibility of a later suit by the county for reimbursement for the cost of the services of the public defender. State v. Bowcutt, 101 Idaho 761, 620 P.2d 795 (1980).

Amendments.

The 2013 amendment, by ch. 220, changed the designation scheme throughout the section and updated a reference in paragraph (1)(c) in conformance with that change; substituted “indigent persons and other individuals who are entitled to be represented by an attorney at public expense” for “needy persons who with respect to serious crimes are subject to proceedings in the county or are detained in the county by law enforcement officers” in the introductory paragraph in subsection (1); and deleted “of criminal jurisdiction” following “courts” in subsection (3).

The 2014 amendment, by ch. 247, rewrote the section to the extent that a detailed comparison is impracticable.

Compiler’s Notes.

The phrase “the effective date of this act” in subsection (4) refers to the effective date of S.L. 2014, chapter 247, which was effective March 26, 2014.

Effective Dates.

Section 10 of S.L. 2014, ch. 247 declared an emergency. Approved March 26, 2014.

Idaho Law Review.

Idaho Law Review. — Cosmetic Repair to a Crumbling Foundation: A Critical Examination of Idaho’s Most Recent Indigent Defense Legislation, Comment. 52 Idaho L. Rev. 669 (2016).

Amendments.

The 2013 amendment, by ch. 220, changed the designation scheme throughout the section and substituted “an indigent person” for “a needy person” in the first sentence in subsection (2).

The 2014 amendment, by ch. 247, deleted “Court appointed attorneys — Compensation” from the end of the section heading; inserted “or a joint office of public defender” in the present introductory language; deleted the former subsection (1) designation and redesignated former paragraphs (1)(a) and (1)(b) as present subsections (1) and (2); deleted “his term of office, which may not be less than two (2) years” following “public defender” in the first sentence in present subsection (1); deleted the last sentence in present subsection (2), which read: “During his incumbency, such public defender may engage in the practice of civil law and criminal law other than in the discharge of the duties of his office, unless he is prohibited from doing so by the board of county commissioners”; and deleted former subsection (2), relating to compensation of a court-assigned attorney other than the public defender.

The 2016 amendment, by ch. 47, deleted “— Term” following “Public defender” in the section heading.

Effective Dates.

Section 10 of S.L. 2014, ch. 247 declared an emergency. Approved March 26, 2014.

Amendments.

The 2014 amendment, by ch. 247, redesignated former subsections (a) through (c) as present subsections (1) through (3) and inserted “or a joint office of public defender” following “public defender” in present subsections (1) and (2).

Compiler’s Notes.

The term “this act” near the end of the first sentence in subsection (1) and near the end of paragraph (2)(a) refers to S.L. 1967, chapter 181, which is compiled as§§ 19-851 to 19-855, 19-857 to 19-862, 19-863, 19-864 to 19-866, and§ 19-1512.

Effective Dates.

Section 10 of S.L. 2014, ch. 247 declared an emergency. Approved March 26, 2014.

ALR.

§ 19-862. Appropriation for public defender — Private contributions.

1. The board of county commissioners of each county shall annually appropriate enough money to fund the indigent defense provider that it has selected under section 19-859, Idaho Code, and, except as provided in subsection (2) of this section, shall maintain not less than its local share. The board of county commissioners of each county may appropriate such money from the justice fund as provided in section 31-4602, Idaho Code, the current expense fund as provided in section 63-805, Idaho Code, and as a means of providing nonmedical indigent assistance in accordance with chapter 34, title 31, Idaho Code.
2. The board of county commissioners is not required to expend its full local share if it can comply with indigent defense standards for less than that share.
3. If the board of county commissioners of a county elects to establish and maintain an office of public defender or a joint office of public defender, the county may accept private contributions toward the support of the office.

History.

1967, ch. 181, § 12, p. 599; am. 2014, ch. 247, § 8, p. 617; am. 2016, ch. 195, § 4, p. 544; am. 2016, ch. 214, § 1, p. 600; am. 2017, ch. 58, § 8, p. 91.

Amendments.

The 2014 amendment, by ch. 247, redesignated former subsections (a) and (b) as present subsections (1) and (2) and inserted “or a joint office of public defender” following “public defender” in present subsection (2).

This section was amended by two 2016 acts which appear to be compatible and have been compiled together.

The 2016 amendment, by ch. 195, rewrote subsection (1), which formerly read: “The board of county commissioners of each county shall annually appropriate enough money to administer the program of representation that it has elected under section 19-859, Idaho Code”; added subsection (2), and redesignated former subsection (2) as subsection (3).

The 2016 amendment, by ch. 214, added “and may appropriate such money from the justice fund as provided in section 31-4602, Idaho Code, the current expense fund as provided in section 63-805, Idaho Code, and as a means of providing nonmedical indigent assistance in accordance with chapter 34, title 31, Idaho Code” in subsection (1).

The 2017 amendment, by ch. 58, added “The board of county commissioners of each county” at the beginning of the second sentence in subsection (1).

Effective Dates.

Section 10 of S.L. 2014, ch. 247 declared an emergency. Approved March 26, 2014.

Cross References.

Administrative procedure act,§ 67-5201 et seq.

Administrator of division of financial management,§ 67-1910.

Legislative services office,§ 67-701 et seq.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2019 amendment, by ch. 35, substituted “indigent defense financial assistance” for “indigent defense grant” or “indigent defense grants” and “proposal” for “application” throughout the section; in subsection (2), rewrote the first sentence, which formerly read: “On or before August 1, 2016, and by May 1 of each year thereafter, each county may submit to the commission an application for a state indigent defense grant that shall include a plan that specifically addresses how indigent defense standards shall be met and, if applicable under subsection (11)(a) of this section, how any deficiencies previously identified by the commission will be cured in the upcoming county fiscal year” as the current first two sentences, and deleted “has not yet promulgated any indigent defense standards, or the commission” following “commission” near the beginning of the fourth sentence; substituted “accept a compliance proposal” for “approve an application” near the beginning of the introductory paragraph in subsection (4); rewrote the first sentence in subsection (5), which formerly read: “The commission shall approve or disapprove the application submitted under subsection (2) of this section within sixty (60) days of the submission of the application”, and in the second sentence, substituted “rejects” for “disapproves” and “rejection” for “disapproval”; substituted “compliance proposal” for “grant application” near the beginning of paragraph (11)(a); and substituted “accept” for “approve” near the beginning of the last sentence in subsection (14).

Amendments.

The 2013 amendment, by ch. 220, changed the designation scheme throughout the section and updated a reference in subsection (2) in conformance with that change; and substituted “an indigent person” for “a needy person” in the first sentence of subsection (1).

Compiler’s Notes.

The term “this act” near the middle of subsection (1) refers to S.L. 1967, chapter 181, which is compiled as§§ 19-851 to 19-855, 19-857 to 19-862, 19-863, 19-864 to 19-866, and§ 19-1512.

Amendments.

The 2013 amendment, by ch. 220, rewrote the section to the extent that a detailed comparison is impracticable.

The 2016 amendment, by ch. 195, added “Indigent defense providers” at the beginning of subsection (1) and rewrote subsection (2), which formerly read: “If the board of county commissioners of a county elects to establish and maintain an office of public defender or a joint office of public defender, the county may accept private contributions toward the support of the office”.

Compiler’s Notes.

The term “this act” in subsection (1) refers to S.L. 1967, chapter 181, which is compiled as§§ 19-851 to 19-855, 19-857 to 19-862, 19-863, 19-864 to 19-866, and§ 19-1512.

Amendments.

The 2013 amendment, by ch. 220, changed the designation scheme in the section; and in the introductory paragraph, substituted “defending attorney” for “public defender” and “an indigent person” for “a needy person.”

The 2014 amendment, by ch. 97, substituted “district court” for “District Court” in subsection (2).

Compiler’s Notes.

The term “this act” at the beginning of the section refers to S.L. 1967, chapter 181, which is compiled as§§ 19-851 to 19-855, 19-857 to 19-862, 19-863, 19-863, 19-864 to 19-866, and§ 19-1512.

Section 16 of S.L. 1967, ch. 181 reads: “If a provision, or an application of a provision, of this act is held invalid, the valid provisions and applications that can be given effect without the invalid provision or application are intended to be in effect. To this end, the provisions of this act are severable.”

Compiler’s Notes.

The term “this act” refers to S.L. 1967, chapter 181, which is compiled as§§ 19-851 to 19-855, 19-857 to 19-862, 19-863, 19-864 to 19-866 and§ 19-1512.

Cross References.

Department of self-governing agencies,§ 67-2601 et seq.

Amendments.

This section was amended by two 2011 acts which appear to be identical and have been compiled together.

The 2011 amendments, by chs. 8 and 67, deleted “from a list of not less than two (2) nor more than four (4) qualified persons recommended by a committee consisting of the president of the Idaho state bar association, the chairman of the senate judiciary and rules committee and the chairman of the house judiciary, rules and administration committee and a citizen at large appointed by the governor. The chief justice of the Idaho supreme court, or her designee, shall be an ex officio member of the committee” from the end of subsection (2).

Compiler’s Notes.

The term “this act” at the end of subsection (5) refers to S.L. 1998, chapter 389, which is codified as§§ 19-867 to 19-872 and 67-5303.

Effective Dates.

Section 2 of S.L. 2011, ch. 67 declared an emergency. Approved March 15, 2011.

Amendments.

The 2016 amendment, by ch. 200, in subsection (1), added paragraph (b) and redesignated the subsequent paragraphs accordingly and inserted “grant or” in present paragraphs (c) and (d). The 2020 amendment, by ch. 68, rewrote subsection (1), expanding the state appellate public defender’s authority to represent indigent defendants in misdemeanor and juvenile appeals from the district court to the Idaho court of appeals and Idaho supreme court, occurring on or after October 1, 2020.

Compiler’s Notes.

The term “this act” in subsection (4) refers to S.L. 1998, chapter 389, which is codified as§§ 19-867 to 19-872 and 67-5303.

Effective Dates.

Section 2 of S.L. 1999, ch. 157 declared an emergency retroactively to July 1, 1998. Approved March 23, 1999.

Compiler’s Notes.

The term “this act” in this section refers to S.L. 1998, chapter 389, which is codified as§§ 19-867 to 19-872 and 67-5303.

Cross References.

State board of examiners,§ 67-2001 et seq.

Cross References.

Grand jury drawn only by direction of judge,§ 19-1307.

Indictment and information, Idaho R. Crim. P. 7.

Prosecutions only by indictment or information,Idaho Const., Art. I, § 8.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Indictment or Information.

Informations are of equal dignity with indictments, subject to the limitations that a defendant may only be accused by information after commitment by a magistrate and that an information cannot be issued if the charge has been previously brought before, and ignored by, a grand jury. Warren v. Craven, 152 Idaho 327, 271 P.3d 725 (Ct. App. 2012).

Misdemeanors.

Prosecution of misdemeanors triable in probate and justice’s court [now magistrate division] may be commenced in district court by filing criminal complaint. State v. Snook, 34 Idaho 403, 201 P. 494 (1921); State v. Moodie, 35 Idaho 574, 207 P. 1073 (1922).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Constitution of grand jury,§ 2-502.

Grand jury, Idaho R. Crim. P. 6.1 to 6.9.

Grand jury defined,§ 2-103.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Am. Jur. 2d.

C.J.S.

ALR.

Admission of hearsay evidence incompetent at trial as affecting, in absence of statutory regulation, validity of indictment or conviction. 37 A.L.R.3d 612.

Power of court to control evidence or witnesses going before grand jury. 52 A.L.R.3d 1316.

Refusal to answer questions before state grand jury as direct contempt of court. 69 A.L.R.3d 501.

Validity of enactment requiring juror to be an elector or voter or have qualifications thereof. 78 A.L.R.3d 1147.

Cross References.

Juries, Idaho R. Civ. P. 47. Idaho Court Admin. Rules 60 to 65.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Power of Court.

Court may, of own motion, excuse a juror deemed to be disqualified or incompetent. He must insure the selection of qualified and impartial grand jurors. State v. Dunn, 60 Idaho 568, 94 P.2d 779 (1939).

Defendant was not prejudiced where judge dismissed three members of grand jury, one because of illness and two because of necessity of private employment, and appointed three new members. State v. Dunn, 60 Idaho 568, 94 P.2d 779 (1939).

Relationship with Prosecutor.

In denying the defendant’s motion to dismiss grand jury indictment and subsequent conviction based upon contact between one of the grand jurors and the prosecuting attorney, the court ruled that use of first names by people in a small town did not characterize them as having a relationship and found credible the deputy prosecuting attorney’s characterization of his relationship with the juror as a professional and casual one. Under the totality of the circumstances, these contacts did not make the juror an improper juror, nor was the formation of the grand jury improper either procedurally or substantively. State v. Bujanda-Velazquez, 129 Idaho 726, 932 P.2d 354 (1997).

Similar Names.

Challenge should be sustained where another man of similar name was impaneled in place of one drawn and not summoned. State v. Roberts, 33 Idaho 30, 188 P. 895 (1920).

ALR.

§ 19-1004. Form of challenge.

The challenges mentioned in the last three sections may be oral, or in writing, and must be tried by the court.

History.

Cr. Prac. 1864, § 180, p. 235; R.S., R.C., & C.L., § 7610; C.S., § 8774; I.C.A.,§ 19-904.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Participation in considering a charge after challenge sustained a misdemeanor,§ 18-4401.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Oath of grand jury presiding juror, Idaho R. Crim. P. 6.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

New Juror.

Introduction of new juror, after indictment but before its return to court, was not prejudicial to any right of the defendant. Rich v. Varian, 36 Idaho 355, 210 P. 1011 (1922).

Presence of Judge.

Indictment was not invalid on ground that grand jury was in session while district judge was holding court in another county. Rich v. Varian, 36 Idaho 355, 210 P. 1011 (1922).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Grand jury, Idaho R. Crim. P. 6.1 to 6.9.

Indictments and Informations.

Informations are of equal dignity with indictments, subject only to the limitation ofIdaho Const., Art. I, § 8, that an information may be filed only after commitment by magistrate and that no information may be filed after charge has been ignored by grand jury. In re Winn, 28 Idaho 461, 154 P. 497 (1916).

Grand jury may present or indict without preliminary hearing, arrest or commitment of accused. State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939).

Since nothing in the constitution prohibits the use of information procedure, as opposed to the indictment by a grand jury, while a grand jury is in session, appellant’s contention that, while a grand jury was in session no prosecutions for felony could be instituted except by first submitting them to the grand jury for action was without merit. State v. Bailey, 94 Idaho 285, 486 P.2d 998 (1971), overruled on other grounds, State v. Flint, 114 Idaho 806, 761 P.2d 1158 (1988).

Jurisdiction of Court.

After preliminary examination and filing of an information, court acquires jurisdiction of defendant and of offense with which he is charged, from which it cannot be deprived by any action of grand jury convened at subsequent term. In re Winn, 28 Idaho 461, 154 P. 497 (1916).

Am. Jur. 2d.

C.J.S.

Power of court to make or permit amendment of indictment with respect to allegations as to place. 14 A.L.R.3d 1335.

Power of court to make or permit amendment of indictment with respect to allegations as to name, status, or description of persons or organizations. 14 A.L.R.3d 1358.

Sufficiency of indictment, information, or other form of criminal complaint, omitting or misstating middle name or initial of person named therein. 15 A.L.R.3d 968.

Power of court to make or permit amendment of indictment with respect to allegations as to property, objects, or instruments, other than money. 15 A.L.R.3d 1357.

Power of court to make or permit amendment of indictment with respect to allegations as to money. 16 A.L.R.3d 1076.

Power of court to make or permit amendment of indictment. 17 A.L.R.3d 1181.

Power of court to make or permit amendment of indictment with respect to allegations as to prior convictions. 17 A.L.R.3d 1265.

Power of court to make or permit amendment of indictment with respect to allegations as to nature of activity, happening, or circumstances. 17 A.L.R.3d 1285.

Accused’s right to inspection of minutes of state grand jury. 20 A.L.R.3d 7.

Validity of indictment where grand jury heard incompetent witness. 39 A.L.R.3d 1064.

Power of court to control evidence or witnesses going before grand jury. 52 A.L.R.3d 1316.

Validity and construction of statute authorizing grand jury to submit report concerning public servant’s noncriminal misconduct. 63 A.L.R.3d 586.

Presence of unauthorized persons during state grand jury proceedings as affecting indictment. 23 A.L.R.4th 397.

Individual’s right to present complaint or evidence of criminal offense to grand jury. 24 A.L.R.4th 316.

Cross References.

Form of oath, Idaho R. Crim. P. 6.

Cross References.

Evidence,§ 9-101 et seq.

Compiler’s Notes.

The term “this code” near the end of the first sentence read “this act” in the 1864 enacting session law, which act is codified through chapters 1 through 46 of title 19, Idaho Code.

Hearsay Evidence.

Where legally sufficient evidence will sustain an indictment, improperly admitted hearsay evidence will not overturn the indictment. State v. Edmonson, 113 Idaho 230, 743 P.2d 459 (1987).

Record on Appeal.

In the absence of a record on appeal setting out what evidence was before the grand jury which returned the indictment charging the defendant with the crime of burglary, the reviewing court will not speculate that the proceedings of the grand jury were based solely upon hearsay, merely because the endorsement on the indictment contained the name of only one witness who was not a witness to the crime. State v. Bullis, 93 Idaho 749, 472 P.2d 315 (1970).

Cross References.

Issuance of process, Idaho R. Crim. P. 6.4.

Appellate Review.

When conducting a review of the propriety of the grand jury proceeding, an appellate court’s inquiry is two-fold. First, the court must determine whether, independent of any inadmissible evidence, the grand jury received legally sufficient evidence to support a finding of probable cause. In making this determination, every legitimate inference that may be drawn from the evidence must be drawn in favor of the indictment. Second, even if such legally sufficient evidence was presented, the indictment must be dismissed if prosecutorial misconduct in submitting illegal evidence was so egregious as to be prejudicial. “Prejudicial effect” means the defendant would not have been indicted but for the misconduct. State v. Marsalis, 151 Idaho 872, 264 P.3d 979 (Ct. App. 2011).

Alleged defects in the grand jury process generally will not be reviewed on appeal after a defendant has been convicted in a fair trial on the merits. State v. Marsalis, 151 Idaho 872, 264 P.3d 979 (Ct. App. 2011).

Degree of Proof.

No objection could be made to charge to grand jury as to degree of proof necessary to justify an indictment, where charge given was more favorable than that required by the statute. Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953).

Prosecutorial Misconduct.

Cited

There was no error in denying defendant’s motion to dismiss an indictment for rape, where the grand jury was presented with abundant proper evidence to find probable cause to believe that intercourse occurred and that the victim was unconscious and/or incapable of resisting at the time, since she was intoxicated to the point of unconsciousness or had been given a drug, or a combination of both. Defendant had not shown that, “but for” alleged prosecutorial misconduct, he would not have been indicted. State v. Marsalis, 151 Idaho 872, 264 P.3d 979 (Ct. App. 2011). Cited State v. Brandstetter, 127 Idaho 885, 908 P.2d 578 (Ct. App. 1995).

Compiler’s Notes.

This section, which comprised Cr. Prac. 1864, § 210; R.S., R.C., & C.L., § 7638; C.S., § 8797; I.C.A.,§ 19-1009, was repealed by S.L. 1981, ch. 124, § 1.

Cross References.

County treasurer’s books, accounts and vouchers open to inspection by grand jury,§ 31-2122.

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to add context to the term “They,” which referred to the subject matter of§ 19-1109, repealed in 1981.

Cross References.

Attendees at grand jury sessions, Idaho R. Crim. P. 6.3.

Prosecuting attorney to attend grand jury when so requested,§ 31-2604.

Judge.

Judge has no right to be present at session of grand jury unless requested, and neither he nor court can exercise any control over their deliberations. Rich v. Varian, 36 Idaho 355, 210 P. 1011 (1922).

Members of Panel.

Latter clause of this section, which prescribes who may be present at sessions of grand jury, means that no persons except members of grand jury, witnesses, etc., may be present and does not refer to members of panel although they are witnesses. Territory v. Staples, 3 Idaho 35, 26 P. 166 (1891). Grand juror who has been successfully challenged should not be present during consideration of charges; his presence renders him liable for contempt of court, but does not invalidate indictment. Territory v. Staples, 3 Idaho 35, 26 P. 166 (1891).

Introduction of new grand juror, after indictment but before its return to the court, does not prejudice any substantial right of accused. Rich v. Varian, 36 Idaho 355, 210 P. 1011 (1922).

Prosecuting Attorneys.

The words “prosecuting attorney,” as used in this section, are to be construed generally as including any attorney on the side of the prosecution not otherwise disqualified, upholding right of attorney general to appear before grand jury. State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939).

Grand jury proceeding was not invalid on the ground that deputy prosecuting attorney appeared at sessions without having a finding made by county commissioners that his appointment was necessary, where he was duly appointed by prosecutor, oath taken, bond filed and approved by county commissioners, since it could be presumed that his appointment was necessary as commissioners had approved appointment and bond. Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953).

Subsequent to the presentation of defendant’s case to the grand jury by a deputy attorney general, the county prosecuting attorney moved for the appointment of a special prosecuting attorney, and the district court entered an order appointing the duly appointed and sworn deputy attorney general as a special prosecuting attorney; any defect in the process of obtaining an indictment was cured. State v. Summer, 139 Idaho 219, 76 P.3d 963 (2003).

Purpose.

The purpose of this section and former Idaho R. Crim. P. 6(d) (see now Idaho R. Crim. P. 6.4) is to guard the secrecy of the grand jury proceedings and assure that the jurors are free from undue influence and intimidation, thereby allowing them to make an independent determination of probable cause. State v. Edmonson, 113 Idaho 230, 743 P.2d 459 (1987).

Stenographer.

Where prosecuting attorney has a stenographer in grand jury room for purpose of taking down evidence in shorthand for the use of the prosecution, unless it appears that accused suffered in some way by the presence of the stenographer, the action of the grand jury cannot be disturbed. State v. Barber, 13 Idaho 65, 88 P. 418 (1907).

Presence of stenographer for purpose of taking testimony in grand jury proceeding was not ground for attacking validity of indictment in absence of showing of prejudice. Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953).

Unauthorized Personnel.

The presence of unauthorized personnel does not constitute grounds for attacking the validity of an indictment, absent a showing of prejudice. State v. Edmonson, 113 Idaho 230, 743 P.2d 459 (1987).

The presence of the deputy clerk of the district court and state attorney general in the grand jury room will not require a dismissal of the indictment. State v. Edmonson, 113 Idaho 230, 743 P.2d 459 (1987).

Cross References.

Disclosure of deliberations, a misdemeanor,§ 18-4403.

Disclosure of felony indictment or presentment before arrest, a misdemeanor,§ 18-4402.

Secrecy of proceedings, Idaho R. Crim. P. 6.3.

Amendments.

The 2015 amendment, by ch. 141, substituted “chapter 1, title 74” for “chapter 3, title 9” near the middle of the section.

Effective Dates.

Section 111 of S.L. 1990, ch. 213 as amended by § 16 of S.L. 1991, ch. 329 provided that §§ 3 through 45 and 48 through 110 of the act should take effect July 1, 1993 and that §§ 1, 2, 46 and 47 should take effect July 1, 1990.

Effective Dates.

Section 3 of S.L. 2000, ch. 238 provided that the act shall be in full force and effect on and after July 1, 2000.

Applicability.

This statute does not apply when a witness voluntarily gives testimony without demanding immunity. State v. Pecor, 132 Idaho 359, 972 P.2d 737 (Ct. App. 1998).

Construction.

The language of this statute is entirely permissive in that it allows the prosecutor to form an agreement granting testimonial immunity to an otherwise recalcitrant witness, but does not require that the prosecutor enter such an agreement every time he is a party to a plea agreement with a defendant who may become a witness in another prosecution. State v. Pecor, 132 Idaho 359, 972 P.2d 737 (Ct. App. 1998).

Failure to Request Immunity.

The immunity power is granted solely to the prosecuting attorney and it was no abuse of this power not to grant immunity where immunity was not requested by the defense. State v. Ramsey, 99 Idaho 1, 576 P.2d 572 (1978).

Where a witness was subpoenaed by the prosecution and the defense made no request that she be granted immunity to testify, the prosecutor did not abuse his immunity power. State v. Ramsey, 99 Idaho 1, 576 P.2d 572 (1978).

Effective Dates.

Section 3 of S.L. 2000, ch. 238 provided that the act shall be in full force and effect on and after July 1, 2000.

Applicability.

Where the record did not reflect refusal to give evidence by any witness, this statute had no bearing on the case. State v. Pecor, 132 Idaho 359, 972 P.2d 737 (Ct. App. 1998).

Constitutionality.

This statute does not offend the Fifth Amendment privilege against self-incrimination, because immunity from prosecution is granted and that immunity is coextensive with the privilege. Dutton v. District Court, 95 Idaho 720, 518 P.2d 1182 (1974).

Where petitioner was granted immunity and was ordered to testify at a criminal trial, court held this section did not offend article 1, section 7 of the Idaho constitution which guarantees right of one accused of a crime to a jury trial, since he was not accused of a crime. Dutton v. District Court, 95 Idaho 720, 518 P.2d 1182 (1974).

Failure to Request Immunity.

Where a witness was subpoenaed by the prosecution and the defense made no request that she be granted immunity to testify, the prosecutor did not abuse his immunity power. State v. Ramsey, 99 Idaho 1, 576 P.2d 572 (1978).

The immunity power is granted solely to the prosecuting attorney and it was no abuse of this power not to grant immunity where immunity was not requested by the defense. State v. Ramsey, 99 Idaho 1, 576 P.2d 572 (1978).

Compiler’s Notes.

The bracketed insertion in the next-to-last sentence was added by the compiler to correct the syntax of the sentence.

Compiler’s Notes.

The bracketed insertion in the first sentence in the first paragraph was added by the compiler to correct the syntax of the sentence.

Cross References.

Grand jury, Idaho R. Crim. P. 6 to 6.8.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Grand jury, Idaho R. Crim. P. 6 to 6.8.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Amendments.

The 2007 amendment, by ch. 90, deleted the references to the twentieth century from the date in the form.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Proceedings on warrant of arrest,§ 19-601 et seq.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Examination before magistrate,§ 19-801 et seq.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Indictment and information, Idaho R. Crim. P. 7.

Prosecuting attorney to draw informations,§ 31-2604.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Change of Venue.

District court has no jurisdiction to transfer for trial from one county to another a criminal action not based on information or indictment. State v. Cowen, 29 Idaho 783, 162 P. 674 (1916).

Construction.

Informations are of equal dignity with indictments, subject only to limitations contained inIdaho Const., Art. I, § 8, to the effect that defendant may be only accused by information after commitment by magistrate and that, after charge has been ignored by grand jury, no person shall be held to answer or for trial therefor upon information of public prosecutor. In re Winn, 28 Idaho 461, 154 P. 497 (1916).

After preliminary examination and filing of information, court acquires jurisdiction of defendant and of offense with which he is charged, from which it cannot be deprived by any action of grand jury convened at subsequent term. In re Winn, 28 Idaho 461, 154 P. 497 (1916). Section 19-1426 is equally applicable to an information filed by the prosecuting attorney under this statute. State v. Thomas, 82 Idaho 473, 355 P.2d 674 (1960).

Informations are of equal dignity with indictments, subject to the limitations that a defendant may only be accused by information after commitment by a magistrate and that an information cannot be issued if the charge has been previously brought before, and ignored by, a grand jury. Warren v. Craven, 152 Idaho 327, 271 P.3d 725 (Ct. App. 2012).

Am. Jur. 2d.

C.J.S.

ALR.

§ 19-1302. Filing and endorsement of information.

All informations shall be filed in the court having jurisdiction of the offense specified therein by the prosecuting attorney as informant to which he shall subscribe his name.

History.

1890-1891, p. 184, § 2; reen. 1899, p. 125, § 2; am. R.C., § 7656; am. 1913, ch. 41, p. 144; am. 1915, ch. 68, § 1, p. 176; reen. C.L., § 7656; C.S., § 8810; I.C.A.,§ 19-1202; am. 1989, ch. 343, § 1, p. 867.

Cross References.

Grand jury drawn only on direction of judge,§ 19-1307.

List of state witnesses, Idaho R. Crim. P. 16(b)(6).

Names of witnesses on indictment,§ 19-1404.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Delinquency of Minors.

In proceedings under§ 16-1701 (repealed) where information charged delinquent minors with commission of alleged felonies, such information was not defective nor did it divest the probate court of jurisdiction. Hewlett v. Probate Court, 66 Idaho 690, 168 P.2d 77 (1946).

Duty of Clerk.

It is the duty of the clerk to file an information when presented by the prosecuting attorney; consent of judge or court to filing of same need not be obtained, and order of court or judge directing clerk not to file information so presented is without jurisdiction and does not excuse clerk from filing same. State v. Quarles, 13 Idaho 252, 89 P. 636 (1907).

Failure to Endorse.

Absence of a signature on the charging document is a defect, but it does not affect whether the document adequately alleges that the defendant committed a criminal offense in the state of Idaho. State v. Hoagland, 160 Idaho 920, 382 P.3d 369 (Ct. App. 2016).

Rebuttal Witnesses.

Trial court did not err when it determined the state’s rebuttal witnesses must be disclosed to defendant under Idaho Criminal Rule 16. The court has considerable discretion to determine a remedy if there is a violation of this disclosure requirement. State v. Montgomery, 163 Idaho 40, 408 P.3d 38 (2017).

Decisions Under Prior Law

Construction.

This section is not mandatory in strict sense of that term; it is the duty of the trial court to enforce it, and of prosecutor to comply with its terms. But this requirement does not mean that information shall be quashed or that prosecution shall in no case be permitted to have names endorsed upon information after same is filed, where good cause is shown at time application is made why name or names were not endorsed at time information was filed, or why application was not sooner made after such information was filed. State v. Allen, 20 Idaho 263, 117 P. 849 (1911).

Endorsement of Additional Witnesses.

It is not error to permit prosecuting attorney to endorse names of additional witnesses to an information after trial jury has been impaneled, where it is shown that such witnesses were unknown to him at that time. State v. Wilmbusse, 8 Idaho 608, 70 P. 849 (1900); State v. Rooke, 10 Idaho 388, 79 P. 82 (1904); State v. Hoagland, 39 Idaho 405, 228 P. 314 (1924).

While it is not error to permit prosecuting attorney to endorse names of additional witnesses to an information after trial jury has been impaneled, where it is shown that such witnesses were unknown to him at that time, before permitting such addition the court must be satisfied that the names of such witnesses were not known to the prosecuting attorney at the time the information was filed. State v. Crea, 10 Idaho 88, 76 P. 1013 (1904).

If additional witnesses to those whose names are endorsed on indictment or information are discovered during trial, prosecuting attorney should be required to show where he obtained information concerning such witnesses, and, if showing is sufficient, court should then order names of witnesses placed on the indictment or information without delay. It is error to permit such additional witnesses to testify without their names being first endorsed on the indictment or information. State v. Barber, 13 Idaho 65, 88 P. 418 (1905). Name of witness may be endorsed upon information after it is filed, where good cause is shown why it was not done before, as, by reason of the oversight and neglect of the prosecutor, and upon a showing that the defendant has not been and will not be misled or prejudiced by such failure; particularly where the court offers to grant a continuance, giving the defendant the necessary time in which to secure evidence to meet the testimony of the witness whose name is so endorsed. State v. Allen, 20 Idaho 263, 117 P. 849 (1911).

Test in such cases is whether or not defendant was surprised or prejudiced by endorsement of name of witness during trial. State v. Hoagland, 39 Idaho 405, 228 P. 314 (1924).

Where there is no showing that defendant was surprised by addition of new name two weeks before trial or that there was insufficient time to prepare therefor, it will not be considered on appeal. State v. Stewart, 46 Idaho 646, 270 P. 140 (1928).

It was not error to allow name of state’s witness to be endorsed on information at the beginning of the trial and the accused’s objection on the ground that he had no fair opportunity of meeting such was without merit in absence of a showing to that effect. State v. Mundell, 66 Idaho 297, 158 P.2d 818 (1945).

Where the record shows the state did not know of the witness’ testimony until the day before the trial and the state notified defense counsel immediately as to the substance of the witness’ testimony the state’s motion to have his name endorsed on the information was properly granted. State v. Ziegler, 107 Idaho 1133, 695 P.2d 1272 (Ct. App. 1985).

Evidence.

Where state charged defendant in good faith with involuntary manslaughter, as the result of an automobile collision due to physical facts existing at scene of the crime, and state was unable to produce any witness as to who was driving the car, and defendant testified that another party was driving the car, it was not error by the court when it admitted testimony of a third party that driver of the car was intoxicated, since such evidence was rebuttal and was not a part of the state’s case in chief. State v. Ayres, 70 Idaho 18, 211 P.2d 142 (1949).

Failure to Endorse.

Failure of the prosecuting attorney to indorse the name of a rebuttal witness on the information was not prejudicial to the defendant, especially where the court ordered the testimony of such witness stricken from the record and admonished the jury to disregard it. State v. Rolfe, 92 Idaho 467, 444 P.2d 428 (1968).

Failure of a prosecuting attorney, who did not testify as a witness and who appeared only in his official capacity, to endorse his name as a witness on the information did not prejudice the defendant. State v. Fisk, 92 Idaho 675, 448 P.2d 768 (1968).

In prosecution for burglary in the first degree, it was error for the trial court to prohibit accomplices’ mother from testifying merely because her name was not endorsed upon the information, where the state did not learn of the witness’ information which would corroborate the accomplices’ testimony until the day of the trial, and where defendant, in objecting to admission of the testimony, did not allege that he would be prejudiced by its admission. State v. Nelson, 97 Idaho 718, 552 P.2d 226 (1976). The failure of the prosecution to give timely notice of a witness’ status as a possible state witness did not constitute prejudicial error, where defendant at no time made an appropriate objection to the admission of such testimony, did not ask for a continuance to meet such testimony, was aware of the substance of the witness’ testimony since she testified substantially the same at the preliminary hearing and made no showing of how he was prejudiced by the failure of the prosecution to give notice. State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978).

Failure to Show Prejudice.

Trial court properly allowed police officer to testify without having his name endorsed on the information where trial commenced three months after new rules of criminal procedure went into effect providing that upon order by court prosecutor must furnish defendant with list of names of all persons who may be called by state as witnesses, and where defendant failed to seek continuance or show any prejudice. State v. Goodrick, 95 Idaho 773, 519 P.2d 958 (1974).

Giving Testimony When Not Endorsed.

It was proper for witness to testify at trial where court had granted motion of state to endorse his name as a witness though his name was not actually endorsed. State v. Fedder, 76 Idaho 535, 285 P.2d 802 (1955).

Purpose.

Purpose of this section is to inform defendant of names of witnesses who are to testify against him so that he may have opportunity to meet and controvert their evidence. State v. Stewart, 46 Idaho 646, 270 P. 140 (1928).

The purpose of the provisions of this section in requiring that state endorse names of known witnesses on information is to inform accused of names of witnesses who are to testify against him so that he may have the opportunity to meet and controvert such evidence. State v. Mundell, 66 Idaho 297, 158 P.2d 818 (1945).

The purpose of the endorsement requirement in this section is essentially the same as the purpose of Idaho R. Crim. P. 16(b)(6), i.e., discovery by the defendant of the names of all persons having knowledge of relevant facts who may be called by the state as witnesses. State v. Olsen, 103 Idaho 278, 647 P.2d 734 (1982).

Time of Endorsement.

Action of trial court in granting permission to the state to endorse names of witnesses three days prior to trial was proper where trial was postponed and not held until 50 days thereafter, since the defendant had sufficient time to prepare to meet the testimony of the endorsed witnesses. State v. Fedder, 76 Idaho 535, 285 P.2d 802 (1955).

Test to be applied in cases where names of witnesses are sought to be endorsed on information after the trial begins is whether defendant would be surprised or prejudiced by such action, if allowed. State v. Coburn, 82 Idaho 437, 354 P.2d 751 (1960). Great caution should be exercised before permitting a witness’ name to be endorsed on information during the course of trial; it is only in those situations where no prejudice to defendant would result that the endorsement should ever be allowed. State v. Coburn, 82 Idaho 437, 354 P.2d 751 (1960).

Application of defendant to postpone trial on ground of surprise at introduction of witness whose name is not endorsed on information must be supported by affidavit or other evidence showing surprise, in the absence of which the application should be denied. State v. Coburn, 82 Idaho 437, 354 P.2d 751 (1960).

If defendant was prejudiced or surprised by testimony of state’s witness whose name was indorsed on information after trial began, he should have moved for continuance of trial at the time the state moved for endorsement of her name on the information and the permitting of such endorsement over defendant’s objection that motion came too late was not reversible error for law vests discretion in the trial court in ruling on such matters. State v. Coburn, 82 Idaho 437, 354 P.2d 751 (1960).

Where motion to endorse state’s witnesses at least six days before trial and notice was filed six days prior to filing the motion, the notice and motion were timely filed and defendant had ample time during which he might prepare to meet testimony of witnesses. State v. Coburn, 82 Idaho 437, 354 P.2d 751 (1960).

Verification.

Statute does not require information to be verified. State v. Ricks, 34 Idaho 122, 201 P. 827 (1921).

Witnesses in Rebuttal.

This section does not require endorsement of names of witnesses on the information that are called for the purpose of rebutting testimony given on behalf of the defendant. State v. Silva, 21 Idaho 247, 120 P. 835 (1912).

Cross References.

Complaint, information or indictment need not negate statutory defenses to certain offenses,§ 19-1433.

Requisites of indictment,§ 19-1409.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Amendment.

In a burglary prosecution, since the trial court’s allowing the prosecution to amend the information adding the words “in the nighttime” did not add or change the offense and the accused was neither surprised nor prejudiced by such amendment, the court did not err. State v. Ranstrom, 94 Idaho 348, 487 P.2d 942 (1971).

False Pretenses.

Where information charges presenting for payment certain false claims, to wit, bonds, and refers to the bonds as being false and fraudulent but states in detail facts showing presenting for payment genuine bonds as the basis of a false claim, the defendant is not prejudiced and the information is sufficient. State v. Curtis, 29 Idaho 724, 161 P. 578 (1916).

Force and Violence.

Information charging crime of assault with intent to commit rape, which alleges that defendant assaulted prosecutrix with intent to have sexual intercourse with her, “wilfully, feloniously, violently, unlawfully and against her will, wish, consent and resistance,” sufficiently alleges intent to accomplish the felonious act by force, and violence. State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318 (1907).

Multiple Charges.

Information charging more than one offense is open to demurrer. State v. Bilboa, 33 Idaho 128, 190 P. 248 (1920); State v. Hall, 33 Idaho 135, 190 P. 251 (1920); State v. Cooper, 35 Idaho 73, 204 P. 204 (1922).

Where information contained three counts, defendant’s plea of not guilty applied to but one offense, and sentences under two of the counts were surplusage and void. In re Bottjer, 45 Idaho 168, 260 P. 1095 (1927).

That indictment or information alleges more than one offense is ground for motion in arrest of judgment, unless objection has been waived by failure to demur. State v. Fong Wee, 47 Idaho 416, 275 P. 1112 (1929).

Name of Offense.

Where information incorrectly names an offense, but states special facts showing what offense really is, defendant is not prejudiced by the mistake in designating offense. State v. Curtis, 29 Idaho 724, 161 P. 578 (1916).

Previous Conviction.

Information charging defendant with being “a persistent violator” of a law against drinking in public must set out the previous conviction specifically. State v. Scheminisky, 31 Idaho 504, 174 P. 611 (1918), overruled on other grounds, State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963).

Sufficiency of Allegations.

An information charging the unlawful and felonious taking of property from the possession of a named owner, giving a description of the property and fixing the time and venue, is sufficient on demurrer. State v. Rooke, 10 Idaho 388, 79 P. 82 (1904).

Information will not be held insufficient by reason of any defect or imperfection in matter of form not tending to the prejudice of a substantial right of accused. State v. Lottridge, 29 Idaho 53, 155 P. 487 (1916), adhered to, on reh’g, 29 Idaho 822, 162 P. 672 (1917); State v. Andrus, 29 Idaho 1, 156 P. 421 (1916). Information must contain statement of acts constituting the offense in ordinary and concise language, and in such manner as to enable person of common understanding to know what is intended to be charged thereby. State v. Lottridge, 29 Idaho 53, 155 P. 487 (1916), adhered to, on reh’g, 29 Idaho 822, 162 P. 672 (1917); State v. Andrus, 29 Idaho 1, 156 P. 421 (1916); State v. Arnold, 39 Idaho 589, 229 P. 748 (1924).

Indictment or information must allege all the facts constituting the offense sought to be charged. State v. Cole, 31 Idaho 603, 174 P. 131 (1918); State v. Scheminisky, 31 Idaho 504, 174 P. 611 (1918), overruled on other grounds, State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963).

Information for murder charging that defendant on preliminary examination was held to answer for the crime of murder described therein, although it could have been improved, was not fatally defective. State v. Arnold, 39 Idaho 589, 229 P. 748 (1924).

Information couched in language of statute is usually sufficient. State v. Gee, 48 Idaho 688, 284 P. 845 (1930), overruled on other grounds, State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937).

Accused has the right to be informed, in all criminal prosecutions, both by the law and the information, what acts and conduct are prohibited and made punishable. State v. Burns, 53 Idaho 418, 23 P.2d 731 (1933).

This section makes the statutes governing the requisites of indictments applicable to informations. State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937), superseded by statute on other grounds as stated in, State v. Curtis, 106 Idaho 483, 680 P.2d 1383 (Ct. App. 1984).

Information complied with requirements as to crime of involuntary manslaughter, when it charged defendant with driving a motor vehicle on a public highway at a designated time and place in a negligent and careless manner at an excessive rate of speed upon the wrong side of the highway while intoxicated so as to endanger lives of persons on the highway, and that he did unlawfully, wilfully, and feloniously drive his vehicle against a vehicle of another, and six designated persons were killed, and that defendant did wilfully, unlawfully, and feloniously, but without malice, kill said six persons, as information charged but one offense, and was sufficient to put defendant on trial on theory that he was either a principal or an accessory. State v. Ayres, 70 Idaho 18, 211 P.2d 142 (1949).

Information was not subject to dismissal on ground of uncertainty where it alleged that defendant, at designated place in county and state while under the influence of intoxicating liquor, carelessly, negligently, recklessly, and without due caution and wilfully, unlawfully, and feloniously, but without malice, drove automobile across highway at high speed without warning against body of a human being with great force producing injuries upon body of designated person from which he died, and thereby committed manslaughter. State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951).

Information charging defendant with operating a motor vehicle on the public highway and that he did wilfully, unlawfully, negligently, recklessly and in a careless manner and while under the influence of intoxicating liquor and without caution and circumspection in regard for the safety of others, drive his automobile across the center line of said highway and on the left side of the road in the front of another automobile and that a passenger as a result received mortal wounds and injuries and in such manner such defendant did in reckless disregard for the safety of others, but without malice, kill decedent, charged one offense and was sufficient. State v. Anderson, 82 Idaho 293, 352 P.2d 972 (1960). An information alleging facts constituting both assault with a deadly weapon and assault with intent to commit murder and entitled “Assault With a Deadly Weapon With Intent to Murder” was sufficient to charge assault with intent to commit murder. Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

A charge that an accused took money from the person, or from the immediate presence of the person, and that it was taken against his will and by means of force or fear, constituted the single charge of robbery and such a charge afforded the accused proper means by which to prepare a defense of the particular crime charged. State v. Griffith, 94 Idaho 76, 481 P.2d 34 (1971), superseded by statute on other grounds in, State v. Bradley, 120 Idaho 566, 817 P.2d 1090 (Ct. App. 1991).

The sufficiency of an information ultimately depends on whether it fulfills the basic functions of the pleading instrument. Under this functional analysis, it must be determined first, whether the information contains the elements of the offense charged and fairly informs the defendant of the charges against which he must defend, and second, whether it enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. State v. Robran, 119 Idaho 285, 805 P.2d 491 (Ct. App. 1991); State v. Herreman-Garcia, 160 Idaho 642, 377 P.3d 1105 (Ct. App. 2016).

The information included all of the elements of the offense and sufficiently informed defendant of those acts for which he was accused, the pleading identified the substance that defendant was alleged to have possessed and the date and place of possession, and in the absence of any suggestion in the information that the state was charging defendant with possession of only a portion of the cocaine found on that date, defendant was on notice that he must be prepared to present a defense regarding all of the cocaine so found. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995).

Variances of Information.

Aggravated battery convictions were vacated because the variance between the information and the jury instructions for the two counts of aggravated battery deprived defendant of his right to fair notice of the charges. State v. Brazil, 136 Idaho 327, 33 P.3d 218 (Ct. App. 2001).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

The reference to “this code” near the beginning of this section read “the criminal code” as originally enacted and now is a reference to title 19, Idaho Code.

Amendment.

In a burglary prosecution since the trial court’s allowing the prosecution to amend the information, adding the words “in the nighttime,” did not add or change the offense and the accused was neither surprised nor prejudiced by such amendment, the court did not err. State v. Ranstrom, 94 Idaho 348, 487 P.2d 942 (1971).

General Saving Clause.

Statutes Applicable.

Prosecution of crime committed under an act, whether by way of information or indictment, is not barred by repeal of act, since general saving clause,§ 67-513, continues provisions of repealed act as to crimes committed prior to repeal. Ellenwood v. Cramer, 75 Idaho 338, 272 P.2d 702 (1954). Statutes Applicable.

Statutes applicable.

This section makes§ 19-1601 applicable to informations so that an information may be quashed only on the grounds prescribed in that section. State v. Hunt, 57 Idaho 122, 62 P.2d 1372 (1936).

The statute providing for indictment for perjury is equally applicable to information for perjury. State v. Crawford, 94 Idaho 463, 491 P.2d 180 (1971).

Sufficiency of Allegations.

The accused has a right to be informed not only by the law, but also by the information or indictment, what acts and conducts are prohibited and made punishable, and what acts or conduct he is called upon to answer. State v. Burns, 53 Idaho 418, 23 P.2d 731 (1933).

Where information states facts sufficient to constitute both assault and battery, if it be stated that accused is charged with assault and no statement is made that he is accused of battery, this is an election to proceed against him for assault alone and the information is not duplicitous. State v. Patterson, 60 Idaho 67, 88 P.2d 493 (1939).

Where information alleged that burglary was committed on or about the second day of June and the proof was that it was committed sometime before midnight on June first, such evidence was not fatal since it is sufficient if proof show the commission of crime at any time prior to filing of information and within statute of limitations. State v. Mundell, 66 Idaho 297, 158 P.2d 818 (1945).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Commitment by magistrate prerequisite to information,Idaho Const., Art. I, § 8.

Preliminary examination,§ 19-801 et seq.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

The office of the justice of the peace, referred to near the beginning of this section, was abolished in 1969. Section 1 of S.L. 1969, ch. 100 provides that references to justices of the peace shall be deemed to mean district judges or magistrates of the district court See§ 1-103.

Allegation of Examination.

It is not necessary for the information to allege that defendant has had a preliminary examination, or waived same, but it is better practice to make such averment. State v. Farris, 5 Idaho 666, 51 P. 772 (1897).

Amended Information.

A defendant who waived a preliminary hearing on a charge of “aggravated assault,” although the facts alleged in the information constituted aggravated battery, was not entitled to a new preliminary hearing on a charge of “aggravated battery” after the information was amended by changing the caption from “Aggravated Assault” to “Aggravated Battery” without changing the allegations of the complaint. State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967).

Amendment to information did not have the effect of charging a greater or different offense such that defendant, who was held for trial without a preliminary hearing, was denied his constitutional and statutory right to such hearing. State v. O’Neill, 118 Idaho 244, 796 P.2d 121 (1990).

Construction.

This section is mandatory and one accused of crime cannot be prosecuted by information until he shall have had a preliminary examination, or until he has waived his right to such examination, unless he is a fugitive from justice. State v. Braithwaite, 3 Idaho 119, 27 P. 731 (1891), overruled on other grounds, State v. Pierce, 107 Idaho 96 685 P.2d 837 (Ct. App. 1984); State v. Farris, 5 Idaho 666, 51 P. 772 (1897).

Where in support of a motion to quash the information defendant filed an affidavit that he had not had a preliminary hearing, it became the duty of the prosecuting attorney to refute such affidavit by the production of the depositions taken on preliminary examination or by other competent proof, and, upon his failure so to do, the motion to quash should be sustained. State v. Farris, 5 Idaho 666, 51 P. 772 (1897).

Public prosecutor has no power to file an information against an accused person until after such person has been committed by a magistrate; and then he can file his information only for offense for which accused was committed. State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909).

Fugitive from Justice.

Where one of several defendants is a fugitive from justice that fact may be properly inserted in information. State v. Curtis, 29 Idaho 724, 161 P. 578 (1916).

Parties.

Persistent Violator.

Information, which charged defendant with commission of crime, was not defective in that other participants were not named in information, if other participants were never apprehended or given a preliminary examination, since accused may be tried as either a principal or accessory. State v. So, 71 Idaho 324, 231 P.2d 734 (1951). Persistent Violator.

Persistent violator.

It was proper to file an information charging the defendant with arson in the first degree and with being a persistent violator, although he had had a preliminary hearing only on the charge of arson, the allegation that he was a persistent violator referring not to an additional offense but only to the status of the defendant, if convicted, for the purpose of determining punishment. State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967).

Setting Aside Information.

An information will not be set aside on the ground that defendant had no preliminary examination as required by law, where motion is based on fact that witness who testified on such preliminary examination failed, on objection of counsel, to answer questions incriminating her. State v. Bond, 12 Idaho 424, 86 P. 43 (1906).

Waiver of Examination.

This section authorizes defendant to waive preliminary examination. State v. Larkins, 5 Idaho 200, 47 P. 945 (1897), overruled on other grounds, State v. White, 93 Idaho 153, 456 P.2d 797 (1969).

Party may waive preliminary examination, and advice of officer, where it does not amount to coercion, will not affect this right. State v. Woodward, 41 Idaho 353, 238 P. 525 (1925).

Defendant may waive preliminary examination through codefendant authorized to act for him. State v. Woodward, 41 Idaho 353, 238 P. 525 (1925).

Cross References.

Discovery and inspection, Idaho R. Crim. P. 16.

Amplified by Criminal Rules.

Idaho R. Crim. P. 16 does not refer to this section, but is obviously designed to amplify its provisions in an effort to assist prosecutors and defense counsel in utilizing discovery processes. State v. Thompson, 119 Idaho 67, 803 P.2d 973 (1990).

Purpose.

The plain intent of this section is to require discovery by both the state and defendant in advance of trial and, presumably, to expedite criminal trials and diminish opportunities for surprise. State v. Thompson, 119 Idaho 67, 803 P.2d 973 (1990).

Am. Jur. 2d.

C.J.S.

ALR.

Right of defendant in criminal case to inspection of statement of prosecution’s witness for purposes of cross-examination or impeachment. 7 A.L.R.3d 181.

Accused’s right to inspection of minutes of state grand jury. 20 A.L.R.3d 7. Right of defense in criminal prosecution to disclosure of prosecution information regarding prospective jurors. 86 A.L.R.3d 571.

Accused’s right to discovery or inspection of records of prior complaints against, or similar personnel records of, peace officer involved in the case. 86 A.L.R.3d 1170.

Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process. 93 A.L.R.5th 527.

Failure of state prosecutor to disclose exculpatory physical evidence as violating due process — Weapons. 53 A.L.R.6th 81.

Failure of state prosecutor to disclose exculpatory physical evidence as violating due process — Personal items other than weapons. 55 A.L.R.6th 391.

Cross References.

Grand jury presiding juror, Idaho R. Crim. P. 6.

Indictment and information, Idaho R. Crim. P. 7.

Prosecuting attorney to draw indictments,§ 31-2604.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Amendment.

Defendant’s conviction for sexual abuse of a child under 16 years of age was void, because the prosecuting attorney had no authority to issue an amended indictment for a crime that was not charged in the original indictment and that was not an included offense of the originally-charged crime of lewd conduct with a child under 16 years of age; the amended indictment was a nullity, as the new charge required “the concurrence of at least twelve (12) grand jurors.” State v. Flegel, 151 Idaho 525, 261 P.3d 519 (2011).

Clerical Errors.

Where indictment was inadvertently not signed by the foreman of the grand jury and then, due to a clerical error, carried the wrong date, but the defects were timely cured by reconvening the same grand jury and addressing the errors, and defendant did not object to the court’s remedy, the indictment didi not have to be dismissed. State v. Hall, 163 Idaho 744, 419 P.3d 1042 (2018), cert. denied, — U.S. —, 139 S. Ct. 1618, 203 L. Ed. 2d 897 (2019).

Informations.

Informations are of equal dignity with indictments, subject only toIdaho Const., Art. I, § 8, that defendant may be accused by information after commitment by magistrate and that after charge has been ignored by grand jury no information may be filed. In re Winn, 28 Idaho 461, 154 P. 497 (1916).

Presumptions.

Indictment endorsed “A true bill. A Rossi, foreman. Presented and filed in open court in presence of the grand jury,” will be presumed, in absence of a showing to the contrary, to have been found by a legal grand jury, although there is no showing of the number of persons comprising grand jury. People v. Buchanan, 1 Idaho 681 (1878).

Validity.

Indictment found while district court is in recess is not invalid. Rich v. Varian, 36 Idaho 355, 210 P. 1011 (1922).

Indictment was not invalid on the ground that there was no endorsement of true bill signed by foreman where words “true bill” were placed under title of court just before body of indictment and name of foreman with title appeared below body of indictment since error, if any, was not prejudicial, as there was a substantial compliance with the statute. Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953).

Am. Jur. 2d.

C.J.S.

ALR.

Power of court to make or permit amendment of indictment with respect to allegations as to place. 14 A.L.R.3d 1335.

Power of court to make or permit amendment of indictment with respect to allegations as to name, status, or description of persons or organizations. 14 A.L.R.3d 1358.

Sufficiency of indictment, information, or other form of criminal complaint, omitting or misstating middle name or initial of person named therein. 15 A.L.R.3d 968.

Power of court to make or permit amendment of indictment with respect to allegations as to property, objects, or instruments, other than money. 15 A.L.R.3d 1357.

Power of court to make or permit amendment of indictment with respect to allegations as to money. 16 A.L.R.3d 1076.

Power of court to make or permit amendment of indictment with respect to allegations as to criminal intent or scienter. 16 A.L.R.3d 1093. Power of court to make or permit amendment of indictment. 17 A.L.R.3d 1181.

Prior convictions: Power of court to make or permit amendment of indictment with respect to allegations as to prior convictions. 17 A.L.R.3d 1265.

Power of court to make or permit amendment of indictment with respect to allegations as to nature of activity, happening or circumstances. 17 A.L.R.3d 1285.

Admission of hearsay evidence incompetent at trial as affecting, in absence of statutory regulation, validity of indictment or at conviction. 37 A.L.R.3d 612.

Validity of indictment where grand jury heard incompetent witness. 39 A.L.R.3d 1064.

Necessity of alleging in indictment or information limitation — tolling facts. 52 A.L.R.3d 922.

Presence of unauthorized persons during state grand jury proceedings as affecting indictment. 23 A.L.R.4th 397.

Cross References.

Return of no bill, Idaho R. Crim. P. 6.5(e).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Endorsement of information,§ 19-1302.

Endorsement of witnesses names on indictment, Idaho R. Crim. P. 6.5(c).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Return of indictment to district court, Idaho R. Crim. P. 6.5(c).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Cross References.

Provisions relating to indictment apply to information,§ 19-1304.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

The reference to “this code” at the end of this section originally read “this act” and referred to the 1864 enacting session law. That 1864 act now is codified throughout title 19, Idaho Code.

Common-Law Forms Abolished.

This section was enacted in order to abrogate the strictness of the common-law form of indictment, and it is not necessary that indictment or information should charge offense with all the strictness and particularity required at common law. State v. Sly, 11 Idaho 110, 80 P. 1125 (1905); State v. Gee, 48 Idaho 688, 284 P. 845 (1930), overruled on other grounds, State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937).

Indictment or Information.

Statutes governing requisites of indictments apply to informations. State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937), superseded by statute on other grounds as stated in, State v. Curtis, 106 Idaho 483, 680 P.2d 1383 (Ct. App. 1984).

Plea of Jeopardy.

A plea of once in jeopardy presents an issue of fact to be tried by jury unless trial by jury be waived. State v. Crawford, 32 Idaho 165, 179 P. 511 (1919).

Procedure Exclusive.

There is no statutory authority for entertaining demurrer to plea of once in jeopardy, as appears from an examination of§§ 19-1712, 19-1901, 19-1902, andIdaho Const., Art. I, § 7. State v. Crawford, 32 Idaho 165, 179 P. 511 (1919).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Application of Section.

Sections 19-1409 to 19-1411 are not applicable to complaints filed in probate and justice courts [now magistrate division of the district court] charging misdemeanors. State v. Griffith, 55 Idaho 60, 37 P.2d 402 (1934).

The pleading requirements of this section and§§ 19-1410 and 19-1411 are in conflict with§ 19-3901. The first three apply to indictments and informations before the district court, whereas the last statute is applicable to criminal complaints in probate courts, justice of the peace, and police courts [now magistrate division of the district court]. The language of the statutes, although not identical, has the same substantive requirements. A conviction of an offense pleaded with the particularity required of the latter, could be pleaded as a bar to another charge for the same offense. State v. Henry, 83 Idaho 167, 359 P.2d 514 (1961).

Burglary.

Burglary information following the language of the statute charging felonious entry of a barn, with intent to commit larceny, sufficiently complies with this section. State v. Vanek, 59 Idaho 514, 84 P.2d 567 (1938).

Facts of Offense.

An information which merely names offense without in any way stating how it was committed, or the acts committed which it is claimed consummated or culminated in the commission of offense, is insufficient and will not serve to put defendant upon his trial. State v. Smith, 25 Idaho 541, 138 P. 1107 (1914), overruled in part, State v. Lundhigh, 30 Idaho 365, 164 P. 691 (1917), overruled in part, State v. McMahan, 57 Idaho 248, 65 P.2d 159 (1937) (which reinstated the law as propounded in Smith ).

Offense need not be named. The facts alleged, rather than designation of offense, control. State v. Mickey, 27 Idaho 626, 150 P. 39 (1915).

Where an information incorrectly names offense, but states special facts showing what it really is, defendant is not prejudiced by the mistake in designation. State v. Curtis, 29 Idaho 724, 161 P. 578 (1916).

Information was not subject to dismissal on ground of uncertainty where it alleged that defendant at designated place in county and state while under the influence of intoxicating liquor carelessly, negligently, recklessly, and without due caution and wilfully, unlawfully, feloniously, but without malice, drove automobile across highway at high speed without warning against body of a human being with great force producing injuries upon body of designated person from which he died, and thereby committed manslaughter. State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951).

Where information charged defendant with the sale of liquor without a license to one Beman when the evidence was uncontradicted that such sale was made to one Howard, variance was of such substantial nature as clearly to mislead defendant in preparation of his case and likely to place him in second jeopardy for the offense; thus, his motion for arrest of judgment should have been granted. State v. Whitlock, 82 Idaho 540, 356 P.2d 492 (1960).

There was no prejudice to a defendant charged with aggravated battery in an information that failed to describe the exact nature of the injuries inflicted and stated only that they were grievous in the terms of the statute defining such offense. State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967).

Failure to State Title.

If the facts constituting the offense are sufficiently stated in the information, the mere giving of an erroneous offense characterization is immaterial; the amending information merely redefined the same offense, and there was no showing of prejudice to defendant by allowing the information to be amended three days before his trial. State v. Darbin, 109 Idaho 516, 708 P.2d 921 (Ct. App. 1985). Failure to State Title.

Failure to state title.

Failure to state the title of an action is not fatal. People v. Walters, 1 Idaho 271 (1869).

False Pretenses.

Information charging that defendant by false pretenses “induced” his victim to pay over a certain sum of money to defendant, sufficiently charged that the money was in fact paid over. State v. Stratford, 55 Idaho 65, 37 P.2d 681 (1934).

Forgery.

Where an information charges that the defendant passed a check purporting to be that of a nonexistent individual and, by way of videlicet, sets out a copy of the alleged check which shows it to be that of an existent corporation signed on behalf of said corporation with the name of the individual alleged to be nonexistent, the videlicet will control over the purport clause. State v. Bishop, 89 Idaho 416, 405 P.2d 970 (1965).

Homicide.

The failure of an indictment for murder to allege the killing to have been deliberate and premeditated is not fatal, where it alleges the killing to have been done with malice aforethought. People v. Ah Choy, 1 Idaho 317 (1870); State v. Ellington, 4 Idaho 529, 43 P. 60 (1895); State v. Shuff, 9 Idaho 115, 72 P. 664 (1903), overruled on other grounds, State v. White, 93 Idaho 153, 456 P.2d 797 (1969).

Definitions of various degrees of murder need not be set out in indictment. State v. Ellington, 4 Idaho 529, 43 P. 60 (1895).

Indictment for murder charging that the assault was unlawfully, feloniously, wilfully, deliberately, premeditatedly, and with malice aforethought made upon deceased is sufficient. State v. Shuff, 9 Idaho 115, 72 P. 664 (1903), overruled on other grounds, State v. White, 93 Idaho 153, 456 P.2d 797 (1969).

Allegation that defendant at specified time and place did “kill and murder one John H. Hays,” is a sufficient allegation that the latter died. State v. Sly, 11 Idaho 110, 80 P. 1125 (1905).

Allegation that defendant, at specified time and place, “then and there being, did then and there wilfully, unlawfully and feloniously, in a manner unknown, strike, beat, wound, and ill-treat” the victim was a sufficient allegation of the means whereby the homicide was effected. State v. Squires, 15 Idaho 545, 98 P. 413 (1908).

For a number of years it was deemed sufficient in this state to charge murder in general terms; however, the present rule requires the acts or facts of the killing to be alleged. State v. Smith, 25 Idaho 541, 138 P. 1107 (1914), overruled in part, State v. Lundhigh, 30 Idaho 365, 164 P. 691 (1917), overruled in part, State v. McMahan, 57 Idaho 248, 65 P.2d 159 (1937) (which reinstated the law as propounded in Smith ); State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941). For former rule, see People v. Walters, 1 Idaho 271 (1869); Perry v. State, 4 Idaho 224, 38 P. 655 (1894); State v. Ellington, 4 Idaho 529, 43 P. 60 (1895); State v. Shuff, 9 Idaho 115, 72 P. 664 (1903); State v. Sly, 11 Idaho 110, 80 P. 1125 (1905); State v. Squires, 15 Idaho 545, 98 P. 413 (1908); State v. Gruber, 19 Idaho 692, 115 P. 1 (1911); In re McLeod, 23 Idaho 257, 128 P. 1106 (1913); State v. Lundhigh, 30 Idaho 365, 164 P. 690 (1917); State v. Arnold, 39 Idaho 589, 229 P. 748 (1924). Information for murder, charging that defendant was held on preliminary examination to answer for the crime of murder described therein, although it could have been improved, was not fatally defective. State v. Arnold, 39 Idaho 589, 229 P. 748 (1924).

Information charging the driving of an auto negligently and without due caution by driving it at such a rate of speed and in such a manner as to endanger the lives of persons passing on the highway and fellow-passengers in said auto as to drive said auto into the rear of a parked truck which resulted in injury and death of a passenger sufficiently charges involuntary manslaughter within the meaning of this section and§ 19-1411. State v. Goldizen, 58 Idaho 532, 76 P.2d 278 (1938).

Information complied with requirements of this section, as to crime of involuntary manslaughter, when it charged defendant with driving a motor vehicle on a public highway at a designated time and place in a negligent and careless manner at an excessive rate of speed upon the wrong side of the highway while intoxicated, so as to endanger lives of persons on the highway, and that he did unlawfully, wilfully, and feloniously drive his vehicle against a vehicle of another, and six designated persons were killed, and that defendant did wilfully, unlawfully, and feloniously, but without malice, kill said six persons, as information charged but one offense, and was sufficient to put defendant on trial on theory that he was either a principal or an accessory. State v. Ayres, 70 Idaho 18, 211 P.2d 142 (1949).

An information alleging facts constituting both assault with a deadly weapon and assault with intent to commit murder and entitled “Assault With a Deadly Weapon With Intent to Murder” was sufficient to charge assault with intent to commit murder. State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968), cert. denied, 395 U.S. 977, 89 S. Ct. 2129, 23 L. Ed. 2d 765 (1969).

Informations.

These sections are made applicable to informations by§ 19-1303. State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937).

Information, which charged defendant with committing lewd and lascivious acts on female under the age of 16 with the intent of arousing, appealing to and gratifying the lusts and passions of sexual desires of said defendant and of said minor, and which added “with the intent and purpose of having sexual intercourse with the said minor child,” the last sentence was surplusage, since state intended to charge defendant under§ 18-1508, to wit, lewd and lascivious conduct. State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), appeal dismissed, 345 U.S. 834, 73 S. Ct. 834, 97 L. Ed. 2d 1364 (1953).

Where information charged sale of liquor by defendant without a license, the failure to allege that acts were done feloniously did not make information defective since§ 23-938, under which information was filed, expressly makes sale of liquor without a license a felony. State v. Martin, 73 Idaho 545, 255 P.2d 713 (1953).

Demurrer to information charging defendant with employing drugs and instruments with intention of producing an abortion was properly overruled where information substantially followed the wording of former§ 18-601 in ordinary and concise language, and also alleged the particular circumstances of the offense charged. State v. Rose, 75 Idaho 59, 267 P.2d 109 (1954).

An information charging respondent drove his automobile carelessly, heedlessly, without due caution and circumspection and in reckless disregard of the safety of others, and then setting forth a number of driving violations alleged to have been committed by respondent sufficiently charged respondent with acts constituting negligent homicide. State v. Carpenter, 85 Idaho 232, 378 P.2d 188 (1963). While the unlawful acts asserted in the information are alleged in general terms, it is sufficient to advise a person of common understanding as to nature of the offense charged and adequately describe the offense with sufficient particularity to serve as a shield in the event of an attempted second prosecution for the same crime. State v. McGlochlin, 85 Idaho 459, 381 P.2d 435 (1963).

An information or indictment for sale of liquor without a license should allege the name of the purchaser of the liquor in order that a defendant may know which specific series of acts is the one culminating in the criminal charge, the information, and conviction and in order to describe the offense with sufficient particularity that it can be used as a shield in case of a second prosecution for the same offense. State v. Grady, 89 Idaho 204, 404 P.2d 347 (1965).

In a burglary prosecution, since the trial court’s allowing the prosecution to amend the information adding the words “in the nighttime” did not add or change the offense and the accused was neither surprised nor prejudiced by such amendment, the court did not err. State v. Ranstrom, 94 Idaho 348, 487 P.2d 942 (1971).

This statute, which governs the sufficiency of an indictment, is also applicable to information in its requirement that the defendant be adequately informed of the specific act and nature of the charge against him. State v. Shannon, 95 Idaho 299, 507 P.2d 808 (1973).

Information which stated that one horned, brindle, heifer cow being the property of Jeannine Martin was allegedly stolen by defendant between the middle of October, 1974, and the end of February, 1975, was sufficient to adequately set out the nature and circumstances of the offense charged and gave a sufficient description of the animal alleged to have been taken, so as to enable a person of ordinary understanding to adequately know the details of the crime the state charged and intended to prove at the trial. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

In view of the jury instructions given, which adequately apprised the jury of the elements that must be proved in order to convict for rape, the inclusion of “fear” and “fearful” language in the information, which did not relate to elements of the crime, was harmless. State v. Headlee, 121 Idaho 979, 829 P.2d 869 (Ct. App. 1992).

Defendant failed to show that a lack of greater specificity in the dates of lewd acts in an information somehow inhibited his ability to defend against the charges of lewd conduct with a minor child under 16, or subjected him to the risk of another prosecution for the same offenses, where the state could not have pleaded the charges with any greater particularity; the victim was young, between 8 and 10 years old, at the time these lewd acts were alleged to have been committed, she frequently visited defendant, her grandfather, at his home, where the abuse was alleged to have occurred and it was unrealistic to have expected her to have been able to have recalled dates specifically given her age and the time span over which the acts were alleged to have occurred. State v. Jones, 140 Idaho 41, 89 P.3d 881 (Ct. App. 2003).

In General.

Neither preliminary hearing, arrest, commitment or presentment are necessary prerequisites to indictment, and the attempt to distinguish between an indictment and a presentment, whatever its force might otherwise be, has no bearing on the validity of the indictment herein. State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939). A complaint for reckless driving filed in a justice of the peace court [now magistrate division of district court] was not subject to the requirements of this section. State v. Pruett, 91 Idaho 537, 428 P.2d 43 (1967).

Jurisdiction.

Motion in arrest of judgment based on ground that information failed to state that crime was committed in county in which filed, or in state of Idaho, was proper, since district court did not have jurisdiction. State v. Slater, 71 Idaho 335, 231 P.2d 424 (1951).

Order of Statement Immaterial.

Order in which the matters required by this section appear in indictment is immaterial, and “conclusions” may be construed with the charging part in order to sustain indictment. Territory v. Evans, 2 Idaho 425, 17 P. 139 (1888).

Perjury.

Indictment for perjury which charges defendant merely with denying, in the district court, that he made some contradictory statement before the grand jury, not stating the issue under investigation there nor the testimony taken nor whether it was true or false, violates this section. State v. Lowe, 60 Idaho 98, 88 P.2d 502 (1939).

Robbery.

A charge that an accused took money from the person, or from the immediate presence of the person, and that it was taken against his will and by means of force or fear, constituted the single charge of robbery and such a charge afforded the accused proper means by which to prepare a defense of the particular crime charged. State v. Griffith, 94 Idaho 76, 481 P.2d 34 (1971), superseded by statute on other grounds as stated in, State v. Bradley, 120 Idaho 566, 817 P.2d 1090 (Ct. App. 1991).

Sufficiency in General.

The statutes have provided for the same liberality in pleadings and construction thereof, in criminal cases as in civil cases, and if substantial facts necessary to constitute crime appear in indictment it will be held sufficient. State v. Sly, 11 Idaho 110, 80 P. 1125 (1905).

Under this and the following sections, an indictment or information which charges accused with some crime known to the statute, committed on or about a specified date, and alleges that the unlawful act was done wilfully, unlawfully, and feloniously, and indicates particular crime charged, with time, place, circumstances, and conditions of same is sufficient. State v. Steers, 12 Idaho 174, 85 P. 104 (1906).

Indictment is sufficient if it describes offense in language of the statute by which it is created or defined and the words employed make the charge clear to the common understanding. All that is necessary is that, on its face, it is sufficient to advise defendant of the nature of the charge against him, and that it describes offense with such particularity as to serve as a shield in case of a second prosecution for same offense. State v. O’Neil, 24 Idaho 582, 135 P. 60 (1913); State v. Lottridge, 29 Idaho 53, 155 P. 487 (1916); State v. Andrus, 29 Idaho 1, 156 P. 421 (1916); State v. Rogers, 30 Idaho 259, 163 P. 912 (1917); State v. Lundhigh, 30 Idaho 365, 164 P. 690 (1917), overruled on other grounds, State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937); State v. George, 44 Idaho 173, 258 P. 551, cert. denied, 275 U.S. 544, 48 S. Ct. 82, 72 L. Ed. 417 (1927). Only test is not that information follows language of statute but that it is in compliance with law prescribing requisites of information. State v. Bowman, 40 Idaho 470, 235 P. 577 (1925).

Information for receiving stolen property is sufficient if it charges offense as defined by the statutes or in language of equivalent import. State v. Montgomery, 48 Idaho 760, 285 P. 467 (1930).

An accused is entitled to know for what offense he is being charged. State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), appeal dismissed, 345 U.S. 834, 73 S. Ct. 834, 97 L. Ed. 2d 1364 (1953).

Where the information filed in an aggravated assault prosecution contained a plain, concise, and definite statement of the essential facts constituting the offense charged, the failure of the information to list the precise subsections of the statutes that the defendant was alleged to have violated did not render the information legally insufficient. State v. Lenz, 103 Idaho 632, 651 P.2d 566 (Ct. App. 1982).

A legally sufficient information is a plain, concise, and definite written statement of the essential facts constituting the offense charged. State v. Darbin, 109 Idaho 516, 708 P.2d 921 (Ct. App. 1985).

The information must be specific so that the defendant may prepare a proper defense and protect himself against subsequent prosecution based on the same conduct. State v. Darbin, 109 Idaho 516, 708 P.2d 921 (Ct. App. 1985).

The sufficiency of an information ultimately depends on whether it fulfills the basic functions of the pleading instrument. Under this functional analysis, it must be determined, first, whether the information contains the elements of the offense charged and fairly informs the defendant of the charges against which he must defend, and second, whether it enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. State v. Robran, 119 Idaho 285, 805 P.2d 491 (Ct. App. 1991).

Allegations of an information, of lewd conduct with a minor child under 16, though general, were sufficient where defendant was fully apprised of the acts he was charged with committing at the preliminary hearing where the state presented the victims’ testimony about the surrounding circumstances and the manner in which the offenses were alleged to have been committed. State v. Jones, 140 Idaho 41, 89 P.3d 881 (Ct. App. 2003).

The sufficiency of an information is tested by a functional analysis encompassing two inquiries: (1) whether the pleading contains the elements of the offense charged and fairly informs the defendant of the charge which must be defended against; and (2) whether the information enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. State v. Herreman-Garcia, 160 Idaho 642, 377 P.3d 1105 (Ct. App. 2016).

Waiver.

Where defendant contended on appeal that the information failed to meet the requirements of§ 19-1411 and this section, his failure to challenge the sufficiency of the information by demurrer constituted a waiver of any objection to the information on these grounds. State v. Segovia, 93 Idaho 594, 468 P.2d 660 (1970).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Application of Section.

The pleading requirements of§§ 19-1409, 19-1411 and this section are in conflict with§ 19-3901. The first three apply to indictments and informations before the district court, whereas the last statute is applicable to criminal complaints in probate courts, justice of the peace, and police courts [now magistrate division of the district court]. The language of the statutes, although not identical, has the same substantive requirements. A conviction of an offense pleaded with the particularity required of the latter could be pleaded as a bar to another charge for the same offense. State v. Henry, 83 Idaho 167, 359 P.2d 514 (1961).

Contents.

An information charging unlawful sale of intoxicating liquors which concludes with the clause, “Contrary to the form, force, and effect of the statutes in such cases made and provided and against the peace and dignity of the state of Idaho,” is a sufficient allegation that liquor was sold or disposed of contrary to law, whether it be the local option law or any other public statute. State v. Schmitz, 19 Idaho 566, 114 P. 1 (1911). An information may properly have four parts: (1) caption, (2) inducement or commencement, (3) charging part, and (4) conclusion. State v. Flower, 27 Idaho 223, 147 P. 786 (1915).

Motion in arrest of judgment based on ground that information failed to state that crime was committed in county in which filed, or in state of Idaho was proper, since district court did not have jurisdiction. State v. Slater, 71 Idaho 335, 231 P.2d 424 (1951).

Where information charged sale of liquor by defendant without a license, the failure to allege that acts were done feloniously did not make information defective since§ 23-938 under which information was filed, expressly makes sale of liquor without a license a felony. State v. Martin, 73 Idaho 545, 255 P.2d 713 (1953).

Cross References.

Complaint, information or indictment need not negate statutory defenses to certain offenses,§ 19-1433.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Application.

The pleading requirements of§§ 19-1409, 19-1410 and this section are in conflict with§ 19-3901. The first three apply to indictments and informations before the district court, whereas the last statute is applicable to criminal complaints in probate courts, justice of the peace, and police courts [now magistrate division of district court]. The language of the statutes, although not identical, has the same substantive requirements. A conviction of an offense pleaded with the particularity required of the latter, could be pleaded as a bar to another charge for the same offense. State v. Henry, 83 Idaho 167, 359 P.2d 514 (1961).

Burglary.

An information for burglary which did not charge whether offense was committed in the daytime or the nighttime charged the offense of second degree burglary, and a special demurrer based on the ground that the charge did not state whether offense was committed in the daytime or the nighttime should not have been sustained. State v. Eubanks, 77 Idaho 439, 294 P.2d 273 (1956).

In a burglary prosecution since the trial court’s allowing the prosecution to amend the information adding the words “in the nighttime” did not add or change the offense and the accused was neither surprised nor prejudiced by such amendment, the court did not err. State v. Ranstrom, 94 Idaho 348, 487 P.2d 942 (1971).

Demurrer for Uncertainty.

Special demurrer for uncertainty should point out particulars in which it is claimed the information is insufficient. State v. Peters, 43 Idaho 564, 253 P. 842 (1927).

Embezzlement.

Information charging sheriff with wilfully, unlawfully, fraudulently, and feloniously appropriating to his own use certain moneys paid to him in his official capacity sufficiently charges offense of embezzlement. State v. Steers, 12 Idaho 174, 85 P. 104 (1906).

In charging series of acts as single continuing offense of embezzlement, it is not necessary to allege that the series of acts was systematically instituted and carried on, or that the specific separate peculations can not be identified. State v. Peters, 43 Idaho 564, 253 P. 842 (1927).

An information charging manslaughter by wilfully and feloniously killing a human being without stating acts relied on to constitute the manslaughter is insufficient. State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937), superseded by statute on other grounds as stated in, State v. Curtis, 106 Idaho 483, 680 P.2d 1383 (Ct. App. 1984).

Homicide.

An information charging involuntary manslaughter by unlawfully and feloniously operating motor vehicle without due care and at a rate of speed in such a manner as to endanger lives and limbs of persons riding within the automobile which struck the rear of a truck causing the death of a guest in the automobile, was sufficient on demurrer. State v. Goldizen, 58 Idaho 532, 76 P.2d 278 (1938).

A murder information, charging that the defendant made an assault on a named woman inflicting mortal wounds on and in her body, and unlawfully, wilfully, feloniously, and with malice aforethought killed and murdered her, was fatally defective as not stating the acts constituting the offense and not charging in which, or the means by which, the alleged crime was committed. State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941). A defendant, before being placed on trial, is entitled to be appraised by the information not only of the name of the offense charged, but, in general terms of the manner in which he is charged with having committed such an offense. State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941).

If the means by and manner in which an alleged crime was committed were unknown to the prosecutor, he must so allege in the information or in an amendment thereof. State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941).

Information was not subject to dismissal on ground of uncertainty where it alleged that defendant at designated place in county and state while under the influence of intoxicating liquor carelessly, negligently, recklessly and without due caution and wilfully, unlawfully, feloniously, but without malice, drove automobile across highway at high speed without warning against the body of a human being with great force producing injuries upon body of designated person from which he died, and thereby committed manslaughter. State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951).

Language of Statute.

In order that an information charging a statutory offense in the language of the statute may be sufficient, it must fully, directly and expressly contain all elements constituting the offense, and if the language of the statute fails to do this, such language may be expanded in the information, consonant with its intent, to sufficiently describe the crime. State v. Bowman, 40 Idaho 470, 235 P. 577 (1925).

The accused has a right to be informed, not only by the law, but by the indictment or information as well, of what acts and conduct are prohibited and made punishable, and of what acts or conduct he is called upon to answer for. State v. Burns, 53 Idaho 418, 23 P.2d 731 (1933).

Information, which charged defendant with committing lewd and lascivious acts committed on female under the age of 16 with the intent of arousing, appealing to and gratifying the lusts and passions of sexual desires of said defendant and of said minor, and which added “with the intent and purpose of having sexual intercourse with the said minor child,” the last sentence was surplusage, since state intended to charge defendant under§ 18-1508, to wit, lewd and lascivious conduct. State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), appeal dismissed, 345 U.S. 834, 73 S. Ct. 834, 97 L. Ed. 2d 1364 (1953).

There was no prejudice to a defendant charged with aggravated battery in an information that failed to describe the exact nature of the injuries inflicted and stated only that they were grievous in the terms of the statute defining such offense. State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967).

Larceny.

Information charging that, at a time and place specified, defendant “did then and there feloniously steal, take and drive away two mares, the personal property of another,” held sufficient. State v. Rathbone, 8 Idaho 161, 67 P. 186 (1901).

Information that charges larceny of one horse is not repugnant to this section for want of sufficient description. State v. Collett, 9 Idaho 608, 75 P. 271 (1904). Information charging the unlawful and felonious taking of property from the possession of owner, naming him, giving a description of property, and fixing time and venue, is sufficient on demurrer. State v. Rooke, 10 Idaho 388, 79 P. 82 (1904).

Offense Charged.

Information in prosecution for murder held to sufficiently allege that death of deceased ensued and the means by which homicide was perpetrated. State v. Sly, 11 Idaho 110, 80 P. 1125 (1905).

An information which charges that defendant “did wilfully, unlawfully, feloniously, and falsely forge and utter a bank check,” and “did then and there utter the said bank check as true and genuine with intent to defraud the said R.,” is fatally defective in that part charging the making of instrument fails to allege the same was done “with intent to defraud another,” and in that the part charging the uttering of the bank check fails to allege that it was uttered “knowing the same to be false, altered, forged or counterfeited.” State v. Swensen, 13 Idaho 1, 81 P. 379 (1905).

Information charging the crime of assault with intent to commit rape, which alleges that defendant did assault prosecutrix with intent to have sexual intercourse with her “wilfully, feloniously, violently, unlawfully, and against her will, wish, consent and resistance,” sufficiently alleges intent to accomplish the felonious act by force and violence. State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318 (1907).

Information charging robbery, in that defendant “did then and there and by means of said fear inspired in the said Efton Carr, as aforesaid, wilfully, unlawfully and feloniously take, steal and carry away from the person of said Efton Carr, and against the will of him, the said Efton Carr, certain personal property then and there being in the possession of and on the person of said Efton Carr, to wit * * *,” is sufficient. State v. Brill, 21 Idaho 269, 121 P. 79 (1912).

Information which charges offense of presenting for payment certain false claims, to wit, bonds, and refers to the bonds as false and fraudulent, but states in detail facts showing that the offense really consists in presenting for payment genuine bonds as the basis of a false claim, will support conviction of latter offense. State v. Curtis, 29 Idaho 724, 161 P. 578 (1916).

Information charging that at time and place specified, defendant “then and there being, did assault with intent to kill one Parker Gundo, he the said defendant having the present ability to do so, by then and there, striking, hitting and beating said Parker Gundo with a heavy stick or club”, did not charge assault with intent to commit murder by means of a deadly weapon or instrument, or by any means or force likely to produce great bodily injury. State v. Singh, 34 Idaho 742, 203 P. 1064 (1921).

Information charging interference with headgate regulated by watermaster held sufficient. State v. George, 44 Idaho 173, 258 P. 551, cert. denied, 275 U.S. 544, 48 S. Ct. 82, 72 L. Ed. 417 (1927).

Information for receiving stolen goods need not allege that defendant received the stolen property both for his own gain and to prevent owner from again possessing his property. State v. Montgomery, 48 Idaho 760, 285 P. 467 (1930).

An accused is entitled to know for what offense he is being charged. State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), appeal dismissed, 345 U.S. 834, 73 S. Ct. 834, 97 L. Ed. 2d 1364 (1953).

Party Charged.

An information or indictment for sale of liquor without a license should allege the name of the purchaser of the liquor in order that the defendant may know which specific series of acts is the one culminating in the criminal charge, information, and conviction and in order to describe the offense with sufficient particularity that it can be used as a shield in case of a second prosecution for the same offense. State v. Grady, 89 Idaho 204, 404 P.2d 347 (1965). Party Charged.

Party charged.

An information containing name of defendant in the caption, but not in the charging part, is insufficient to charge such person with a crime. State v. Flower, 27 Idaho 223, 147 P. 786 (1915).

Robbery.

A charge that an accused took money from the person, or from the immediate presence of the person, and that it was taken against his will and by means of force or fear, constituted the single charge of robbery, and such a charge afforded the accused proper means by which to prepare a defense of the particular crime charged. State v. Griffith, 94 Idaho 76, 481 P.2d 34 (1971), superseded by statute on other grounds as stated in, State v. Bradley, 120 Idaho 566, 817 P.2d 1090 (Ct. App. 1991).

Sufficiency.

Information is not sufficient which states facts inferentially. They must be clearly and distinctly stated. State v. Singh, 34 Idaho 742, 203 P. 1064 (1921).

Where there are several ways of violating the statute specified, indictment may, in single count, charge commission of offense in any or all of ways specified, if different acts are not repugnant and constitute component parts of one transaction. State v. Brown, 36 Idaho 272, 211 P. 60 (1922); State v. Alvord, 46 Idaho 765, 271 P. 322 (1928).

Indictment or information should state facts and not legal conclusions. State v. Bowman, 40 Idaho 470, 235 P. 577 (1925).

Accused is entitled to statement of facts relied upon, and if these are not contained in statute denouncing offense they must be supplemented by pleader in drawing indictment or information. State v. Bowman, 40 Idaho 470, 235 P. 577 (1925).

Doing and causing thing to be done are same in law; therefore count is not double which charges both. State v. Alvord, 46 Idaho 765, 271 P. 322 (1928).

Information charging defendant with operating a motor vehicle on the public highway and that he did wilfully, unlawfully, negligently, recklessly and in a careless manner and while under influence of intoxicating liquor, and without caution or circumspection in regard for the safety of others, drive his automobile across the center line of said highway and on the left side of the road in the front of another automobile and that a passenger as a result received mortal wounds and injuries and in such manner such defendant did in reckless disregard for the safety of others, but without malice, kill decedent, charged one offense and was sufficient. State v. Anderson, 82 Idaho 293, 352 P.2d 972 (1960).

An information alleging facts constituting both assault with a deadly weapon and assault with intent to commit murder and entitled “Assault With a Deadly Weapon With Intent to Murder” was sufficient to charge both offenses and defendant was not prejudiced by the failure to separately name the two offenses. State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968), cert. denied, 395 U.S. 977, 89 S. Ct. 2129, 23 L. Ed. 2d 765 (1969). Informations must be specific in their content for two reasons: so the accused has a means to prepare a proper defense and so a defendant can protect himself against subsequent prosecution based on the commission of the same act. State v. Gumm, 99 Idaho 549, 585 P.2d 959 (1978).

An information or indictment which does not specifically list the property the defendant was charged with taking fails to meet the statutory and constitutional requirements of specificity. State v. Gumm, 99 Idaho 549, 585 P.2d 959 (1978).

Information which stated that one horned, brindle, heifer cow being the property of Jeannine Martin was allegedly stolen by defendant between the middle of October, 1974, and the end of February, 1975, was sufficient to adequately set out the nature and circumstances of the offense charged and gave a sufficient description of the animal alleged to have been taken, so as to enable a person of ordinary understanding to adequately know the details of the crime the state charged and intended to prove at the trial. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

Waiver.

Where defendant contended on appeal that the information failed to meet the requirements of§ 19-1409 and this section, his failure to challenge the sufficiency of the information by demurrer constituted a waiver of any objection to the information on these grounds. State v. Segovia, 93 Idaho 594, 468 P.2d 660 (1970).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section, which comprised Cr. Prac. 1864, § 237; R.S., R.C., & C.L., § 7681; C.S., § 8829; I.C.A.,§ 19-1313, was repealed by S.L. 1963, ch. 159, § 1, effective March 19, 1963.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Alibi Defense.

Assertion of an alibi defense does not necessarily make time of the offense a material element which must be proven by the state. State v. Taylor, 118 Idaho 450, 797 P.2d 158 (Ct. App. 1990).

Child Sexual Abuse Cases.

In child sexual abuse cases involving a continuous course of sexual abuse, and evidence of frequent, secretive offenses over a period of time, credibility, not alibi, is the only issue, and detailed specificity in the information as to the times of the offenses is not required. State v. Taylor, 118 Idaho 450, 797 P.2d 158 (Ct. App. 1990).

Complaints.

Rule for stating time at which an offense was committed should be no more exacting for complaints in magistrates’ courts than that prescribed by this section for indictments. State v. Main, 37 Idaho 449, 216 P. 731 (1923).

In General.

Where information alleged that burglary was committed on or about the second day of June and the proof was that it was committed some time before midnight on June first, such evidence was not fatal since it is sufficient if proof show the commission of crime at any time prior to filing of information and within statute of limitations. State v. Mundell, 66 Idaho 297, 158 P.2d 818 (1945).

While it would be easier for defendants if the state alleged the specific date and hour it expected to prove the burglary alleged to have been committed, based upon the information at hand before the complaint was filed, the law does not require the precise time to be given. State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968).

Lewd Conduct with Minor.

Since time is not a material ingredient in the offense of lewd and lascivious conduct with a minor, the information need only be specific enough to enable the defendant to prepare his defense and to protect him from being subsequently prosecuted for the same offense. State v. Roberts, 101 Idaho 199, 610 P.2d 558 (1980).

Sufficiency of Information.

Where information charged that larceny occurred during a four and one-half months period, where the time of the offense was not a material element in the larceny charge and where the nature of the offense, taking an ambulatory stock animal from pasture, was such that exact date of taking would not likely have been discovered absent a confession by the guilty party, the information filed against defendant was adequate, since an information need not contain the precise time at which the crime was committed when time is not a material element of the crime charged. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

Where counts I-III of the information stated that the alleged offenses of lewd and lascivious conduct with a child under the age of 16 occurred “on or about the months between June and September, 1976,” counts IV and V stated that the alleged offenses occurred “on or about the months of May, 1976,” and “of June, 1976,” respectively, and where defendant never suggested any defense of alibi at trial, all of the counts were set forth with sufficient specificity to allow him to prepare his defense and to protect him from double jeopardy. State v. Roberts, 101 Idaho 199, 610 P.2d 558 (1980).

Cited

Because time is not a material element of the offense of lewd and lascivious conduct with a minor, because child abuse cases involve evidence of a number of secretive offenses over a period of time, and because an information need only be specific enough to enable a defendant to prepare a defense, apprise him of the statute violated and protect him from subsequent prosecution for the same offense, the information charging defendant with lewd and lascivious act or acts with each of his two daughters, between 1976 and 1979, at which time his daughters were minors, was sufficiently specific as to time and not flawed. State v. Coleman, 128 Idaho 466, 915 P.2d 28 (Ct. App. 1996). Cited State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967); State v. Neal, 155 Idaho 484, 314 P.3d 166 (2013).

ALR.

§ 19-1415. Erroneous designation of person injured.

When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.

History.

Cr. Prac. 1864, § 239, p. 242; R.S., R.C., & C.L., § 7683; C.S., § 8831; I.C.A.,§ 19-1315.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Allegation of Ownership.

An information alleging C. to be the owner of the stolen property is supported by proof showing that he was in possession of the property as agent of the real owner with full power to sell or otherwise dispose of the same. State v. Farris, 5 Idaho 666, 51 P. 772 (1897).

Information charging larceny of two mares from G. M. B. was supported by proof that the mares were the property of G. M. B. and R. L. B. State v. Rathbone, 8 Idaho 161, 67 P. 186 (1901).

An information for larceny which alleges title to thing stolen to be in B is supported by proof of property in the firm of B. & J. State v. Ireland, 9 Idaho 686, 75 P. 257 (1904).

Failure to allege ownership of burglarized building is not fatal defect. State v. Bull, 47 Idaho 336, 276 P. 528 (1929).

Ownership of stolen property need not be alleged with precision where the alleged crime caused an injury to another. State v. Kenworthy, 68 Idaho 312, 193 P.2d 838 (1948).

An indictment for larceny which alleges title to the articles stolen to be in P. I. Company is sufficient without alleging that the Company is a corporation or a partnership or an entity capable of owning title to property. State v. Kenworthy, 68 Idaho 312, 193 P.2d 838 (1948).

Application.

Defendant in trial on information for burglary was not misled as to premises he was charged with burglarizing by introduction into evidence of pasteboard box he was carrying containing merchandise from “golf shop” conducted by professional golfer on premises described in information as “being in the possession of and occupied by the Pocatello Golf and Country Club, Inc.,” where entry had been made from the patio into both the “barroom” where defendant took some liquor, and into the “golf shop” where the defendant had taken merchandise. State v. Love, 76 Idaho 378, 283 P.2d 925 (1955).

Proof Limited.

When the information names the person intended to be defrauded, the prosecution is confined, in its proof of intent to defraud to the person named. State v. McDermott, 52 Idaho 602, 17 P.2d 343 (1932).

Variance.

Fact that information charges murder to have been committed on one whose true name is unknown, while the evidence showed killing of a person of known name, is not a fatal variance. State v. St. Clair, 6 Idaho 109, 53 P. 1 (1898).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Bigamy.

The word “bigamy” need not be defined in indictment. United States v. Kuntze, 2 Idaho 480, 21 P. 407 (1889).

Fear and Fearful.

In view of the jury instructions given, which adequately apprised the jury of the elements that must be proved in order to convict for rape, the inclusion of “fear” and “fearful” language in the information, which did not relate to elements of the crime, was harmless. State v. Headlee, 121 Idaho 979, 829 P.2d 869 (Ct. App. 1992).

Intoxicants.

Word “drink” in ordinary sense means use of liquid as beverage to slake thirst which may be thirst for intoxicants. State v. Woodward, 41 Idaho 353, 238 P. 525 (1925).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Complaint, information or indictment need not negate statutory defenses to certain offenses,§ 19-1433.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Homicide.

Failure of indictment for murder to allege the killing to have been done deliberately and premeditatedly is not fatal, where it alleges the killing to have been done with malice aforethought. People v. Ah Choy, 1 Idaho 317 (1870).

Where acts or elements which constitute offense of involuntary manslaughter are sufficiently charged to enable a person of common understanding to know what is intended, the information is sufficient even though it fails to allege that defendant is charged with involuntary manslaughter and makes the general charge of manslaughter. Facts alleged, rather than the designation of offense, control. State v. Mickey, 27 Idaho 626, 150 P. 39 (1915).

Jurisdiction.

To confer jurisdiction upon the district court, a charging document must allege that the defendant committed a criminal offense within the state of Idaho. State v. Hoagland, 160 Idaho 920, 382 P.3d 369 (Ct. App. 2016).

When the charging document’s jurisdictional sufficiency is challenged after trial, it will be upheld unless it is so defective that it does not, by any fair or reasonable construction, charge the offense for which the defendant was convicted. State v. Hoagland, 160 Idaho 920, 382 P.3d 369 (Ct. App. 2016).

Larceny.

An information alleging C. to be the owner of the stolen property is supported by proof showing that he was in possession of the property as agent of the real owner with full power to sell or otherwise dispose of the same. State v. Farris, 5 Idaho 666, 51 P. 772 (1897).

Ownership of stolen property need not be alleged with precision where the alleged crime caused an injury to another. State v. Kenworthy, 68 Idaho 312, 193 P.2d 838 (1948).

An indictment for larceny which alleges title to the articles stolen to be in P. I. Company is sufficient without alleging that the Company is a corporation or a partnership or an entity capable of owning title to property. State v. Kenworthy, 68 Idaho 312, 193 P.2d 838 (1948).

Omission of Title.

Failure of indictment to state title of action is not fatal. People v. Walters, 1 Idaho 271 (1869).

Robbery.

A charge that an accused took money from the person, or from the immediate presence of the person, and that it was taken against his will and by means of force or fear, constituted the single charge of robbery and such a charge afforded the accused proper means by which to prepare a defense of the particular crime charged. State v. Griffith, 94 Idaho 76, 481 P.2d 34 (1971), superseded by statute on other grounds as stated in, State v. Bradley, 120 Idaho 566, 817 P.2d 1090 (Ct. App. 1991).

Sufficiency in General.

While right to bill of particulars is not recognized by Idaho statutes, Supreme Court has held that defendant would be entitled to such bill in sound discretion of court. State v. Rathbone, 8 Idaho 161, 67 P. 186 (1901); State v. Gee, 48 Idaho 688, 284 P. 845 (1930), overruled on other grounds, State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937).

Where information appears to contain every element of offense intended to be charged and sufficiently apprises defendant of what he must be prepared to meet, it is sufficient. State v. Cosgrove, 36 Idaho 278, 210 P. 393 (1922).

All that is necessary is that information be sufficient to advise defendant of nature of charge against him and that it describes offense with such particularity as to serve as shield in case of second prosecution for same offense. State v. Bowman, 40 Idaho 470, 235 P. 577 (1925).

Information was not subject to dismissal on ground of uncertainty, where it alleged that defendant at designated place in county and state while under the influence of intoxicating liquor carelessly, negligently, recklessly, and without due caution and wilfully, unlawfully, feloniously, but without malice, drove automobile across highway at high speed without warning against body of a human being with great force producing injuries upon body of designated person from which he died, and thereby committed manslaughter. State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951).

An accused is entitled to know for what offense he is being charged. State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), appeal dismissed, 345 U.S. 834, 73 S. Ct. 834, 97 L. Ed. 2d 1364 (1953).

Information, which charged defendant with committing lewd and lascivious acts committed on female under the age of 16 with the intent of arousing, appealing to and gratifying the lusts and passions of sexual desires of said defendant and said minor, and which added “with the intent and purpose of having sexual intercourse with the said minor child,” the last sentence was surplusage, since state intended to charge defendant under§ 18-1508, to wit, lewd and lascivious conduct. State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), appeal dismissed, 345 U.S. 834, 73 S. Ct. 834, 97 L. Ed. 2d 1364 (1953).

An information for aggravated battery that alleged that the defendant assaulted the prosecuting witness with premeditated design, striking and beating him with his fists and kicking him and “thereby wounding and inflicting grievous bodily injury” upon him was sufficient to enable a person of ordinary understanding to know what was intended, i.e., that the injuries inflicted were in nature more serious than that which would result from a simple battery. State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967).

Information which stated that one horned, brindle, heifer cow being the property of Jeannine Martin was allegedly stolen by defendant between the middle of October, 1974, and the end of February, 1975, was sufficient to adequately set out the nature and circumstances of the offense charged and gave a sufficient description of the animal alleged to have been taken, so as to enable a person of ordinary understanding to adequately know the details of the crime the state charged and intended to prove at the trial. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

The information included all of the elements of the offense and sufficiently informed defendant of those acts for which he was accused, the pleading identified the substance that defendant was alleged to have possessed and the date and place of possession, and in the absence of any suggestion in the information that the state was charging defendant with possession of only a portion of the cocaine found on that date, defendant was on notice that he must be prepared to present a defense regarding all of the cocaine so found. State v. Holcomb, 128 Idaho 296, 912 P.2d 664 (Ct. App. 1995). Absence of a signature on the charging document is a defect, but it does not affect whether the document adequately alleges that the defendant committed a criminal offense in the state of Idaho. State v. Hoagland, 160 Idaho 920, 382 P.3d 369 (Ct. App. 2016).

Venue.

Venue of offense must be laid in complaint, indictment, or information. State v. Cole, 31 Idaho 603, 174 P. 131 (1918).

Motion in arrest of judgment based on ground that information failed to state that crime was committed in county in which filed, or in state of Idaho was proper, since district court did not have jurisdiction. State v. Slater, 71 Idaho 335, 231 P.2d 424 (1951).

Information which charged that crime was committed in town, county and state within jurisdiction of court held sufficient on motion to dismiss based on lack of venue. State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951).

Although none of the questions raised by defendant upon appeal was material, the supreme court reversed defendant’s conviction where it appeared on the face of the record that the state had failed to plead the locus criminis in the information by which defendant was charged. State v. Mowrey, 91 Idaho 693, 429 P.2d 425 (1967).

Cross References.

Formal defects in general disregarded,§ 19-3702.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Analysis

Clerical Errors.

Indictment for libel is sustained under this section where it sets out the libelous matter in haec verba prefaced by the words, “that is to say,” although it did not use the technical phrase “to the tenor and effect following,” or the “following words and figures.” Bonney v. State, 3 Idaho 288, 29 P. 185 (1892).

Clerical error charging commission of the crime on November 15th, 1905, whereas the information was filed on March 15, 1905, is not fatal where it alleges that, prior to filing thereof, defendant had had a preliminary examination, and otherwise identifies the date intended to be charged as November 15, 1904. State v. Roland, 11 Idaho 490, 83 P. 337 (1905).

Where indictment was inadvertently not signed by the foreman of the grand jury and then, due to a clerical error, carried the wrong date, but the defects were timely cured by reconvening the same grand jury and addressing the errors, and defendant did not object to the court’s remedy, the indictment didi not have to be dismissed. State v. Hall, 163 Idaho 744, 419 P.3d 1042 (2018), cert. denied, — U.S. —, 139 S. Ct. 1618, 203 L. Ed. 2d 897 (2019).

Construction.

Rule of liberal construction of indictments and informations has been adopted in this state. State v. Caldwell, 21 Idaho 663, 123 P. 299 (1912).

Jurisdictional Defects.

Even though a plea of guilty was entered by the defendant herein, that does not preclude him, on appeal, from raising jurisdictional defects in the information. State v. Grady, 89 Idaho 204, 404 P.2d 347 (1965).

Substantial Compliance.

Failure to charge that intoxicating liquors were drunk “as a beverage” will not render information defective. State v. Woodward, 41 Idaho 353, 238 P. 525 (1925).

Indictment was not invalid on the ground that there was no indorsement of true bill signed by foreman where words “true bill” were placed under title of court just before body of indictment and name of foreman with title appeared below body of indictment since error, if any, was not prejudicial, as there was a substantial compliance with the statute. Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953).

Substantial Rights of Defendant.

Amendment of the caption of an information alleging facts constituting aggravated battery by changing the designation of the offense charged from “Aggravated Assault” to “Aggravated Battery” did not prejudice any substantial right of the defendant or entitle him to a preliminary hearing on the amended information. State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967).

An information alleging facts constituting both assault with a deadly weapon and assault with intent to commit murder and entitled “Assault With a Deadly Weapon With Intent to Murder” was sufficient to charge both offenses, and defendant was not prejudiced by the failure to separately name the two offenses. State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968), cert. denied, 395 U.S. 977, 89 S. Ct. 2129, 23 L. Ed. 2d 765 (1969).

Although the inclusion of the word “not” significantly changes the nature of the offense, it appeared that defendant was aware that the offense was a felony and amending the information did not prejudice him in preparing a defense. State v. Darbin, 109 Idaho 516, 708 P.2d 921 (Ct. App. 1985).

Uncertainty.

Cited

Information was not subject to dismissal on ground of uncertainty, where it alleged that defendant at designated place in county and state while under the influence of intoxicating liquor carelessly, negligently, recklessly, and without due caution and wilfully, unlawfully, feloniously, but without malice drove automobile across highway at high speed without warning against body of a human being with great force producing injuries upon body of designated person from which he died, and thereby committed manslaughter. State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951). Cited In re Marshall, 6 Idaho 516, 56 P. 470 (1899); State v. Mickey, 27 Idaho 626, 150 P. 39 (1915); State v. Andrus, 29 Idaho 1, 156 P. 421 (1916); State v. Lottridge, 29 Idaho 53, 155 P. 487 (1916); State v. Poynter, 34 Idaho 504, 205 P. 561 (1921); State v. Gee, 48 Idaho 688, 284 P. 845 (1930); State v. Montgomery, 48 Idaho 760, 285 P. 467 (1930); State v. Stratford, 55 Idaho 65, 37 P.2d 681 (1934); State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937); State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941); State v. Ayres, 70 Idaho 18, 211 P.2d 142 (1949); State v. Anderson, 82 Idaho 293, 352 P.2d 972 (1960); State v. Martinez, 89 Idaho 232, 404 P.2d 573 (1965); State v. Schmierer, 159 Idaho 768, 367 P.3d 163 (2016).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Amendment After Pleading.

The amendment by the trial court, striking from the information that the defendant was convicted of felony and sentenced to the penitentiary, after defendant had entered a plea to the information, was not an abuse of discretion, the question of the propriety of the amendment being addressed to the sound discretion of the trial court and no showing being made of prejudice of the defendant’s rights by such order. State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963).

Amendment Injecting New Issues.

Complaint charging defendant, an Indian, with the crime of illegal possession of a deer carcass during closed season, could not be amended in district court on appeal from probate court [now magistrate division of district court] by alleging the taking and killing of the deer on privately owned lands, since the amendment injected new issues which were not tried in probate court [now magistrate division of district court]. State v. Powaukee, 78 Idaho 257, 300 P.2d 488 (1956).

In a burglary prosecution, since the trial court’s allowing the prosecution to amend the information adding the words “in the nighttime” did not add or change the offense and the accused was neither surprised nor prejudiced by such amendment, the court did not err. State v. Ranstrom, 94 Idaho 348, 487 P.2d 942 (1971).

Defendant’s conviction for sexual abuse of a child under 16 years of age was void, because the prosecuting attorney had no authority to issue an amended indictment for a crime that was not charged in the original indictment and that was not an included offense of the originally-charged crime of lewd conduct with a child under 16 years of age; the amended indictment was a nullity, as the new charge required a new indictment from the grand jury. State v. Flegel, 151 Idaho 525, 261 P.3d 519 (2011).

Appeal.

A demurrer by the defendant to an information for burglary that the information did not conform to requirements of§ 19-1411 in that the information was not direct and certain as regards the offense charged, which demurrer was sustained, and judgment entered in the minutes, was a judgment from which the state could appeal where it indicated that it did not desire to amend. State v. Eubanks, 77 Idaho 439, 294 P.2d 273 (1956).

Court’s Discretion.

Subsection (e) of Idaho R. Crim. P. 7 authorizes the amendment of an information any time before the prosecutor rests, as long as no new offense is charged and the defendant is not prejudiced; subject to those caveats, the determination of whether the prosecutor should be allowed to amend the information rests in the trial court’s discretion. State v. Gauna, 117 Idaho 83, 785 P.2d 647 (Ct. App. 1989).

Where defendant received adequate notice of the charges as an amendment charging him as a persistent violator was filed several weeks before trial, the trial judge did not abuse his discretion by allowing the amendment. State v. Gauna, 117 Idaho 83, 785 P.2d 647 (Ct. App. 1989).

County.

Where the indictment sets out clearly and in language easily understood the facts sufficient to establish the jurisdiction of the district court, so that it was easily understood, both before and after the amendment, where the offense occurred, the court did not err in allowing the amendment of the indictment by the insertion of the words “Ada County” after the words “Boise County.” State v. Bullis, 93 Idaho 749, 472 P.2d 315 (1970).

Designation of Code Section.

Where the indictment sets out clearly and in language easily understood the act or omission constituting the offense charged, so that it was easily understood, both before and after the amendment, what offense was charged, the court did not err in permitting the amendment of the designation of the code section that the accused was charged of violating. State v. Bullis, 93 Idaho 749, 472 P.2d 315 (1970).

False Pretenses.

Where indictment for swindling charged accused with having “executed” a fictitious contract, an amendment charging that he “received” it did not charge a new or different offense, where it otherwise charged him with having fabricated the contract. State v. Dunn, 60 Idaho 568, 94 P.2d 779 (1939).

In General.

It was not error to permit the amendment of an information which charged acts constituting aggravated battery by changing the caption from “Aggravated Assault” to “Aggravated Battery.” State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967).

The state can amend an information, without requiring a new probable cause determination, where the amended information does not add to or change the offense with which the defendant is charged, but merely adds an element necessary to charge the offense correctly. State v. Stewart, 149 Idaho 383, 234 P.3d 707 (2010).

No Prejudicial Effect.

Where the defendant in a rape prosecution had been aware of the victim’s age before the filing, one day prior to trial, of an amended information alleging statutory rape and he did not make a claim that he could have disputed her age, the defendant’s rights were not prejudiced from the amendment. State v. LaMere, 103 Idaho 839, 655 P.2d 46 (1982).

Where state presented evidence of two incidents of improper touching of the victim that were not the bases of the charges and were not described at the preliminary hearing, that did not amount to a fatal variance because the jury could not have used that evidence to convict defendant where that testimony was specifically admitted as evidence of other misconduct for purposes that were permissible under Idaho R. Evid. 404(b) and immediately after presentation of this evidence, the court gave the jurors a limiting instruction. State v. Jones, 140 Idaho 41, 89 P.3d 881 (Ct. App. 2003).

Threat of Enhanced Sentence.

Indictment charging defendant with murdering his wife by giving her an overdose of drugs or by suffocating her was not impermissibly amended to allege murder by overdose or suffocation because the amendment did not charge defendant with a new offense, but merely alleged an alternative way that defendant might have committed the crime. Further, the amendment did not prejudice defendant’s substantial rights because it was made nearly one whole year before trial and, thus, gave defendant more than adequate time to prepare his defense relating to the allegation of murder by suffocation. The amendment did not subject defendant to double jeopardy because, if the jury had convicted or acquitted defendant under the original indictment, he could not later be tried on the amended indictment. State v. Severson, 147 Idaho 694, 215 P.3d 414 (2009). Threat of Enhanced Sentence.

Threat of enhanced sentence.

The district court did not err when it concluded that defendant voluntarily pled guilty to a charge of aggravated assault upon a law enforcement officer, where defendant entered his plea to avoid the prosecutor’s threat of an enhanced sentence and where the prosecutor’s threat was allegedly mentioned for the first time during the hearing at which defendant was to enter his plea. State v. Storm, 123 Idaho 228, 846 P.2d 230 (Ct. App. 1993).

Waiver.

Where defendant pleaded guilty on second trial to information amended at first trial, information as amended having been read at second trial, any irregularity in the amendment was waived. State v. Ward, 51 Idaho 68, 1 P.2d 620 (1931).

ALR.

§ 19-1421. Presumptions and facts judicially noticed.

Neither presumptions of law nor matters of which judicial notice is taken, need be stated in an indictment.

History.

Cr. Prac. 1864, § 244, p. 243; R.S., R.C., & C.L., § 7688; C.S., § 8836; I.C.A.,§ 19-1321.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Double Jeopardy.

Defendants later prosecution for perjury committed during a prior trial at which he was convicted of exhibiting a deadly weapon did not constitute double jeopardy. State v. Crawford, 94 Idaho 463, 491 P.2d 180 (1971).

Informations.

This statute is equally applicable to an information filed by the prosecuting attorney under§ 19-1301 et seq. State v. Thomas, 82 Idaho 473, 355 P.2d 674 (1960).

This statute is equally applicable to an information for perjury. State v. Crawford, 94 Idaho 463, 491 P.2d 180 (1971).

Sufficiency of Indictment or Information.

Indictment charging defendant with perjury in denying statements made before the grand jury was insufficient, where indictment set forth case’s title, docket number and court, but did not in any manner set forth what issue was, or nature of point in question. State v. Lowe, 60 Idaho 98, 88 P.2d 502 (1939).

Information charging defendant with perjury in connection with his application for a marriage license was fatally defective and properly dismissed, because it failed to name officer before whom oath was taken and did not allege authority of officer to administer the oath as required by this section, and did not allege that false statement was made in written affidavit sworn to before the county auditor as required by§ 32-404. State v. Thomas, 82 Idaho 473, 355 P.2d 674 (1960).

While an indictment or information containing all the elements set out in this section is sufficient, the section does not say that an indictment or information is insufficient if it does not specifically set forth the name of the identical person before whom the oath was taken. State v. Martinez, 89 Idaho 232, 404 P.2d 573 (1965).

An information for perjury does not have to allege the jurisdiction of the court before which the offense of perjury was allegedly committed. State v. Crawford, 94 Idaho 463, 491 P.2d 180 (1971).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Cross References.

Accessories defined,§ 18-205. Principals defined,§ 18-204.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Charge Against Accessory.

This section has so changed the rules of pleading that it is not necessary to charge an accessory before the fact as such. People v. Ah Hop, 1 Idaho 698; but an indictment charging an accessory as such is not bad. Territory v. Guthrie, 2 Idaho 432, 17 P. 39 (1888).

Construction with Other Law.

This section and Idaho R. Crim. P. 7 can be reasonably interpreted so that there is no conflict between them. Rule 7(b) requires the charging document be a plain, concise and definite written statement of the essential facts constituting the offense charged. This section provides that, in the case of aiding and abetting, the “essential facts” are only those facts that are required in charging the principal. State v. Johnson, 145 Idaho 970, 188 P.3d 912, cert. denied, 555 U.S. 1053, 129 S. Ct. 638, 172 L. Ed. 2d 623 (2008).

Double Jeopardy.

Former double jeopardy statute,§ 18-301 (repealed 1995), created no exception to imputed responsibility under this section; although a defendant may not receive multiple convictions or punishments for the same act, he is responsible for all distinguishable acts, including those of others in concert with him. State v. Sensenig, 110 Idaho 83, 714 P.2d 52 (Ct. App. 1985).

Evidence.

Where evidence showed that defendants charged with robbery, attempted extortion from parties occupying a hotel room, attempted to get into the room, and followed up by taking money by force, jury was justified in assuming that defendants acted in concert. State v. Robinson, 71 Idaho 290, 230 P.2d 693 (1951).

In a trial of two defendants for robbery, there was no variance between the information drawn in conformity to this section, charging each of the defendants as principals, and evidence which failed to show which of the defendants actually took the property alleged to have been stolen. State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968).

In a robbery prosecution where defendants denied acting in concert, but where the evidence showed that two of the defendants took the victim’s wallet while the other two defendants were beating victim, all four defendants were properly convicted of robbery despite defendants’ contention that state did not prove elements of robbery as to each defendant. State v. Gerhardt, 97 Idaho 603, 549 P.2d 262 (1976).

Defendant’s conviction for aggravated assault was upheld, even though his lone kick to a victim’s backside while the victim was being bound with duct tape was not likely to produce great bodily harm, because the actions of his group as a whole were sufficient for a reasonable jury to find a likelihood of great bodily harm; there is no legal distinction between the person who directly commits a criminal act and a person who aids and abets in its commission. State v. Horejs, 143 Idaho 260, 141 P.3d 1129 (Ct. App. 2006).

Evidence was sufficient to convict defendant of first-degree murder under an aiding and abetting theory, because there was evidence that: (1) defendant and his accomplice were in the house lying in wait for the victim; (2) two knives were used in the murder, both of which potentially caused the victim’s death; (3) video footage taken immediately before and after the murder showed defendant’s preparation for and involvement in the murder. It was not necessary for the state to prove that defendant inflicted the fatal wound. State v. Adamcik, 152 Idaho 445, 272 P.3d 417, cert. denied, 508 U.S. 839, 133 S. Ct. 141, 184 L. Ed. 2d 68 (2012).

Instructions.

Instruction that one who aids or abets in commission of a crime, though absent at time of its commission, shall be prosecuted, tried, and punished as a principal is erroneous, but is cured by other instructions to the effect that the jury must find from the evidence, beyond a reasonable doubt, that defendant acted knowingly, and with a guilty purpose and intent. This last instruction excludes a possibility of conviction because defendant innocently aided in the perpetration of a crime. State v. Corcoran, 7 Idaho 220, 61 P. 1034 (1900).

It is not error to instruct jury in the language of this section. State v. Bland, 9 Idaho 796, 76 P. 780 (1904).

Where trial judge indicated that there was sufficient evidence from which a theory of aiding and abetting could be derived even if the jury determined that another person did the shooting, the trial judge did not err in giving aiding and abetting instructions to the jury. State v. Wheeler, 109 Idaho 795, 711 P.2d 741 (Ct. App. 1985).

Jury instruction on aiding and abetting did not constitute an impermissible variance or a constructive amendment of the charging document because Idaho has abolished the distinction between principals and aiders and abettors, and it is well established in Idaho that it is unnecessary to charge a defendant with aiding and abetting. State v. Johnson, 145 Idaho 970, 188 P.3d 912, cert. denied, 555 U.S. 1053, 129 S. Ct. 638, 172 L. Ed. 2d 623 (2008).

District court did not err by failing to give a unanimity instruction on aiding and abetting because aiding and abetting was not a separate offense from the substantive crime of murder. State v. Johnson, 145 Idaho 970, 188 P.3d 912, cert. denied, 555 U.S. 1053, 129 S. Ct. 638, 172 L. Ed. 2d 623 (2008).

Parties.

Information, which charged defendant with commission of crime was not defective in that other participants were not named in information, if other participants were never apprehended or given a preliminary examination, since accused may be tried as either a principal or accessory. State v. So, 71 Idaho 324, 231 P.2d 734 (1951).

Defendant was properly charged and convicted as a principal for first degree murder though he may have left store a few seconds ahead of co-defendant’s shooting of proprietor, where both defendants entered store for the purpose of committing armed robbery. State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953), overruled on other grounds, State v. Shepard, 94 Idaho 227, 486 P.2d 82 (1971).

All parties involved in the commission of a crime are principals and no reference to a defendant as an accessory is required; if an accused is fully advised of the acts he is charged with committing, he is presumed to know that he would be a principal and guilty as such whether he directly committed the acts charged or aided and abetted in their commission by another. State v. Wheeler, 109 Idaho 795, 711 P.2d 741 (Ct. App. 1985).

Proof.

Where information charged defendant as a principal, but proof showed that defendant was only an accessory, there was not a fatal variance. State v. Ayres, 70 Idaho 18, 211 P.2d 142 (1949).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Multiplicity.

The issue of multiplicity may arise in an information as well as an indictment. Sanchez v. State, 127 Idaho 709, 905 P.2d 642 (Ct. App. 1995).

In charging defendant of lewd conduct with a minor child under sixteen, a violation of§ 18-1508, counts I and II using identical language, the state was not charging defendant twice for one single act, nor were they charging him for a continuous course of conduct; rather, the state was charging defendant for two separate and distinct acts that occurred in the same manner and during the same span of time where the victim testified to two incidents of manual-genital touching that occurred within that time period. State v. Jones, 140 Idaho 41, 89 P.3d 881 (Ct. App. 2003).

Same Act or Transaction.

It was proper to charge murder in two counts in the same information and to try defendant for both of the alleged offenses before the same jury where both victims of the fatal shooting were found in the same apartment at the same time. State v. Radabaugh, 93 Idaho 727, 471 P.2d 582 (1970).

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to correct the enacting legislation

Chapter 22 of title 37, referred to in this section, was repealed by S.L. 1979, ch. 131, § 2. For present comparable provisions, see§ 37-2701 et seq.

Chapter 29 of title 37, referred to in this section, was repealed by S.L. 1971, ch. 215, § 3. For present comparable provisions, see§ 37-2701 et seq.

Chapter 30 of title 37, referred to in this section, was repealed by S.L. 1971, ch. 215, § 3. For present comparable provisions, see§ 37-2701 et seq.

The provisions of chapters 28, 31, 32, and 33 of title 37, referred to in this section, were repealed by S.L. 1971, ch. 215, § 3 and S.L. 1971, ch. 340, § 6. Present comparable provisions may generally be found at chapter 27, title 37.

Effective Dates.

Section 2 of S.L. 1970, ch. 186 declared an emergency. Approved March 13, 1970.

Cross References.

Arraignment on indictment or information, Idaho R. Crim. P. 10.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Am. Jur. 2d.

C.J.S.

ALR.

Admissibility of confession or other statement made by defendant as affected by delay in arraignment — Modern state cases. 28 A.L.R.4th 1121.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

In General.

Arraignment consists of reading indictment or information to defendant and delivering to him copy thereof and asking him if he pleads guilty or not guilty to such indictment or information. State v. Poynter, 34 Idaho 504, 205 P. 561, 208 P. 871 (1921).

Waiver.

If defendant authorizes counsel to enter a plea of guilty in his absence, but is present in person for judgment and is advised by the court of his plea and when asked if he had any legal cause to show why judgment should not be pronounced, answers that he has none, such defendant, after acquiescence for two years, has waived right to plead in person and can not successfully attack such judgment. State v. Poynter, 34 Idaho 504, 205 P. 561, 208 P. 871 (1921).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. See, generally, the Idaho Criminal Rules, adopted effective July 1, 1980, in Volume 2 of the Idaho Court Rules.

Advice as to Court Appointed Counsel.

The court did not comply with former version of this section by merely asking the defendant if he desired counsel without also advising him of his right to have counsel appointed by the court at public expense if he was without funds with which to employ counsel; the necessity for such advice was not obviated by the fact that the defendant had previously been so advised by another court when arraigned upon another charge. Pharris v. State, 91 Idaho 456, 424 P.2d 390 (1967); Abercrombie v. State, 91 Idaho 586, 428 P.2d 505 (1967) (The provision upon which this decision was based was deleted from this section by S.L. 1967, ch. 181, § 20, and is now found in§ 19-853.).

Appeal.

Defendant charged with burglary was not deprived of his right of appeal, though he did not have counsel for eight days prior to time his motion for a new trial was overruled, and for 51 days afterward, if he did not ask the court for counsel, or show he was unable to secure counsel. State v. Kleier, 69 Idaho 491, 206 P.2d 513 (1949).

Construction.

It is public policy of state to accord every person accused of crime, not only fair and impartial trial, but every reasonable opportunity to prepare his defense and vindicate his innocence. State v. Montroy, 37 Idaho 684, 217 P. 611 (1923).

Action of court in not advising defendant of his right to counsel, or asking him if he desired or was able to employ counsel, but instead instantly assigning him such and fixing date for plea on same day is not compliance with terms of statute which are mandatory. State v. Poglianich, 43 Idaho 409, 252 P. 177 (1927).

The requirements of this section were not complied with by the trial judge asking the defendant if he had an attorney and secondly, if he wanted an attorney, as the defendant necessarily must be informed by the court that it is his right to have counsel before arraignment, further advising that if he were unable to employ counsel, it was the duty of the court to assign counsel to defend him. State v. Thurlow, 85 Idaho 96, 375 P.2d 996 (1962).

Counsel at Interrogation.

A defendant who refused counsel at arraignment is not entitled to release under writ of habeas corpus for lack of counsel at interrogation without an allegation that he was interrogated by police officers. Starkey v. State, 91 Idaho 74, 415 P.2d 717 (1966).

A defendant whose conviction became final before the decision in Escobedo v. Illinois , 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), was not entitled to release under writ of habeas corpus for lack of counsel at interrogation, the rule adopted in that decision not being given retroactive effect. Starkey v. State, 91 Idaho 74, 415 P.2d 717 (1966).

Court’s Duty to Appoint.

Where defendant appeals from the lower court to the district court, and he is poor and unable to procure the services of counsel, it is the duty of the district court to appoint counsel for his defense, even though proceedings were upon a “complaint” and not upon an indictment or “information.” State v. Eikelberger, 70 Idaho 271, 215 P.2d 996 (1950).

In General.

The court should inform the defendant of his right to counsel and that the court will appoint counsel for him at public expense if he is unable to employ counsel before asking defendant if he wishes to waive his right to counsel. Bement v. State, 91 Idaho 388, 422 P.2d 55 (1966) (see§ 19-853).

Rejection of Counsel.

In petition for writ of habeas corpus asserting a violation of constitutional rights, appellant was shown to have waived preliminary hearing upon complaint being read to him and his rights being made known, that on arraignment in the district court he specifically stated he did not desire counsel and he being a man of more than average intelligence it was shown from the time of his arrest to the time of pronouncing sentence that he knew and was fully informed of his rights. Cobas v. Clapp, 79 Idaho 419, 319 P.2d 475 (1957), cert. denied, 356 U.S. 941, 78 S. Ct. 785, 2 L. Ed. 2d 816 (1958).

Waiver.

A defendant who knew of his right to counsel evidenced by the fact that he “demanded” that an attorney be appointed to him was held to have waived his right to counsel intelligently and with an understanding of its import when the evidence showed that he knew of the right by his own testimony and that he waived his right to counsel on four separate occasions. Jones v. State, 93 Idaho 859, 477 P.2d 101 (1970).

Where the trial court specifically advised defendant of his right to counsel at all stages of the proceedings and specifically informed him that the court would furnish him counsel if he wanted it, the defendant knowingly and voluntarily waived his right to counsel when judged by 1964 standards although the present criminal rules contemplate a more comprehensive explanation of all constitutional and statutory rights. State v. Alldredge, 96 Idaho 7, 523 P.2d 824 (1974). (Now see§ 19-853.).