Chapter 1 PRELIMINARY PROVISIONS

Sec.

§ 19-101. Legal conviction necessary to punishment.

No person can be punished for a public offense except upon a legal conviction in a court having jurisdiction thereof.

History.

Cr. Prac. 1864, § 5, p. 214; R.S., R.C., & C.L., § 7350; C.S., § 8616; I.C.A.,§ 19-101.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Iverson, 79 Idaho 25, 310 P.2d 803 (1957); State v. Brandt, 110 Idaho 341, 715 P.2d 1011 (Ct. App. 1986); State v. Villafuerte, 160 Idaho 377, 373 P.3d 695 (2016).

OPINIONS OF ATTORNEY GENERAL

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.

§ 19-102. Prosecution by indictment or information — Exceptions.

Every public offense must be prosecuted by indictment, or information, except:

  1. Where proceedings are had for the removal of civil officers of the state.
  2. Offenses arising in the militia when in actual service, and in the land and naval forces in time of war, or which this state may keep, with the consent of congress, in time of peace.
  3. Offenses tried in justices, and probate courts.

History.

Cr. Prac. 1864, § 6, p. 214; R.S., § 7351; am. 1899, p. 126; reen. R.C. & C.L., § 7351; C.S., § 8617; I.C.A.,§ 19-102.

STATUTORY NOTES

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.

CASE NOTES

Cited

Pittam v. Maynard, 103 Idaho 177, 646 P.2d 419 (1982).

RESEARCH REFERENCES

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.

§ 19-103. Criminal action defined.

The proceedings by which a party charged with a public offense is accused and brought to trial and punishment is known as a criminal action.

History.

Cr. Prac. 1864, § 7, p. 214; R.S., R.C., & C.L., § 7352; C.S., § 8618; I.C.A.,§ 19-103.

CASE NOTES

Cited

State v. Orr, 53 Idaho 452, 24 P.2d 679 (1933); City of Sandpoint v. Butigan, 91 Idaho 855, 433 P.2d 125 (1967).

§ 19-104. Parties to criminal actions.

A criminal action is prosecuted in the name of the state of Idaho, as a party, against the person charged with the offense.

History.

Cr. Prac. 1864, § 8, p. 214; R.S., R.C., & C.L., § 7353; C.S., § 8619; I.C.A.,§ 19-104.

CASE NOTES

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).

Cited

State v. Orr, 53 Idaho 452, 24 P.2d 680 (1933); State v. Baker, 156 Idaho 209, 322 P.3d 291 (2014).

§ 19-105. Defendant.

The party prosecuted in a criminal action is designated in this code as the defendant.

History.

Cr. Prac. 1864, § 9, p. 214; R.S., R.C., & C.L., § 7354; C.S., § 8620; I.C.A.,§ 19-105.

STATUTORY NOTES

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.

CASE NOTES

Cited

State v. Orr, 53 Idaho 453, 24 P.2d 680 (1933).

§ 19-106. Rights of defendant.

In a criminal action the defendant is entitled:

  1. To a speedy and public trial.
  2. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel.

History.

Cr. Prac. 1864, § 10, p. 214, first two subds.; R.S., R.C., & C.L., § 7355; C.S., § 8621; I.C.A.,§ 19-106.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Branch, 66 Idaho 528, 164 P.2d 182 (1945); State v. Wilbanks, 95 Idaho 346, 509 P.2d 331 (1973); State v. Stuart, 113 Idaho 494, 745 P.2d 1115 (Ct. App. 1987).

RESEARCH REFERENCES

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.

§ 19-107. Second prosecution prohibited.

No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.

History.

I.C.,§ 19-107, as added by 1972, ch. 336, § 2, p. 844.

STATUTORY NOTES

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.

CASE NOTES

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).

RESEARCH REFERENCES

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.

§ 19-108. Self-incriminating evidence — Restraint of person.

No person can be compelled in a criminal action to be a witness against himself, nor can a person charged with a public offense be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.

History.

Cr. Prac. 1864, § 12, p. 214; R.S., R.C., & C.L., § 7357; C.S., § 8623; I.C.A.,§ 19-108.

STATUTORY NOTES

Cross References.

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

CASE NOTES

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.

§ 19-109. Prerequisites to conviction.

No person can be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon a judgment of a probate or justice’s court, a jury having been waived, in a criminal case not amounting to a felony.

History.

Cr. Prac. 1864, § 13, p. 214; R.S., R.C., & C.L., § 7358; C.S., § 8624; I.C.A.,§ 19-109.

STATUTORY NOTES

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.

§ 19-110. Expedition of court proceedings.

In all criminal cases and juvenile fact finding hearings that involve a child victim or witness, the court and the prosecuting attorney shall take all appropriate actions to ensure a speedy trial in order to minimize the length of time the child must endure the stress of his or her involvement in the proceedings. In ruling on any motion or other request for a delay or continuance of any proceeding, the court shall consider and give weight to any adverse impact that the requested delay or continuance may have on the well-being of a child victim or witness, and findings of fact shall be made on this issue.

History.

I.C.,§ 19-110, as added by 1989, ch. 303, § 1, p. 758.

Chapter 2 PREVENTION OF PUBLIC OFFENSES

Sec.

§ 19-201. Lawful resistance.

Lawful resistance to the commission of a public offense may be made:

  1. By the party about to be injured.
  2. By other parties.

History.

I.C.,§ 19-201, as added by 1972, ch. 336, § 3, p. 844.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Mason, 111 Idaho 660, 726 P.2d 772 (Ct. App. 1986); State v. McNeil, 141 Idaho 383, 109 P.3d 1125 (Ct. App. 2005).

§ 19-201A. Legislative intent — Castle doctrine and stand your ground.

It is the intent of the legislature to incorporate provisions of the castle doctrine and stand your ground provided in Idaho case law and jury instructions into certain sections of this chapter and in section 18-4009, Idaho Code.

History.

I.C.,§ 19-201A, as added by 2018, ch. 222, § 3, p. 500.

STATUTORY NOTES

Compiler’s Notes.

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

§ 19-202. Resistance by threatened party.

  1. Resistance sufficient to prevent the offense may be made by the person about to be injured:
    1. To prevent an offense against his person, or his family, or some member thereof; or
    2. To prevent an illegal attempt by force to take or injure property in his lawful possession.
  2. A person acting pursuant to this section may use such degree and extent of force as would appear to be reasonably necessary to prevent the threatened injury. Reasonableness is to be judged from the viewpoint of a reasonable person placed in the same position and seeing and knowing what the person then saw and knew without the benefit of hindsight.

History.

I.C.,§ 19-202, as added by 1972, ch. 336, § 3, p. 844; am. 2018, ch. 222, § 4, p. 500.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-202A. Defense of self, others and certain places.

  1. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary, or when coming to the aid of another whom he reasonably believes to be in imminent danger of or the victim of aggravated assault, robbery, rape, murder or other heinous crime.
  2. The defense of self or of another does not require a person to wait until he or she ascertains whether the danger is apparent or real. A person confronted with such danger has a clear right to act upon appearances such as would influence the action of a reasonable person.
  3. In the exercise of the right of self-defense or defense of another, a person need not retreat from any place that person has a right to be. A person may stand his ground and defend himself or another person by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge without the benefit of hindsight. The provisions of this subsection shall not apply to a person incarcerated in jail or prison facilities when interacting with jail or prison staff who are acting in their official capacities.
  4. In any prosecution for the unlawful use of force, including deadly force, or the attempted or threatened use of force contrary to title 18, Idaho Code, the burden is on the prosecution to prove beyond a reasonable doubt that the use of force, attempted use of force or threat to use force was not justifiable.
  5. A person using force or deadly force in defense of a habitation, place of business or employment or occupied vehicle as defined in section 18-4009(3), Idaho Code, is presumed to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the force is used against a person whose entry or attempted entry therein is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony.

History.

I.C.,§ 19-202A, as added by 1974, ch. 238, § 1, p. 1601; am. 2018, ch. 222, § 5, p. 500.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. McNeil, 141 Idaho 383, 109 P.3d 1125 (Ct. App. 2005).

§ 19-203. Resistance by other parties.

Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense.

History.

I.C.,§ 19-203, as added by 1972, ch. 336, § 3, p. 844.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-204. Prevention of offenses by officers of justice.

Public offenses may be prevented by the intervention of the officers of justice:

  1. By requiring security to keep the peace.
  2. By forming a police in cities and towns, and by requiring their attendance in exposed places.
  3. By suppressing riots.

History.

Cr. Prac. 1864, § 17, p. 215; R.S., R.C., & C.L., § 7375; C.S., § 8628; I.C.A.,§ 19-204.

OPINIONS OF ATTORNEY GENERAL

Peace Officers.

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

§ 19-205. Prevention by persons assisting officers.

When the officers of justice are authorized to act in the prevention of public offenses, other persons who, by their command, act in their aid, are justified in so doing.

History.

I.C.,§ 19-205, as added by 1972, ch. 336, § 3, p. 844.

STATUTORY NOTES

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.

§ 19-206. Security to keep peace — Information of threatened offense.

An information may be laid before any magistrate that a person has threatened to commit an offense against the person or property of another.

History.

Cr. Prac. 1864, § 19, p. 215; R.S., R.C., & C.L., § 7380; C.S., § 8630; I.C.A.,§ 19-206.

CASE NOTES

Cited

State v. Syster, 33 Idaho 761, 197 P. 1025 (1921).

§ 19-207. Examination of complainant.

When the information is laid before such magistrate he must examine on oath the informer, and any witness he may produce, and must take their depositions in writing and cause them to be subscribed by the parties making them.

History.

Cr. Prac. 1864, § 20, p. 216; R.S., R.C., & C.L., § 7381; C.S., § 8631; I.C.A.,§ 19-207.

§ 19-208. Warrant of arrest.

If it appears from the depositions that there is just reason to fear the commission of the offense threatened by the person so informed against, the magistrate must issue a warrant, directed generally to the sheriff of the county or any constable, marshal or policeman in the state, reciting the substance of the information, and commanding the officer forthwith to arrest the person informed of and bring him before the magistrate.

History.

Cr. Prac. 1864, § 21, p. 216; R.S., R.C., & C.L., § 7382; C.S., § 8632; I.C.A.,§ 19-208.

§ 19-209. Hearing of controverted charge.

When the person informed against is brought before the magistrate, if the charge be controverted the magistrate must take testimony in relation thereto. The evidence must be reduced to writing and subscribed by the witnesses.

History.

Cr. Prac. 1864, § 22, p. 216; R.S., R.C., & C.L., § 7383; C.S., § 8633; I.C.A.,§ 19-209.

§ 19-210. Discharge of accused.

If it appears that there is no just reason to fear the commission of the offense alleged to have been threatened, the person complained of must be discharged.

History.

Cr. Prac. 1864, § 23, p. 216; R.S., R.C., & C.L., § 7384; C.S., § 8634; I.C.A.,§ 19-210.

§ 19-211. Security to keep the peace.

If, however, there is just reason to fear the commission of the offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding $5,000, as the magistrate may direct, with one or more sufficient sureties, to keep the peace towards the people of this state, and particularly towards the informer. The undertaking is valid and binding for six months, and may, upon the renewal of the information, be extended for a longer period, or a new undertaking may be required.

History.

Cr. Prac. 1864, § 24, p. 216; R.S., R.C., & C.L., § 7385; C.S., § 8635; I.C.A.,§ 19-211.

STATUTORY NOTES

Cross References.

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

CASE NOTES

Order of magistrate requiring security to keep peace is not judgment of conviction rendered in criminal action and no appeal lies from such order. State v. Syster, 33 Idaho 761, 197 P. 1025 (1921).

§ 19-212. Effect of giving or refusing security.

If the undertaking required by the last section is given, the party informed of must be discharged. If he does not give it, the magistrate must commit him to prison, specifying in the warrant the requirement to give security, the amount thereof and the omission to give the same.

History.

Cr. Prac. 1864, § 25, p. 216; R.S., R.C., & C.L., § 7386; C.S., § 8636; I.C.A.,§ 19-212.

§ 19-213. Commitment for not giving security.

If the person complained of is committed for not giving the undertaking required, he may be discharged by any magistrate upon giving the same.

History.

Cr. Prac. 1864, § 26, p. 216; R.S., R.C., & C.L., § 7387; C.S., § 8637; I.C.A.,§ 19-213.

§ 19-214. Security filed in clerk’s office.

The undertaking must be filed by the magistrate in the office of the clerk of the district court.

History.

Cr. Prac. 1864, § 27, p. 216; R.S., R.C., & C.L., § 7388; C.S., § 8638; I.C.A.,§ 19-214.

§ 19-215. Security for threats to assault.

A person who, in the presence of a court magistrate, assaults or threatens to assault another, or to commit an offense against his person or property, may be ordered by the court or magistrate to give security, as in this chapter provided, and if he refuse so to do, may be committed.

History.

Cr. Prac. 1864, § 28, p. 216; R.S., R.C., & C.L., § 7389; C.S., § 8639; I.C.A.,§ 19-215.

§ 19-216. Breach of security.

Upon the conviction of the person informed against, of a breach of the peace, the undertaking is broken.

History.

Cr. Prac. 1864, § 29, p. 216; R.S., R.C., & C.L., § 7390; C.S., § 8640; I.C.A.,§ 19-216.

§ 19-217. Action on undertaking.

Upon the prosecuting attorney’s producing evidence of such conviction to the district court of the county, the court must order the undertaking to be prosecuted, and the prosecuting attorney must thereupon commence an action upon it in the name of the state of Idaho.

History.

Cr. Prac. 1864, § 30, p. 217; R.S., R.C., & C.L., § 7391; I.C.A.,§ 19-217.

§ 19-218. Evidence of breach.

In the action the offense stated in the record of conviction must be alleged as a breach of the undertaking, and such record is conclusive evidence of the breach.

History.

Cr. Prac. 1864, § 31, p. 217; R.S., R.C., & C.L., § 7392; C.S., § 8642; I.C.A.,§ 19-218.

§ 19-219. Provisions of chapter exclusive.

Security to keep the peace, or to be of good behavior, cannot be required except as prescribed in this chapter.

History.

Cr. Prac. 1864, § 32, p. 217; R.S., R.C., & C.L., § 7393; C.S., § 8643; I.C.A.,§ 19-219.

§ 19-220. Public peace — How preserved.

The mayor or other officer having the direction of the police of a city or town, must order a force sufficient to preserve the peace to attend any public meeting, when he is satisfied that a breach of the peace is reasonably apprehended.

History.

Cr. Prac. 1864, § 33, p. 217; R.S., R.C., & C.L., § 7394; C.S., § 8644; I.C.A.,§ 19-220.

STATUTORY NOTES

Cross References.

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

§ 19-221. Suppression of riots — Officers may command assistance.

When a sheriff or other public officer, authorized to execute process, finds, or has reason to apprehend, that resistance will be made to the execution of the process, he may command as many bona fide male citizens, residents of his county, as he may think proper to assist him in overcoming the resistance, and, if necessary, in seizing, arresting and confining the persons resisting, their aiders and abettors.

History.

Cr. Prac. 1864, § 34, p. 217; R.S., § 7400; am. 1893, p. 13, § 1; reen. 1899, p. 169, § 1; reen. R.C., & C.L., § 7400; C.S., § 8645; I.C.A.,§ 19-221.

§ 19-222. Certificate of person resisting process.

The officer must certify to the court from which the process is issued, the names of the persons resisting and their aiders and abettors, to the end that they may be proceeded against for their contempt of court.

History.

Cr. Prac. 1864, § 35, p. 217; R.S., R.C., & C.L., § 7401; C.S., § 8646; I.C.A.,§ 19-222.

§ 19-223. Governor may call out militia.

If it appears to the governor that the civil power of any county is not sufficient to enable the sheriff to execute process delivered to him, he must, upon the application of the sheriff of the county, order such portion as shall be sufficient, or the whole, if necessary, of the militia of the state, to proceed to the assistance of the sheriff.

History.

Cr. Prac. 1864, § 37, p. 217; R.S., R.C., & C.L., § 7402; C.S., § 8647; I.C.A.,§ 19-223.

STATUTORY NOTES

Cross References.

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

§ 19-224. Commanding rioters to disperse.

Where any number of persons, whether armed or not, are unlawfully or riotously assembled, the sheriff of the county and his deputies or the officials governing the town or city shall go among the persons assembled, or as near to them as possible, and command them in the name of the people of the state immediately to disperse.

History.

I.C.,§ 19-224, as added by 1972, ch. 336, § 3, p. 844; am. 2012, ch. 20, § 5, p. 66.

STATUTORY NOTES

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”.

§ 19-225. Arrest of rioters.

If the persons assembled do not immediately disperse, such magistrates and officers must arrest them, and to that end may command the aid of all persons present or within the county.

History.

I.C.,§ 19-225, as added by 1972, ch. 336, § 3, p. 844.

STATUTORY NOTES

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.

§ 19-226. Command of armed force.

When an armed force is called out for the purpose of suppressing an unlawful or riotous assembly, or arresting the offenders, and is placed under the temporary direction of any civil officer, it must obey the orders in relation thereto of such civil officer.

History.

Cr. Prac. 1864, § 43, p. 218; R.S., R.C., & C.L., § 7405; C.S., § 8650; I.C.A.,§ 19-226.

CASE NOTES

Suspension of writ of habeas corpus in case of insurrection or rebellion. 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).

§ 19-227. Proclamation of insurrection.

When the governor is satisfied that the execution of civil or criminal process has been forcibly resisted in any county by bodies of men, or that combinations to resist the execution of process by force exist in any county, and that the power of the county has been exerted and has not been sufficient to enable the officer having the process to execute it, he may, on the application of the officer or of the prosecuting attorney, by proclamation to be published in such papers as he shall direct, declare the county to be in a state of insurrection and may order into the service of the state such number and description of volunteer or uniform companies, or other militia of the state as he shall deem necessary to serve for such term, and under the command of such officer or officers, as he shall direct.

History.

Cr. Prac. 1864, § 46, p. 218; R.S., R.C., & C.L., § 7406; C.S., § 8651; I.C.A.,§ 19-227; am. 2012, ch. 20, § 6, p. 66.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-228. Disobedience of proclamation.

Any person who, after the publication of such proclamation, resists or aids in resisting the execution of process in any county so declared to be in a state of insurrection, or who aids or attempts the rescue or escape of any person from lawful custody or confinement, or who resists or aids in resisting any force ordered out by the governor to quell or suppress an insurrection, shall be punished by imprisonment in the state prison for a term not less than two (2) years.

History.

I.C.,§ 19-228, as added by 1972, ch. 336, § 3, p. 844.

STATUTORY NOTES

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.

§ 19-229. Revocation of proclamation.

The governor may, when he thinks proper, revoke the proclamation authorized by the last section, or declare that it shall cease at the time and in the manner directed by him.

History.

Cr. Prac. 1864, § 47, p. 219; R.S., R.C., & C.L., § 7408; C.S., § 8653; I.C.A.,§ 19-229.

STATUTORY NOTES

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.

Chapter 3 LOCAL JURISDICTION OF PUBLIC OFFENSES

Sec.

§ 19-301. All offenders liable to punishment. — (1) Jurisdiction

venue. Every person is liable to punishment by the laws of this state, for a public offense committed by him therein, except where it is by law cognizable exclusively in the courts of the United States. Evidence that a prosecutable act was committed within the state of Idaho is a jurisdictional requisite, and proof of such must be shown beyond a reasonable doubt.

(2) Venue is nonjurisdictional. Proof that venue is proper under this chapter is satisfied if shown by a preponderance of the evidence.

History.

I.C.,§ 19-301, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 1, p. 727.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

Pittam v. Maynard, 103 Idaho 177, 646 P.2d 419 (1982); State v. Villafuerte, 160 Idaho 377, 373 P.3d 695 (2016); State v. Mann, 162 Idaho 36, 394 P.3d 79 (2017).

RESEARCH REFERENCES

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.

§ 19-302. Offenses commenced without the state.

When the commission of a public offense, commenced without the state is consummated within its boundaries, the defendant is liable to punishment therefor in this state, though he was out of the state at the time of the commission of the offense charged. If he consummated it in this state through the intervention of an innocent or guilty agent, or any other means proceeding directly from himself, in such case the venue is in the county in which the offense is consummated.

History.

I.C.,§ 19-302, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 2, p. 727.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Mann, 162 Idaho 36, 394 P.3d 79 (2017).

§ 19-303. Fighting duels out of the state. [Repealed.]

Repealed by S.L. 2015, ch. 143, § 1, effective July 1, 2015.

History.

I.C.,§ 19-303, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 3, p. 727.

STATUTORY NOTES

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.

§ 19-304. Offenses committed in different counties.

  1. When a public offense is committed in part in one (1) county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two (2) or more counties, the venue is in either county.
  2. When more than one (1) felony is committed in more than one (1) county pursuant to a continuing criminal transaction or a common scheme or plan, venue shall be in any county in which one or more of such offenses has occurred.
  3. If a crime has been committed in the state of Idaho but it cannot be shown which county properly has venue, then in such case Ada county shall be the proper county of venue.

History.

I.C.,§ 19-304, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 4, p. 727.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-305. Offenses committed on or near county boundaries.

When a public offense is committed on the boundary of two (2) or more counties, or within five hundred (500) yards thereof, if the place where the crime is committed cannot be ascertained with reasonable certainty by the law enforcing officers of either county, or if a misdemeanor or infraction is committed in a city which is located in two (2) counties, then in any such event the venue is in either county. Provided however, that a prosecution in one (1) county shall be a bar to a prosecution for the same act or offense in the other county.

History.

I.C.,§ 19-305, as added by 1972, ch. 336, § 4, p. 844; am. 1976, ch. 24, § 1, p. 59; am. 1986, ch. 289, § 5, p. 727; am. 2001, ch. 121, § 1, p. 415.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-306. Offenses committed on boats, vessels, trains, motor vehicles or aircraft.

When an offense is committed in this state, on board a boat, vessel, railroad train, motor vehicle or aircraft, the venue is in the county through which the boat, vessel, railroad train, motor vehicle, or aircraft passes or in the county where the trip terminates.

History.

I.C.,§ 19-306, as added by 1972, ch. 336, § 4, p. 844; am. 1980, ch. 295, § 1, p. 766; am. 1986, ch. 289, § 6, p. 727.

STATUTORY NOTES

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.

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

CASE NOTES

Where a mother was permitted visitation of her two children who were in the custody of the department of health and welfare and, at the time the mother was expected to return the children, they were with her in Montana, the alleged kidnapping occurred in Montana; and, since there were no travel restrictions during the allowed visitation time, jurisdiction did not exist in the state of Idaho. State v. Cochran, 96 Idaho 862, 538 P.2d 791 (1975).

§ 19-308. Bigamy or incest.

When the offense either of bigamy or incest is committed in one county, and the defendant is apprehended in another, the venue is in either county.

History.

I.C.,§ 19-308, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 8, p. 727.

STATUTORY NOTES

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.

§ 19-309. Stolen property carried from county to county.

When property taken in one county by burglary, robbery, or theft has been brought into another, the venue of the offense is in either county. But, if at any time before the conviction of the defendant in the latter, he is indicted in the former county, the sheriff of the latter county must, upon demand, deliver him to the sheriff of the former.

History.

I.C.,§ 19-309, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 9, p. 727.

STATUTORY NOTES

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.

CASE NOTES

Evidence as to acts of appellant in aiding to load a steer into a truck after the steer had been killed, dressing the steer out, and transporting it to the South Fork Lodge, with intent to deprive the owner of his property, was sufficient to establish appellant as a principal within the meaning of former§ 18-204; and as principal he could be tried in either the county in which the steer was stolen or that in which the lodge was located. State v. Bassett, 86 Idaho 277, 385 P.2d 246 (1963).

§ 19-310. Escape from prison.

The venue of a criminal action for escaping from prison is in any county of the state.

History.

I.C.,§ 19-310, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 10, p. 727.

STATUTORY NOTES

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.

§ 19-311. Bringing stolen property into the state.

The venue of a criminal action for stealing, in any other state, the property of another, or receiving it, knowing it to have been stolen, and bringing the same into this state, is in any county into or through which such stolen property has been brought.

History.

I.C.,§ 19-311, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 11, p. 727.

STATUTORY NOTES

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.

§ 19-312. Murder or manslaughter.

The venue of a criminal action for murder or manslaughter, when the injury which caused the death was inflicted in one county and the party injured dies in another county or out of the state, is in the county where the injury was inflicted.

History.

I.C.,§ 19-312, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 12, p. 727.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-313. Venue over accessories.

In the case of an accessory in the commission of a public offense, the venue is in the county where the offense of the accessory was committed, notwithstanding the principal offense was committed in another county.

History.

I.C.,§ 19-313, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 13, p. 727.

STATUTORY NOTES

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.

§ 19-314. Venue over absent principal.

The venue of a criminal action against a principal in the commission of a public offense, when such principal is not present at the commission of the principal offense, is in the same county it would be under this code if he were so present and aiding and abetting therein.

History.

I.C.,§ 19-314, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 14, p. 727.

STATUTORY NOTES

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.

§ 19-315. Conviction or acquittal in another state.

When an act charged as a public offense, is within the venue of another state, territory, or country, as well as of this state, a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefor in this state.

History.

I.C.,§ 19-315, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 15, p. 727.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-316. Conviction or acquittal in another county.

When an offense is within the venue of two (2) or more counties, a conviction or acquittal thereof in one county is a bar to a prosecution or indictment therefor in another.

History.

I.C.,§ 19-316, as added by 1972, ch. 336, § 4, p. 844; am. 1986, ch. 289, § 16, p. 727.

STATUTORY NOTES

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.

Chapter 4 TIME OF COMMENCING CRIMINAL ACTIONS

Sec.

§ 19-401. No statute of limitations for certain felonies.

Notwithstanding any other provision of law, there is no limitation of time within which a prosecution for the following crimes must be commenced:

  1. Murder;
  2. Voluntary manslaughter;
  3. Rape pursuant to section 18-6101(3) through (10), Idaho Code;
  4. Sexual abuse of a child or lewd conduct with a child as set forth in sections 18-1506 and 18-1508, Idaho Code; or
  5. An act of terrorism as set forth in sections 18-8102, 18-8103, 18-3322, 18-3323 and 18-3324, Idaho Code.

History.

I.C.,§ 19-401, as added by 1972, ch. 336, § 5, p. 844; am. 2000, ch. 277, § 2, p. 900; am. 2001, ch. 142, § 1, p. 507; am. 2003, ch. 280, § 2, p. 756; am. 2006, ch. 39, § 1, p. 116; am. 2010, ch. 352, § 9, p. 920; am. 2011, ch. 27, § 3, p. 67; am. 2016, ch. 296, § 11, p. 828.

STATUTORY NOTES

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.

CASE NOTES

Relation to Torts.

Summary judgment was properly granted to a father in a tort case based on alleged sexual molestation of two daughters since the action was time barred. This section is only applicable to criminal prosecutions. Glaze v. Deffenbaugh, 144 Idaho 829, 172 P.3d 1104 (2007).

RESEARCH REFERENCES

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.

§ 19-402. Commencement of prosecutions for felonies.

A prosecution for any felony other than those specified in section 19-401, Idaho Code, must be commenced by the filing of the complaint or the finding of an indictment within five (5) years after its commission, provided however, a prosecution under sections 18-1506A and 18-1506B, Idaho Code, must be commenced within three (3) years after the date of initial disclosure by the victim to law enforcement.

History.

I.C.,§ 19-402, as added by 1972, ch. 336, § 5, p. 844; am. 1985, ch. 157, § 1, p. 416; am. 1989, ch. 270, § 2, p. 658; am. 1990, ch. 210, § 3, p. 467; am. 1992, ch. 146, § 1, p. 441; am. 2000, ch. 277, § 3, p. 900; am. 2001, ch. 142, § 2, p. 507; am. 2002, ch. 222, § 9, p. 623; am. 2003, ch. 280, § 3, p. 756; am. 2006, ch. 39, § 2, p. 116; am. 2019, ch. 130, § 2, p. 465.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Ruiz, 106 Idaho 336, 678 P.2d 1109 (1984); State v. Burchard, 123 Idaho 382, 848 P.2d 440 (Ct. App. 1993); Smith v. State, 126 Idaho 106, 878 P.2d 805 (Ct. App. 1994); State v. Claxton, 128 Idaho 782, 918 P.2d 1227 (Ct. App. 1996).

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Rae, 139 Idaho 650, 84 P.3d 586 (Ct. App. 2004); State v. Garcia, 159 Idaho 6, 355 P.3d 635 (2015).

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-405. Indictment — When deemed found.

An indictment is found, within the meaning of this chapter, when it is presented by the grand jury in open court, and there received and filed.

History.

Cr. Prac. 1864, § 97, p. 225; R.S., R.C., & C.L., § 7504; C.S., § 8705; I.C.A.,§ 19-405.

§ 19-406. Commencement of prosecutions for sexual exploitation by medical care provider.

A prosecution for sexual exploitation by a medical care provider under section 18-919, Idaho Code, must be commenced by the filing of the complaint or the finding of an indictment within two (2) years after its commission.

History.

I.C.,§ 19-406, as added by 1996, ch. 300, § 2, p. 988.

Chapter 5 COMPLAINT AND WARRANT OF ARREST

Sec.

§ 19-501. Definition of complaint.

The complaint is the allegation in writing, made to a magistrate, that a person has been guilty of some designated public offense.

History.

Cr. Prac. 1864, § 99, p. 226; R.S., R.C., & C.L., § 7509; C.S., § 8706; I.C.A.,§ 19-501; am. 1969, ch. 79, § 1, p. 230.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Raaf, 16 Idaho 411, 101 P. 747 (1909).

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.

CASE NOTES

Cited

State v. Raaf, 16 Idaho 411, 101 P. 747 (1909); State v. Goerig, 121 Idaho 108, 822 P.2d 1005 (Ct. App. 1991).

§ 19-503. Who are magistrates.

The following persons are magistrates:

  1. The justices of the supreme court.
  2. The judges of the court of appeals.
  3. The district judges.
  4. Magistrates of the district court.

History.

Cr. Prac. 1864, § 101, p. 226; R.S., R.C., & C.L., § 7511; C.S., § 8708; I.C.A.,§ 19-503; am. 1972, ch. 35, § 1, p. 55; am. 2012, ch. 20, § 7, p. 66.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Clark, 4 Idaho 7, 35 P. 710 (1894); Quinlan v. Glennon, 68 Idaho 282, 193 P.2d 403 (1948); In re Martz, 83 Idaho 72, 357 P.2d 940 (1960).

§ 19-504. Person lodging complaint.

When a complaint which has been subscribed to under oath by the party or parties lodging the same is laid before a magistrate alleging facts constituting the commission of a public offense, triable within the county, and the magistrate finds that the complaint alleges a public offense under the Idaho Code or county or city ordinance, the magistrate shall order the clerk of the court to file the complaint and refer the complaint to the appropriate county or city prosecuting attorney for further action.

History.

Cr. Prac. 1864, § 102, p. 226; R.S., R.C., & C.L., § 7516; C.S., § 8709; I.C.A.,§ 19-504; am. 1969, ch. 79, § 2, p. 230; am. 1998, ch. 91, § 1, p. 329.

STATUTORY NOTES

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.

CASE NOTES

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).

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Farris, 5 Idaho 666, 51 P. 772 (1897).

§ 19-506. When warrant may issue.

A magistrate may issue a warrant for the arrest of the defendant only after making a determination that there is probable cause to believe that an offense has been committed and that the defendant committed it.

History.

Cr. Prac. 1864, § 104, p. 226; R.S., R.C., & C.L., § 7518; C.S., § 8711; I.C.A.,§ 19-506; am. 1998, ch. 91, § 2, p. 329.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Hendricks, 80 Idaho 344, 330 P.2d 334 (1958).

§ 19-507. Form of warrant.

A warrant of arrest is an order in writing, in the name of the state of Idaho, signed by a magistrate, commanding the arrest of the defendant, and may be substantially in the following form:

County of ...., state of Idaho.

To any sheriff, constable, marshal, or policeman of said state, or of the county of ....:

A complaint on oath, having this day been laid before me, by A.B., that the crime of (designating it) has been committed, and accusing C.D. thereof, you are therefore commanded forthwith to arrest the above named C.D. and bring him before me at (naming the place), or in the case of my absence or inability to act, before the nearest or most accessible magistrate in this county.

Dated at ...., this .... day of ...., .....

History.

Cr. Prac. 1864, § 105, p. 226; R.S., R.C., & C.L., § 7519; C.S., § 8712; I.C.A.,§ 19-507; am. 2002, ch. 32, § 2, p. 46.

STATUTORY NOTES

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.

CASE NOTES

Cited

City of Sandpoint v. Butigan, 91 Idaho 855, 433 P.2d 125 (1967).

§ 19-508. Additional requirements of warrant.

The warrant must specify the name of the defendant, or, if it is unknown to the magistrate, the defendant may be designated therein by any name. It must also state the time of issuing it, and the county, city, or town where it is issued, and be signed by the magistrate, with his name of office, and state the offense charged.

History.

Cr. Prac. 1864, § 106, p. 227; R.S., R.C., & C.L., § 7520; C.S., § 8713; I.C.A.,§ 19-508.

STATUTORY NOTES

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.

§ 19-509. To whom warrant directed.

The warrant must be directed to and executed by a peace officer.

History.

Cr. Prac. 1864, § 107, p. 227; R.S., R.C., & C.L., § 7521; C.S., § 8714; I.C.A.,§ 19-509.

STATUTORY NOTES

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.

CASE NOTES

Cited

Monson v. Boyd, 81 Idaho 575, 348 P.2d 93 (1959).

§ 19-510. Peace officers enumerated.

A peace officer is a sheriff of a county, or a constable, marshal, or policeman of a city or town.

History.

Cr. Prac. 1864, § 108, p. 227; R.S., R.C., & C.L., § 7522; C.S., § 8715; I.C.A.,§ 19-510.

STATUTORY NOTES

Cross References.

Idaho state police,§ 67-2901 et seq.

Extraterritorial authority of peace officers,§ 67-2337.

CASE NOTES

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).

Cited

Monson v. Boyd, 81 Idaho 575, 348 P.2d 93 (1959).

OPINIONS OF ATTORNEY GENERAL

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.

§ 19-510A. Peace officers’ powers to employees of the state board of correction.

All employees of the state board of correction who receive peace officer certification from the Idaho peace officer standards and training council shall have all the authority given by statute to peace officers of the state of Idaho. All other employees designated by the board of correction pursuant to section 20-209C, Idaho Code, shall be empowered with the rights and duties of peace officers when engaged in transportation of prisoners or apprehension of prisoners or wards who have escaped, or apprehension and arrest of persons who are suspected of having violated the terms and conditions of their probation or parole, or when present with and at the request of a local, state or federal law enforcement officer.

History.

I.C.,§ 19-510A, as added by 1973, ch. 170, § 1, p. 359; am. 1980, ch. 100, § 1, p. 220; am. 2005, ch. 131, § 1, p. 417; am. 2011, ch. 28, § 1, p. 70.

STATUTORY NOTES

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.

§ 19-511. Railroad and steamboat police.

The governor of the state of Idaho is authorized and empowered, upon the application of any railroad or steamboat company to appoint and commission during his pleasure any person designated by such company to serve at the expense of such company as policeman, with the powers of a police officer, and who, after being duly sworn, may act as such policeman upon the premises, cars or boats of such company. The company designating such person shall be responsible civilly for any abuse of his authority. Every such policeman shall, when on duty, wear in plain view a shield bearing the words, “railroad police” or “steamboat police,” as the case may be, and the name of the company for which he is commissioned.

History.

1909, p. 110, § 1; compiled and reen. C.L., § 7522a; C.S., § 8716; I.C.A.,§ 19-511.

§ 19-512. Direction to officers throughout state.

If a warrant is issued by a magistrate, it may be directed generally to any sheriff, constable, marshal or policeman in the state, and may be executed by any of those officers to whom it may be delivered.

History.

Cr. Prac. 1864, § 109, p. 227; R.S., R.C., & C.L., § 7523; C.S., § 8717; I.C.A.,§ 19-512; am. 1951, ch. 244, § 1, p. 516; am. 2012, ch. 20, § 8, p. 66.

STATUTORY NOTES

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.

CASE NOTES

Cited

Monson v. Boyd, 81 Idaho 575, 348 P.2d 93 (1959).

§ 19-513. Direction to officers of county

Execution in other county. [Repealed.]

STATUTORY NOTES

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.

§ 19-514. Defendant to be taken before magistrate.

If the offense charged is a felony, the officer making the arrest must cause the defendant to be taken before the magistrate who issued the warrant, or in the case of his absence or inability to act, before the nearest or most accessible magistrate in the same county, and must at the same time deliver to the magistrate the warrant, with his return thereon endorsed and subscribed by him, but all hearings on preliminary examinations must, as far as possible, be had before the magistrate most convenient to the majority of the witnesses for the prosecution, unless for good cause it is ordered to be held elsewhere, and in all such cases the preliminary examinations must be had as hereinafter provided, unless such person shall waive his right to such examination.

If the offense charged is a misdemeanor, and the defendant is arrested in another county, the officer must, upon the request of the defendant, take him before a magistrate in that county, who may admit him to bail in an amount which, in his judgment, will be reasonable and sufficient for the appearance of the defendant, and said magistrate must direct the defendant to appear before the court or magistrate by whom the warrant was issued on or before a day certain which shall in no case be more than fourteen (14) days after such admittance to bail. If bail shall be forthwith given, the magistrate shall take the same and endorse thereon a memorandum of the aforesaid order for the appearance of the defendant. On taking of said bail, the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer in charge of the defendant. The officer must then discharge the defendant from arrest, and must without delay, deliver the warrant and undertaking to the court at which the defendant is required to appear.

If bail is not forthwith given by the defendant, the officer must cause the defendant to be taken before the magistrate who issued the warrant, or in case of his absence or inability to act before the nearest and most accessible magistrate in the same county, and at the same time deliver to the magistrate the warrant with his return endorsed thereon.

History.

Cr. Prac. 1864, §§ 111, 112, p. 227; R.S., § 7525; am. 1899, p. 433, § 1; reen. R.C., § 7525; compiled and reen. C.L., § 7525; C.S., § 8719; I.C.A.,§ 19-514; am. 1951, ch. 244, § 2, p. 516; am. 2003, ch. 115, § 1, p. 358.

STATUTORY NOTES

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.

CASE NOTES

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 ).

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

Archbold v. Huntington, 34 Idaho 558, 201 P. 1041 (1921); State v. Boykin, 40 Idaho 536, 234 P. 157 (1925); Madsen v. Hutchison, 49 Idaho 358, 290 P. 208 (1930); Gawron v. Roberts, 113 Idaho 330, 743 P.2d 983 (Ct. App. 1987).

§ 19-516. Complaint to be transmitted to magistrate.

If the defendant is brought before a magistrate other than the one who issued the warrant, the complaint upon which the warrant was issued must be sent to that magistrate, or, if such complaint can not be procured, the complaining witness must be summoned to lodge a new complaint before such magistrate.

History.

Cr. Prac. 1864, § 118, p. 228; R.S., R.C., & C.L., § 7531; C.S., § 8722; I.C.A.,§ 19-516; am. 1969, ch. 79, § 4, p. 230.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-517. Offenses triable in another county — Proceedings.

When a complaint is laid before a magistrate of the commission of a public offense, triable in another county of the state, but showing that defendant is in the county where the complaint is laid, the same proceedings must be had as prescribed in this chapter, except that the warrant must require the defendant to be taken before the magistrate most accessible to the witnesses for the prosecution, but in the county in which the offense is triable, and the complaint must be delivered by the magistrate to the officer to whom the warrant is delivered.

History.

Cr. Prac. 1864, § 117, p. 228; R.S., R.C., & C.L., § 7530; C.S., § 8721; I.C.A.,§ 19-517; am. 1969, ch. 79, § 5, p. 230.

STATUTORY NOTES

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.

§ 19-518. Duties of officer.

The officer who executes the warrant must take the defendant before the magistrate most accessible to the witnesses for the prosecution, but in the county in which the offense is triable, and must deliver to him the complaint and the warrant, with his return indorsed thereon, and the magistrate must then proceed in the same manner as upon a warrant issued by himself.

History.

Cr. Prac. 1864, § 119, p. 228; R.S., R.C., & C.L., § 7532; C.S., § 8723; I.C.A.,§ 19-518; am. 1969, ch. 79, § 6, p. 230.

STATUTORY NOTES

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.

§ 19-519. Notice of defense of alibi.

  1. At any time after arraignment before a magistrate upon a complaint and upon written demand of the prosecuting attorney, the defendant shall serve, within ten (10) days or at such different time as the court may direct, upon the prosecuting attorney, a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.
  2. Within ten (10) days after receipt of the defendant’s notice of alibi but in no event less than ten (10) days before trial, unless the court otherwise directs, the prosecuting attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the prosecution intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses.
  3. If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subsection (1) or subsection (2) of this section, the party shall promptly notify the other party or his attorney of the existence and identity of such additional witness.
  4. Upon the failure of either party to comply with the requirements of this section, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at, the scene of the alleged offense. This section shall not limit the right of the defendant to testify in his own behalf.
  5. For good cause shown the court may grant an exception to any of the requirements of subsections (1) through (4) of this section.

History.

I.C.,§ 19-519, as added by 1978, ch. 301, § 1, p. 758.

CASE NOTES

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).

Chapter 6 ARREST, BY WHOM AND HOW MADE

Sec.

§ 19-601. Arrest defined.

An arrest is taking a person into custody in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person.

History.

Cr. Prac. 1864, §§ 121, 122, p. 228; R.S., R.C., & C.L., § 7538; C.S., § 8724; I.C.A.,§ 19-601.

STATUTORY NOTES

Cross References.

Illegal arrest or seizure,§ 18-703.

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

CASE NOTES

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).

Cited

Smith v. State, 87 Idaho 163, 391 P.2d 849 (1964).

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.

§ 19-602. Arrest, how made.

An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of an officer. The defendant must not be subjected to any more restraint than is necessary for his arrest and detention.

History.

Cr. Prac. 1864, §§ 125, 126, p. 228; R.S., R.C., & C.L., § 7539; C.S., § 8725; I.C.A.,§ 19-602.

CASE NOTES

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).

Cited

State v. Howard, 135 Idaho 727, 24 P.3d 44 (2001).

§ 19-603. When peace officer may arrest.

A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person:

  1. For a public offense committed or attempted in his presence.
  2. When a person arrested has committed a felony, although not in his presence.
  3. When a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it.
  4. On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.
  5. At night, when there is reasonable cause to believe that he has committed a felony.
  6. When upon immediate response to a report of a commission of a crime there is probable cause to believe that the person has committed a violation of section 18-901 (assault), 18-903 (battery), 18-918 (domestic violence), 18-7905 (first-degree stalking), 18-7906 (second-degree stalking), 39-6312 (violation of a protection order), 18-920 (violation of a no contact order), or 18-3302I (threatening violence upon school grounds — firearms and other deadly or dangerous weapons), Idaho Code.
  7. When there is reasonable cause to believe, based upon physical evidence observed by the officer or statements made in the presence of the officer upon immediate response to a report of a commission of a crime aboard an aircraft, that the person arrested has committed such a crime.

History.

Cr. Prac. 1864, §§ 131, 133, p. 228; R.S., R.C., & C.L., § 7540; C.S., § 8726; I.C.A.,§ 19-603; am. 1979, ch. 307, § 1, p. 832; am. 1988, ch. 271, § 1, p. 901; am. 1994, ch. 318, § 1, p. 1019; am. 1997, ch. 89, § 1, p. 214; am. 1997, ch. 314, § 4, p. 929; am. 2004, ch. 337, § 5, p. 1007; am. 2019, ch. 207, § 1, p. 633.

STATUTORY NOTES

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.

CASE NOTES

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).

RESEARCH REFERENCES

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.

CASE NOTES

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).

RESEARCH REFERENCES

ALR.

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

§ 19-605. Magistrate may order arrest.

A magistrate may orally order a peace officer or private person to arrest any one committing or attempting to commit a public offense in the presence of such magistrate.

History.

Cr. Prac. 1864, § 136, p. 228; R.S., R.C., & C.L., § 7542; C.S., § 8728; I.C.A.,§ 19-605.

§ 19-606. Person arresting may summon assistance.

Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein.

History.

Cr. Prac. 1864, § 123, p. 228; R.S., R.C., & C.L., § 7543; C.S., § 8729; I.C.A.,§ 19-606.

CASE NOTES

In civil action for false arrest in which it was argued alleged misdemeanor was not committed in presence of two defendants who took part in arrest, such action was justified where they were called on by person who had seen plaintiff’s actions. Sima v. Skaggs Payless Drug Center, Inc., 82 Idaho 387, 353 P.2d 1085 (1960).

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. 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. State v. Sutherland, 130 Idaho 472, 943 P.2d 62 (Ct. App. 1997).

§ 19-607. When arrest may be made upon a warrant.

If the offense charged is a felony, the arrest may be made on any day, and at any time of the day or night. If the offense charged is a misdemeanor, the arrest shall not be made inside a person’s residence between 8:00 p.m. and 8:00 a.m., unless upon the direction of the magistrate, as endorsed upon the warrant, or where consent was given to enter the residence by a person with real or apparent authority.

History.

Cr. Prac. 1864, § 124, p. 228; R.S., R.C., & C.L., § 7544; C.S., § 8730; I.C.A.,§ 19-607; am. 2002, ch. 132, § 1, p. 364.

CASE NOTES

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).

§ 19-608. Information to person arrested.

The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person to be arrested is actually engaged in the commission of, or an attempt to commit, an offense, or is pursued immediately after its commission, or after an escape.

History.

Cr. Prac. 1864, § 134, p. 229; R.S., R.C., & C.L., § 7545; C.S., § 8731; I.C.A.,§ 19-608.

CASE NOTES

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).

Cited

State v. Thomas, 116 Idaho 848, 780 P.2d 599 (Ct. App. 1989); State v. Cooper, 119 Idaho 654, 809 P.2d 515 (Ct. App. 1991); State v. Bowman, 124 Idaho 936, 866 P.2d 193 (Ct. App. 1993).

§ 19-609. Warrant must be shown.

If the person making the arrest is acting under the authority of a warrant, he must show the warrant, if required.

History.

Cr. Prac. 1864, § 127, p. 229; R.S., R.C., & C.L., § 7546; C.S., § 8732; I.C.A.,§ 19-609.

CASE NOTES

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).

§ 19-610. What force may be used.

When the arrest is being made by an officer under the authority of a warrant or when the arrest is being made without a warrant but is supported by probable cause to believe that the person has committed an offense, after information of the intention to make the arrest, if the person to be arrested either flees or forcibly resists, the officer may use all reasonable and necessary means to effect the arrest and will be justified in using deadly force under conditions set out in section 18-4011, Idaho Code.

History.

Cr. Prac. 1864, § 128, p. 229; R.S., R.C., & C.L., § 7547; C.S., § 8733; I.C.A.,§ 19-610; am. 1986, ch. 303, § 1, p. 754; am. 1987, ch. 117, § 1, p. 231.

CASE NOTES

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).

Cited

Kline v. Shoup, 38 Idaho 202, 226 P. 729 (1923).

§ 19-611. Breaking doors and windows.

To make an arrest, if the offense is a felony, a private person, if any public offense, a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which there is reasonable ground for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.

History.

Cr. Prac. 1864, §§ 129, 132, 139, pp. 229, 230; R.S., R.C., & C.L., § 7548; C.S., § 8734; I.C.A.,§ 19-611.

CASE NOTES

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).

Cited

State v. Pontier, 95 Idaho 707, 518 P.2d 969 (1974); State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986).

§ 19-612. Force for purpose of liberation.

Any person who has lawfully entered a house for the purpose of making an arrest, may break open the door or window thereof if detained therein, when necessary for the purpose of liberating himself, and an officer may do the same when necessary for the purpose of liberating a person who, acting in his aid, lawfully entered for the purpose of making an arrest, and is detained therein.

History.

Cr. Prac. 1864, §§ 129, 132, 139, pp. 229, 230; R.S., R.C., & C.L., § 7549; C.S., § 8735; I.C.A.,§ 19-612.

§ 19-613. Weapons may be taken.

Any person making an arrest may take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken.

History.

R.S., R.C., & C.L., § 7550; C.S., § 8736; I.C.A.,§ 19-613.

CASE NOTES

The language of this section is permissive, not restrictive; its application is not limited to citizen’s arrests; by referring to “any persons making an arrest” it encompasses within its scope law enforcement officers, however, it does not purport to diminish any authority that law enforcement officers might otherwise possess to conduct searches of persons in their custody; law enforcement officers who have arrested a suspect are entitled to conduct a full search incident to arrest for the purpose of not only finding and removing weapons but also preserving evidence and removing valuables that may be accessible by the arrestee. State v. Moore, 129 Idaho 776, 932 P.2d 899 (Ct. App. 1996).

Cited

State v. Anderson, 31 Idaho 514, 174 P. 124 (1917); State v. Julian, 129 Idaho 133, 922 P.2d 1059 (1996).

§ 19-614. Duty of private person making arrest.

A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him to a peace officer.

History.

Cr. Prac. 1864, § 140, p. 230; R.S., R.C., & C.L., § 7551; C.S., § 8737; I.C.A.,§ 19-614.

CASE NOTES

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).

§ 19-615. Procedure upon arrest without warrant.

When an arrest is made without a warrant by a peace officer or private person the person arrested must, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the arrest is made, and an information, stating the charge against the person, must be laid before such magistrate.

History.

Cr. Prac. 1864, § 140, p. 230; R.S., R.C., & C.L., § 7552; C.S., § 8738; I.C.A.,§ 19-615.

CASE NOTES

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).

§ 19-616. Telecommunication of warrant for service.

A warrant of arrest may be sent by telecommunication process or facsimile process to one (1) or more peace officers and a copy of a warrant sent in such manner 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.

History.

R.S., R.C., & C.L., § 7553; C.S., § 8739; I.C.A.,§ 19-616; am. 2012, ch. 78, § 1, p. 227.

STATUTORY NOTES

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.”

§ 19-617. Telegraphic copy of warrant. [Repealed.]

Repealed by S.L. 2012, ch. 78, § 2, effective July 1, 2012.

History.

R.S., R.C., & C.L., § 7554; C.S., § 8740; I.C.A.,§ 19-617.

§ 19-618. Recapture after escape.

If a person arrested escape[s] or is rescued, the person from whose custody he escaped or was rescued, may immediately pursue and retake him at any time and in any place within the state.

History.

Cr. Prac. 1864, § 141, p. 230; R.S., R.C., & C.L., § 7559; C.S., § 8741; I.C.A.,§ 19-618.

STATUTORY NOTES

Compiler’s Notes.

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

§ 19-619. Breaking doors and windows for recapture.

To retake the person escaping or rescued, the person pursuing may break open an outer or inner door or window of a dwelling-house, if, after notice of his intention, he is refused admittance.

History.

Cr. Prac. 1864, § 142, p. 230; R.S., R.C., & C.L., § 7560; C.S., § 8742; I.C.A.,§ 19-619.

§ 19-620. Definition.

For the purpose of this act, a “temporary road block” means any structure, device or means used by duly authorized law enforcement officers of the state of Idaho and of its political subdivisions for the purpose of controlling all traffic through a point on a highway whereby all vehicles may be slowed or stopped.

History.

1957, ch. 31, § 1, p. 49.

STATUTORY NOTES

Compiler’s Notes.

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

§ 19-621. Authority to establish road blocks.

The duly elected or appointed sheriffs, state policemen or policemen of cities of the first or second class of the state of Idaho are hereby authorized to establish, in their respective or adjacent jurisdictions, temporary road blocks upon the highways of this state or city streets for the purpose of apprehending persons reasonably believed by such officers to be wanted for violation of the laws of this state, of any other state, or of the United States, and using such highways or streets.

History.

1957, ch. 31, § 2, p. 49.

CASE NOTES

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.

§ 19-622. Minimum requirements.

For the purpose of warning and protecting the traveling public, the minimum requirements to be met by such officers establishing temporary road blocks, if time and circumstances allow, are:

  1. The temporary road block must be established at a point on the highway or street clearly visible at a distance of not less than 100 yards in either direction.
  2. At the point of the temporary road block, a sign shall be placed on the center line of the highway or street displaying the word “stop” in letters of sufficient size and luminosity to be readable at a distance of not less than 50 yards, in both directions, either in daytime or darkness.
  3. At the same point of the temporary road block, at least one (1) blue light, on and burning, must be placed at the side of the highway or street which shall be a flashing or intermittent beam of light, clearly visible to the oncoming traffic, at a distance of not less than 100 yards.
  4. At a distance of not less than 200 yards from the point of the temporary road block, warning signs must be placed at the side of the highway or street, containing any wording of sufficient size and luminosity, to warn the oncoming traffic that a “police stop” lies ahead. A burning beam light, flare or reflector must be placed near such signs for the purpose of attracting the attention of the traffic to the sign.

History.

1957, ch. 31, § 3, p. 49; am. 1972, ch. 285, § 1, p. 717.

STATUTORY NOTES

Effective Dates.

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

CASE NOTES

It is doubtful that the legislature intended to establish, in this section, standards of reasonableness for purposes of the Fourth Amendment or ofIdaho Const., Art. I, § 17. Accordingly, while the requirements of this section might be of greater importance in a case involving an accident at a road block or involving failure to comply with an officer’s directions to stop at a road block, the statute was not controlling in this case, where absent such events, a robbery suspect was apprehended at a road block. At most, the failure to comply with the statute is but one of the factors to consider in determining the reasonableness of the officer’s conduct under a totality of the circumstances. State v. Gascon, 119 Idaho 932, 812 P.2d 239 (1991).

RESEARCH REFERENCES

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.

STATUTORY NOTES

Effective Dates.

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

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

Any arrest that may be lawfully made with an original warrant, may be made with a copy thereof, certified by the issuing magistrate to be a true and correct copy of the original warrant that is in his possession.

History.

1967, ch. 114, § 1, p. 222.

STATUTORY NOTES

Effective Dates.

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

§ 19-625. Detention for obtaining evidence of identifying physical characteristics.

  1. A peace officer who is engaged, within the scope of his authority, in the investigation of an alleged criminal offense which is a felony may make written application upon oath or affirmation to a judge of any district court, or magistrates division thereof, for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the jurisdiction over which the judicial officer presides. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. Such order may be issued by the judicial officer upon a showing under oath of all the following:
    1. Probable cause for belief that a specifically described criminal offense which is a felony has been committed.
    2. Reasonable grounds exist, which may or may not amount to probable cause, to believe that the identified or particularly described individual committed the criminal offense.
    3. Procurement of evidence of identifying physical characteristics from the identified or particularly described individual may contribute to the identification of the individual who committed such offense.
    4. Such evidence cannot otherwise be obtained by the investigating officer.
  2. Any order issued pursuant to the provisions of this section shall specify the following:
    1. The alleged criminal offense which is the subject of the application.
    2. The specific type of identifying physical characteristic evidence which is sought.
    3. The relevance of such evidence to the particular investigation.
    4. The identity or description of the individual who may be detained for obtaining such evidence.
    5. The name and official status of the investigative officer authorized to effectuate such detention and obtain such evidence.
    6. The place at which the obtaining of such evidence shall be effectuated.
    7. The time that such evidence shall be taken except that no person may be detained for a period of more than three (3) hours for the purpose of taking such evidence.
    8. That the individual so identified or described shall have the right to legal counsel during the detention when such evidence is obtained and if he is unable to afford private counsel an attorney shall be provided at public expense as provided by section 19-852, Idaho Code.
    9. That the individual will be under no legal obligation to submit to any interrogation or to make any statement during the period of his appearance unless sound of voice identification is required.
    10. The period of time, not exceeding ten (10) days, during which the order shall continue in force and effect. If the order is not executed within ten (10) days, a new order may be issued, pursuant to the provisions of this section.
  3. The order issued pursuant to this section shall be returned to the court not later than fifteen (15) days after its date of issuance and shall be accompanied by a sworn statement indicating how and when the evidence was taken and the type of evidence taken. The court shall give to the person from whom such evidence was taken a copy of the order and a copy of the sworn statement indicating what type of evidence was taken, if any. (4) For the purposes of this section, “identifying physical characteristics” shall mean the fingerprints, palm prints, footprints, measurements, handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, or photographs of an individual.

History.

I.C.,§ 19-625, as added by 1972, ch. 116, § 1, p. 230; am. 2001, ch. 142, § 3, p. 507.

STATUTORY NOTES

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.”

CASE NOTES

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).

Cited

State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983).

RESEARCH REFERENCES

ALR.

§ 19-701. Officer of another state entering state in fresh pursuit of suspected felon.

Any member of a duly organized state, county, or municipal peace unit of another state of the United States who enters this state in fresh pursuit and continues within this state in such fresh pursuit, of a person in order to arrest him on the ground that he is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody, as has any member of any duly organized state, county or municipal peace unit of this state, to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.

History.

1941, ch. 69, § 1, p. 133.

STATUTORY NOTES

Cross References.

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

CASE NOTES

Authorized Pursuit.

Where Nevada patrolman observed defendant’s vehicle weaving on the highway and followed him into Idaho, where Nevada patrolman stopped and detained defendant until Idaho patrolman arrived who took defendant into custody, gave him a sobriety test which he failed, and arrested him, pursuit and detention of defendant by Nevada patrolman was legal. State v. Ruhter, 107 Idaho 282, 688 P.2d 1187 (1984).

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

CASE NOTES

Fresh Pursuit.

The statutory doctrine of “fresh” pursuit empowers a peace officer to enter another jurisdiction while attempting to apprehend a violator of the law. It applies only to apprehension of persons believed to have committed felonies. State v. Wren, 115 Idaho 618, 768 P.2d 1351 (Ct. App. 1989).

§ 19-702. Person arrested to be taken before magistrate — Extradition or discharge.

If an arrest is made in this state by an officer of another state in accordance with the provisions of section 1 of this act he shall without unnecessary delay take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state or admit him to bail for such purpose. If the magistrate determines that the arrest was unlawful he shall discharge the person arrested.

History.

1941, ch. 69, § 2, p. 133.

STATUTORY NOTES

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.

§ 19-703. Construction of section.

Section 1 of this act shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.

History.

1941, ch. 69, § 3, p. 133.

STATUTORY NOTES

Compiler’s Notes.

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

CASE NOTES

Cited

State v. Jennings, 95 Idaho 724, 518 P.2d 1186 (1974).

§ 19-704. District of Columbia included.

For the purpose of this act the word “state” shall include the District of Columbia.

History.

1941, ch. 69, § 4, p. 133.

STATUTORY NOTES

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.

§ 19-705. “Fresh pursuit” defined.

The term “fresh pursuit” as used in this act shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. Fresh pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.

History.

1941, ch. 69, § 5, p. 133.

STATUTORY NOTES

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.

CASE NOTES

The only evidence necessary to show fresh pursuit is that the officer had knowledge that a crime or infraction was committed within his jurisdiction and the officer pursued the suspect beyond the jurisdiction with the purpose of making an arrest, citing the suspect, or investigating the offense. Whether the officer’s lights are flashing and siren is blaring is objective evidence of the officer’s pursuit, but it is not necessary. It is well within an officer’s discretion to wait for a safe point to stop a vehicle. State v. Scott, 150 Idaho 123, 244 P.3d 622 (Ct. App. 2010).

§ 19-706. Certification of act to other states.

Upon the passage and approval by the governor of this act, it shall be the duty of the secretary of state (or other officer) to certify a copy of this act to the executive department of each of the states of the United States.

History.

1941, ch. 69, § 6, p. 133.

STATUTORY NOTES

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.”

§ 19-707. Short title.

This act may be cited as the “Uniform Act on Fresh Pursuit.”

History.

1941, ch. 69, § 8, p. 133.

STATUTORY NOTES

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.

Chapter 8 EXAMINATION OF CASE AND DISCHARGE OR COMMITMENT OF ACCUSED

Sec.

§ 19-801. Accused to be informed of charge — Right to counsel.

When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.

History.

Cr. Prac. 1864, § 143, p. 230; R.S., R.C., & C.L., § 7565; C.S., § 8743; I.C.A.,§ 19-701.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Raaf, 16 Idaho 411, 101 P. 747 (1909); State v. Frederic, 28 Idaho 709, 155 P. 977 (1916); Foster v. Walus, 81 Idaho 452, 347 P.2d 120 (1959).

RESEARCH REFERENCES

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.

§ 19-802. Sending for counsel.

He must also allow the defendant a reasonable time to send for counsel, and postpone the examination for that purpose, and must upon the request of the defendant, require a peace officer to take a message to any counsel in the township or city the defendant may name. The officer must, without delay and without fee, perform that duty.

History.

Cr. Prac. 1864, § 144, p. 230; R.S., R.C., & C.L., § 7566; C.S., § 8744; I.C.A.,§ 19-702.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941); Cobas v. Clapp, 79 Idaho 419, 319 P.2d 475 (1957); Foster v. Walus, 81 Idaho 452, 347 P.2d 120 (1959); Freeman v. State, 87 Idaho 170, 392 P.2d 542 (1964); McGuire v. State, 87 Idaho 185, 392 P.2d 551 (1964).

§ 19-803. Examination

When to proceed. [Repealed.]

STATUTORY NOTES

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.

§ 19-803A. Counsel represented at preliminary hearing — Postponement by magistrate — Appointment

Compensation. [Repealed.]

STATUTORY NOTES

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.

§ 19-804. Preliminary examination.

The magistrate shall conduct a preliminary examination unless the same is waived by the defendant. At such preliminary examination, the magistrate shall first read the complaint to the defendant unless the defendant waives such reading, and it shall be the duty of the magistrate at such examination to determine whether or not a public offense has been committed and whether or not there is probable or sufficient cause to believe that the defendant committed such public offense. Once commenced, the examination must be completed at one (1) session unless the magistrate for good cause shown by court order postpones it, or unless the parties stipulate in writing or upon the court record to a continuance to a date certain. If the defendant is incarcerated, the postponement or continuance cannot be for more than six (6) days or, if the defendant is not incarcerated, for more than twenty (20) days, unless on motion by or with the consent of the defendant the court orders a longer continuance or postponement.

History.

Cr. Prac. 1864, § 146, p. 230; R.S., R.C., & C.L., § 7568; C.S., § 8746; I.C.A.,§ 19-704; am. 1969, ch. 467, § 1, p. 1339; am. 1976, ch. 282, § 1, p. 967.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Pole, 139 Idaho 370, 79 P.3d 729 (Ct. App. 2003); State v. Ruggiero, 156 Idaho 662, 330 P.3d 408 (Ct. App. 2014); State v. Schall, 157 Idaho 488, 337 P.3d 647 (2014); State v. Jeske, 164 Idaho 862, 436 P.3d 683 (2019).

§ 19-805. Commitment or bail on postponement.

If a postponement is had the magistrate must commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money as provided in this code, as security for his appearance at the time to which the examination is postponed.

History.

Cr. Prac. 1864, § 147, p. 230; R.S., R.C., & C.L., § 7569; C.S., § 8747; I.C.A.,§ 19-705.

STATUTORY NOTES

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.

§ 19-806. Form of commitment.

The commitment for examination is made by an indorsement, signed by the magistrate on the warrant of arrest, to the following effect:

“The within named A.B. having been brought before me under this warrant, is committed for examination to the sheriff of .....”

If the sheriff is not present, the defendant may be committed to the custody of a peace officer.

History.

Cr. Prac. 1864, § 148, p. 231; R.S., R.C., & C.L., § 7570; C.S., § 8748; I.C.A.,§ 19-706.

STATUTORY NOTES

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.

§ 19-807. Issuance of subpoenas for witnesses.

The magistrate shall, prior to the preliminary examination, issue subpoenas, subscribed by him, for witnesses required by the prosecution who are in the state, and for witnesses required by the defendant who are in the state.

History.

Cr. Prac. 1864, § 149, p. 231; R.S., R.C., & C.L., § 7571; C.S., § 8749; I.C.A.,§ 19-707; am. 1969, ch. 467, § 2, p. 1339.

STATUTORY NOTES

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.

CASE NOTES

Prosecuting attorney may be permitted to correct error made in indorsing name of witness on information where there is no showing that it misled or prejudiced defendant. State v. McGann, 8 Idaho 40, 66 P. 823 (1901).

§ 19-808. Examination of witnesses for state.

The witnesses for the prosecution must be examined under oath in the presence of the defendant, and may be cross-examined in his behalf.

History.

Cr. Prac. 1864, § 150, p. 231; R.S., R.C., & C.L., § 7572; C.S., § 8750; I.C.A.,§ 19-708; am. 1969, ch. 467, § 3, p. 1339.

STATUTORY NOTES

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.

CASE NOTES

Nature of Examination.

Magistrate is not bound by technical rules of evidence which govern trial of offense. In re Hollingsworth, 49 Idaho 455, 289 P. 607 (1930).

Cited

State v. Ruddell, 97 Idaho 436, 546 P.2d 391 (1976); State v. Edmonson, 113 Idaho 230, 743 P.2d 459 (1987).

§ 19-809. Examination of witnesses for defendant.

When the examination of witnesses on the part of the people is closed, the defendant may produce any material witnesses, which witnesses must be sworn, examined and cross-examined in the presence of the defendant.

History.

R.S., R.C., & C.L., § 7573; C.S., § 8751; I.C.A.,§ 19-709; am. 1969, ch. 467, § 4, p. 1339.

STATUTORY NOTES

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.

CASE NOTES

Duty of Defendant.

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).

The cross-examination of the defendant regarding his failure to testify at the preliminary hearing deprived defendant of a fair trial and was a denial of due process. State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971).

Cited

State v. Edmonson, 113 Idaho 230, 743 P.2d 459 (1987).

§ 19-809A. Child’s out of court statements admissible in preliminary examinations.

Notwithstanding the provisions of sections 19-808 and 19-809, Idaho Code, and any rules promulgated by the Idaho supreme court, in any preliminary examination, the magistrate shall receive into evidence any out-of-court statement of a child under the age of ten (10) years provided the magistrate finds the source of the evidence credible.

History.

I.C.,§ 19-809A, as added by 1986, ch. 195, § 1, p. 493.

§ 19-810. Exclusion of witnesses.

While a witness is under examination the magistrate must, upon motion of either of the parties, exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate, and to be prevented from conversing with each other until all witnesses have been examined.

History.

Cr. Prac. 1864, § 157, p. 232; R.S., R.C., & C.L., § 7574; C.S., § 8752; I.C.A.,§ 19-710; am. 1969, ch. 467, § 5, p. 1339.

STATUTORY NOTES

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.

CASE NOTES

In the absence of specific authority, the trial judge’s duty to cause witnesses to be kept separate and prevented from conversing with each other is at most discretionary. State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979), superseded on other grounds, State v. Skunkcap, 157 Idaho 221, 335 P.3d 561 (2014).

§ 19-811. Exclusion of other persons.

The magistrate must also, upon the request of the defendant, exclude from the examination every person except his clerk, the prosecutor and his counsel, the attorney general, the prosecuting attorney of the county, the defendant and his counsel, and the officer having the defendant in custody.

History.

Cr. Prac. 1864, § 158, p. 232; R.S., R.C., & C.L., § 7575; C.S., § 8753; I.C.A.,§ 19-711.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979).

§ 19-812. Transcript of preliminary examination.

In all cases which must afterward be investigated by the grand jury, or prosecuted by information, the preliminary examination must be taken and as ordered by the district court duly transcribed, unless the person charged with the offense shall waive his right to such examination, and the same can not be unreasonably delayed by either party.

A verbatim record of the proceedings and evidence at the preliminary examination before a magistrate shall be maintained either by electrical devices or by stenographic means as the magistrate may direct, but if any party to the action requests stenographic reporting of the proceedings, the reporting shall be done stenographically. The requesting party shall pay the costs of reporting the proceedings.

The opening statements and closing argument of counsel for the parties need not be transcribed and made a part of the transcript unless the transcription of the same is requested in advance by either of such parties.

The transcript of the proceedings and evidence at the preliminary examination shall be certified to as true and correct by the stenographer or by the person designated to transcribe the proceedings from the electrical devices.

History.

R.S., § 7576; am. 1905, p. 376; reen. R.C., § 7576; compiled and reen. C.L., § 7576; C.S., § 8754; I.C.A.,§ 19-712; am. 1969, ch. 467, § 6, p. 1339; am. 1971, ch. 73, § 1, p. 167; am. 1979, ch. 206, § 1, p. 589.

STATUTORY NOTES

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.

CASE NOTES

Illegal detention. Indigent persons.

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).

Cited

Territory v. Evans, 2 Idaho 651, 23 P. 232 (1890); State v. Potter, 6 Idaho 584, 57 P. 431 (1899); State v. Clark, 4 Idaho 7, 35 P. 710 (1894); State v. Zarlenga, 14 Idaho 305, 94 P. 55 (1908); State v. Weir, 41 Idaho 345, 238 P. 1029 (1925); State v. Miller, 52 Idaho 33, 10 P.2d 955 (1932); State v. Rutten, 73 Idaho 25, 245 P.2d 778 (1952); State v. Peterson, 87 Idaho 147, 391 P.2d 846 (1964); State v. Stewart, 87 Idaho 210, 392 P.2d 180 (1964); State v. Mee, 102 Idaho 474, 632 P.2d 663 (1981).

§ 19-813. Custody of transcript of preliminary examination.

The magistrate must keep the depositions of witnesses or transcript of preliminary examination taken at such preliminary examination until the same is returned to the proper court; and such magistrate must not permit the same to be examined or copied by any person except a judge of a court having jurisdiction of the offense, or authorized to issue writs of habeas corpus, the attorney-general, prosecuting attorney, or other prosecuting attorney, and the defendant and his counsel.

History.

R.S., R.C., & C.L., § 7577; C.S., § 8755; I.C.A.,§ 19-713; am. 1969, ch. 467, § 7, p. 1339.

STATUTORY NOTES

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.

CASE NOTES

Cited

State v. Ruddell, 97 Idaho 436, 546 P.2d 391 (1976).

§ 19-814. Discharge of defendant.

If, after hearing the evidence adduced at the preliminary examination, the magistrate finds either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must dismiss the complaint and order the defendant to be discharged.

History.

Cr. Prac. 1864, § 159, p. 232; R.S., R.C., & C.L., § 7578; C.S., § 8756; I.C.A.,§ 19-714; am. 1969, ch. 467, § 8, p. 1339.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Carlson, 23 Idaho 545, 130 P. 463 (1913); State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967); State v. Schall, 157 Idaho 488, 337 P.3d 647 (2014); State v. Villafuerte, 160 Idaho 377, 373 P.3d 695 (2016).

§ 19-815. Holding defendant to answer.

If, after hearing the evidence adduced at the preliminary examination, the magistrate finds that a public offense has been committed, and that there is probable or sufficient cause to believe the defendant guilty thereof, the magistrate shall enter an order holding the defendant to answer to said public offense, which order shall be substantially as follows: “It appearing to me that the offense set forth in the complaint (or any offense, according to the evidence presented at the preliminary examination, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A.B. guilty thereof, I order that he be held to answer the same.”

History.

Cr. Prac. 1864, § 160, p. 232; R.S., R.C., & C.L., § 7579; C.S., § 8757; I.C.A.,§ 19-715; am. 1969, ch. 467, § 9, p. 1339.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Carlson, 23 Idaho 545, 130 P. 463 (1913); State v. Mitchell, 36 Idaho 724, 214 P. 217 (1923); In re Moore, 38 Idaho 506, 224 P. 662 (1924); State v. Fairchild, 121 Idaho 960, 829 P.2d 550 (Ct. App. 1992); State v. Schall, 157 Idaho 488, 337 P.3d 647 (2014).

§ 19-815A. Challenging sufficiency of evidence of preliminary examination.

A defendant once held to answer to a criminal charge under this chapter may challenge the sufficiency of evidence educed at the preliminary examination by a motion to dismiss the commitment, signed by the magistrate, or the information filed by the prosecuting attorney. Such motion to dismiss shall be heard by a district judge.

If the district judge finds that the magistrate has held the defendant to answer without reasonable or probable cause to believe that the defendant has committed the crime for which he was held to answer, or finds that no public offense has been committed, he shall dismiss the complaint, commitment or information and order the defendant discharged.

History.

I.C.,§ 19-815A, as added by S.L. 1971, ch. 250, § 1, p. 1005.

CASE NOTES

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).

Cited

State v. Griffith, 101 Idaho 315, 612 P.2d 552 (1980); State v. Molinelli, 105 Idaho 833, 673 P.2d 433 (1983); State v. Stuart, 113 Idaho 494, 745 P.2d 1115 (Ct. App. 1987); State v. McLellan, 154 Idaho 77, 294 P.3d 203 (Ct. App. 2013); State v. Schall, 157 Idaho 488, 337 P.3d 647 (2014).

§ 19-816. Offenses not bailable — Endorsement on commitment.

If the offense is not bailable the following words must be added to the commitment required by section 19-818[, Idaho Code]: “and he is hereby committed to the sheriff of the county of .....”

History.

Cr. Prac. 1864, § 161, p. 232; R.S., R.C., & C.L., § 7580; C.S., § 8758; I.C.A.,§ 19-716; am. 1969, ch. 467, § 10, p. 1339.

STATUTORY NOTES

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.

§ 19-817. Bailable offenses — Order admitting to bail.

If the offense is bailable, and the defendant is admitted to bail, the following words must be added to commitment required by section 19-818[, Idaho Code]: “And that he is admitted to bail in the sum of .... dollars, and is committed to the sheriff of the county of .... until he gives such bail.”

History.

Cr. Prac. 1864, § 163, p. 232; R.S., R.C., & C.L., § 7581; C.S., § 8759; I.C.A.,§ 19-717; am. 1969, ch. 467, § 11, p. 1339.

STATUTORY NOTES

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.

CASE NOTES

Authority of Sheriff.

County commissioners’ supervisory authority to control other constitutional officers did not extend to the sheriff’s bail procedures. The commissioners’ statutory duties under§§ 20-622 and 31-1503 do not encompass control of bail, which is a matter within the sheriff’s authority under this section and§§ 8-106 and 31-2202(6). Allied Bail Bonds, Inc. v. County of Kootenai, 151 Idaho 405, 258 P.3d 340 (2011).

§ 19-818. Order of commitment.

If the magistrate order the defendant to be committed he must make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed, or, if that officer is not present, to a peace officer, who must deliver the defendant into the proper custody, together with the commitment.

History.

Cr. Prac. 1864, § 164, p. 233; R.S., R.C., & C.L., § 7582; C.S., § 8760; I.C.A.,§ 19-718.

STATUTORY NOTES

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.

§ 19-819. Form of commitment.

The commitment must be to the following effect:

County of (as the case may be). The state of Idaho to the sheriff of the county of ....:

An order having been this day made by me, that A.B. be held to answer upon a charge of (stating briefly the nature of the offense, and giving as near as may be the time when and the place where the same was committed), you are commanded to receive him into your custody and detain him until he is legally discharged.

Dated this .... day of ...., . . . ..

History.

Cr. Prac. 1864, § 165, p. 233; R.S., R.C., & C.L., § 7583; C.S., § 8761; I.C.A.,§ 19-719; am. 2007, ch. 90, § 9, p. 246.

STATUTORY NOTES

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.

§ 19-820. Undertaking of witnesses to appear.

On holding the defendant to answer, the magistrate may take from each of the material witnesses examined before him on the part of the people a written undertaking to the effect that he will appear and testify at the court to which the depositions and statements are to be sent, or that he will forfeit the sum of $500.00.

History.

Cr. Prac. 1864, § 166, p. 233; R.S., R.C., & C.L., § 7584; C.S., § 8762; I.C.A.,§ 19-720.

STATUTORY NOTES

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.

§ 19-821. Security for appearance.

When the magistrate or a judge of the court in which the action is pending is satisfied, by proof on oath, that there is reason to believe that any such witness will not appear and testify unless security is required, he may order the witness to enter into a written undertaking, with sureties, in such sum as he may deem proper, for his appearance as specified in the preceding section.

History.

Cr. Prac. 1864, § 167, p. 233; R.S., R.C., & C.L., § 7585; C.S., § 8763; I.C.A.,§ 19-721.

STATUTORY NOTES

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.

CASE NOTES

Cited

State v. Zarlenga, 14 Idaho 305, 94 P. 55 (1908); State v. Mee, 102 Idaho 474, 632 P.2d 663 (1981).

§ 19-822. Security for appearance — Infants and married women.

Infants and married women who are material witnesses against the defendant may be required to procure sureties for their appearance, as provided in the last section.

History.

Cr. Prac. 1864, § 168, p. 233; R.S., R.C., & C.L., § 7586; C.S., § 8764; I.C.A.,§ 19-722.

STATUTORY NOTES

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.

§ 19-823. Commitment for failure to give security.

If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the magistrate must commit him to prison until he complies or is legally discharged.

History.

Cr. Prac. 1864, § 169, p. 233; R.S., R.C., & C.L., § 7587; C.S., § 8765; I.C.A.,§ 19-723.

STATUTORY NOTES

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.

§ 19-824. Conditional examination.

When, however, it satisfactorily appears by examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the people. Such examination must be by question and answer in the presence of the defendant, or after notice to him, if on bail, and conducted in the same manner as the examination before a committing magistrate is required by this chapter to be conducted, and the witness thereupon be discharged; but this section does not apply to an accomplice in the commission of the offense charged.

History.

Cr. Prac. 1864, § 170, p. 233; R.S., R.C., & C.L., § 7588; C.S., § 8766; I.C.A.,§ 19-724.

STATUTORY NOTES

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.

CASE NOTES

Use of Deposition.

Deposition in a criminal case taken under provisions of this section is admissible as evidence. State v. White, 7 Idaho 150, 61 P. 517 (1900).

Deposition may be used if it is first shown that due diligence has been ineffectually exercised to procure attendance of witness. State v. Ireland, 9 Idaho 686, 75 P. 257 (1904).

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).

§ 19-825. Return of papers to district court.

When a magistrate has held a defendant to answer for the commission of a public offense, he must, without unnecessary delay and after the transcript of preliminary examination has been transcribed or the depositions of witnesses have been reduced to writing in compliance with section 19-812, Idaho Code, return to the clerk of the district court to which the defendant has been held to answer, the complaint, the warrant, if any, the transcript of preliminary examination or depositions of witnesses testifying at the preliminary examination, a certified copy of the transcript of his docket, the order holding defendant to answer, all undertakings of bail or for the appearance of witnesses taken by him, together with any other written documents on file which the magistrate is required by law to transmit to said district court.

History.

Cr. Prac. 1864, § 172, p. 234; R.S., R.C., & C.L., § 7589; C.S., § 8767; I.C.A.,§ 19-725; am. 1969, ch. 467, § 12, p. 1339.

STATUTORY NOTES

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.

CASE NOTES

Delay in Return Not Jurisdictional.

Where magistrate delayed returning papers for more than five months, it was held that, while statute could have been enforced by appropriate proceedings, such delay was not jurisdictional. State v. Main, 37 Idaho 449, 216 P. 731 (1923).

Cited

State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959); State v. Ruddell, 97 Idaho 436, 546 P.2d 391 (1976).

§ 19-826 — 19-847. [Reserved.]

Sections 19-848 through 19-866, Idaho Code, shall be known as the “Idaho Public Defense Act.”

History.

I.C.,§ 19-848, as added by 2014, ch. 247, § 1, p. 617.

RESEARCH REFERENCES

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).

§ 19-849. State public defense commission.

  1. There is hereby created in the department of self-governing agencies the state public defense commission. The commission shall consist of nine (9) members as follows:
    1. Two (2) representatives from the state legislature that shall include one (1) member from the senate and one (1) member from the house of representatives;
    2. One (1) representative appointed by the chief justice of the Idaho supreme court; and
    3. Six (6) representatives appointed by the governor and confirmed by the senate as follows:
      1. Two (2) representatives from the Idaho association of counties;
      2. Two (2) representatives who have experience as a defending attorney;
      3. One (1) representative from the office of the state appellate public defender; and
      4. One (1) representative from the Idaho juvenile justice commission.
  2. No individual who is currently employed as a prosecuting attorney or who is a current employee of a law enforcement agency may be a member of the commission.
  3. The members of the commission shall serve the following terms:
    1. The gubernatorial appointees shall serve terms of three (3) years.
    2. The representative appointed by the chief justice of the Idaho supreme court shall serve a term of two (2) years.
    3. The representatives from the state legislature shall serve terms of two (2) years as appointed by the president pro tempore of the senate and speaker of the house of representatives during their legislative terms of office.
  4. A vacancy on the commission shall be filled in the same manner as the original appointment and for the balance of the unexpired term.
  5. The commission shall appoint a chairman and a vice chairman from among its members for a term certain.
  6. The members of the commission shall be compensated as provided for in section 59-509(b), Idaho Code.

History.

I.C.,§ 19-849, as added by 2014, ch. 247, § 2, p. 617; am. 2018, ch. 161, § 1, p. 318.

STATUTORY NOTES

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 .

CASE NOTES

Constitutional Responsibility.

The state, through the public defense commission, not the governor personally, is resonsible for carrying out the constitutional requirements of the Idaho public defense act, §§ 19-848 to 19-866. Tucker v. State, 162 Idaho 11, 394 P.3d 54 (2017).

RESEARCH REFERENCES

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).

§ 19-850. Powers and duties of the state public defense commission.

  1. The state public defense commission shall:
    1. Promulgate rules in accordance with the provisions of chapter 52, title 67, Idaho Code, establishing the following:
      1. 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, capital, abuse and neglect, post-conviction, civil commitment and criminal contempt;
      2. Uniform data reporting requirements and model forms for the annual reports submitted pursuant to section 19-864, Idaho Code, which shall include, but not be limited to, caseload, workload and expenditures;
      3. Model contracts and core requirements for contracts between counties and private attorneys for the provision of indigent defense services, which shall include, but not be limited to, compliance with indigent defense standards;
      4. Procedures and forms by which counties may apply to the commission, pursuant to section 19-862A, Idaho Code, for funds to be used to bring their delivery of indigent defense services into compliance with applicable indigent defense standards;
      5. Procedures for administrative review and fair hearings in accordance with the Idaho administrative procedure act, which shall include, but not be limited to, providing for a neutral hearing officer in such hearings;
      6. Procedures for the oversight, implementation, enforcement and modification of indigent defense standards so that the right to counsel of indigent persons, as provided in section 19-852, Idaho Code, is constitutionally delivered to all indigent persons in this state; and
      7. Standards for defending attorneys that utilize, to the extent reasonably practicable taking into consideration factors such as case complexity, support services and travel, the following principles:
        1. The delivery of indigent defense services should be independent of political and judicial influence, though the judiciary is encouraged to contribute information and advice concerning the delivery of indigent defense services.
        2. Defending attorneys should have sufficient time and private physical space so that attorney-client confidentiality is safeguarded during meetings with clients.
        3. Defending attorneys’ workloads should permit effective representation.
        4. Economic disincentives or incentives that impair defending attorneys’ ability to provide effective representation should be avoided.
        5. Defending attorneys’ abilities, training and experience should match the nature and complexity of the cases in which they provide services including, but not limited to, cases involving complex felonies, juveniles and child protection.
        6. The defending attorney assigned to a particular case should, to the extent reasonably practicable, continuously oversee the representation of that case and personally appear at every substantive court hearing.
        7. There should be reasonable equity between defending attorneys and prosecuting attorneys with respect to resources, staff and facilities.
        8. Defending attorneys should obtain continuing legal education relevant to their indigent defense cases. 9. Defending attorneys should be regularly reviewed and supervised for compliance with indigent defense standards and, if applicable, compliance with indigent defense standards as set forth in contractual provisions.
        9. Defending attorneys should be regularly reviewed and supervised for compliance with indigent defense standards and, if applicable, compliance with indigent defense standards as set forth in contractual provisions.
        10. Defending attorneys should identify and resolve conflicts of interest in conformance with the Idaho rules of professional conduct and other applicable constitutional standards.
    2. 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:
      1. Enforcement mechanisms; and
      2. Funding issues including, but not limited to, formulas for the calculation of local shares and state indigent defense financial assistance.
      3. If the statutory aggravating circumstance has been proven beyond a reasonable doubt, whether all mitigating circumstances, when weighed against the aggravating circumstance, are sufficiently compelling that the death penalty would be unjust.
    3. Review indigent defense providers and defending attorneys to evaluate compliance with indigent defense standards and the terms of state indigent defense financial assistance.
    4. Notwithstanding the provisions of paragraph (a)(iv) of this subsection, establish temporary procedures and model forms by which counties may apply to the commission for state indigent defense financial assistance pursuant to section 19-862A, Idaho Code, to be utilized until rules promulgated pursuant to paragraph (a)(iv) of this subsection are in full force and effect. Such temporary procedures shall not be subject to administrative or judicial review.
    5. Hold at least one (1) meeting in each calendar quarter.
  2. The state public defense commission may:
    1. Hire an executive director, who shall be responsible for the performance of the regular administrative functions of the commission and other duties as the commission may direct. The executive director shall be a nonclassified state employee and shall be compensated as determined by the commission.
    2. Employ persons in addition to the executive director in other positions or capacities as it deems necessary to the proper conduct of commission business and to the fulfillment of the commission’s responsibilities. The employees of the commission other than the executive director shall be classified employees and shall receive as compensation an annual salary payable on regular pay periods, the amount of which shall be determined by the commission.
    3. Provide an office, office equipment and facilities as may be reasonably necessary for the proper performance of its duties or the duties of the executive director and other personnel.
    4. Provide training and continuing legal education for indigent defense providers and defending attorneys in order to assist them in satisfying requirements promulgated pursuant to subsection (1)(a)(i) of this section, and use moneys received from a grant or trust or otherwise received and appropriated to provide such training and continuing legal education.
    5. Establish procedures by which indigent defense providers or a county, through its board of county commissioners, may apply to the commission for funds to be used for extraordinary litigation costs including, but not limited to, expert witnesses, evidence testing and investigation, but not including expenses associated with capital crimes.
    6. Hire private counsel to represent the commission in hearings held in accordance with the Idaho administrative procedure act and the rules promulgated pursuant to subsection (1)(a)(v) of this section.

Violation of or noncompliance with the principles listed in this subparagraph does not constitute ineffective assistance of counsel under the constitution of the United States or the state of Idaho and does not otherwise constitute grounds for post-conviction relief.

History. I.C.,§ 19-850, as added by 2014, ch. 247, § 3, p. 617; am. 2016, ch. 195, § 1, p. 544; am. 2018, ch. 162, § 1, p. 319; am. 2019, ch. 35, § 1, p. 97.

STATUTORY NOTES

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).

CASE NOTES

Public Defense System.

District court erred in dismissing the criminal defendants’ action against the state and members of the state public defense commission (PDC), alleging that Idaho’s public defense system was constitutionally inadequate, because the state had the power and responsibility to ensure public defense was constitutionally adequate, and the PDC failed to promulgate rules governing training and caseload reporting requirements. Tucker v. State, 162 Idaho 11, 394 P.3d 54 (2017).

RESEARCH REFERENCES

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).

§ 19-851. Right to representation by counsel — Definitions.

In this act, the term:

  1. “Commission” means the state public defense commission as created pursuant to section 19-849, Idaho Code;
  2. “Defending attorney” means any attorney employed by an indigent defense provider or otherwise assigned to represent adults or juveniles at public expense;
  3. “Detain” means to have in custody or otherwise deprive of freedom of action;
  4. “Expenses,” when used with reference to representation under this act, includes the expenses of investigation, other preparation and trial;
  5. “Indigent defense provider” means any agency, entity, organization or person selected by a board of county commissioners in accordance with section 19-859, Idaho Code, or a designee of the commission if the commission’s actions to remedy specific deficiencies pursuant to section 19-862A(11)(b), Idaho Code, involve the direct provision of indigent defense services, as a means to provide for the representation of indigent persons and other individuals who are entitled to be represented by an attorney at public expense;
  6. “Indigent defense standard” means any rule promulgated by the commission pursuant to section 19-850(1)(a), Idaho Code;
  7. “Indigent person” means a person who, at the time his need is determined pursuant to section 19-854, Idaho Code, is unable to provide for the full payment of an attorney and all other necessary expenses of representation;
  8. “Local share” means the benchmark figure calculated by the commission to determine the minimum amount of county funding that shall be maintained by a county and to determine the award amount of state indigent defense financial assistance for which a county may be eligible pursuant to section 19-862A, Idaho Code. For any given county fiscal year, a county’s local share shall be the median of the annual amount in county funds expended by that county for indigent defense during each of the first three (3) of the preceding five (5) county fiscal years, as certified by the county clerk. In calculating this amount, county indigent defense expenditures shall not include:
    1. Amounts received from the public defense commission; and
    2. Amounts expended for capital cases by those counties participating in the capital crimes defense program in excess of premiums and deductibles required by guidelines approved by the Idaho capital crimes defense fund board of directors;
  9. “Serious crime” means any offense, the penalty for which includes the possibility of confinement, incarceration, imprisonment or detention in a correctional facility, regardless of whether actually imposed;
  10. “State indigent defense financial assistance” means the state funding a county may be awarded pursuant to section 19-862A, Idaho Code.

History.

1967, ch. 181, § 1, p. 599; am. 1968 (2nd E. S.), ch. 10, § 1, p. 20; am. 1972, ch. 27, § 1, p. 39; am. 1972, ch. 385, § 1, p. 1117; am. 1995, ch. 59, § 1, p. 130; am. 2005, ch. 93, § 1, p. 313; am. 2013, ch. 220, § 1, p. 515; am. 2016, ch. 195, § 2, p. 544; am. 2019, ch. 35, § 2, p. 97.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979); State v. Weaver, 135 Idaho 5, 13 P.3d 5 (Ct. App. 2000); State v. Suiter, 138 Idaho 662, 67 P.3d 1274 (Ct. App. 2003); State v. Smith, 161 Idaho 162, 384 P.3d 409 (Ct. App. 2016).

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).

RESEARCH REFERENCES

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.

§ 19-852. Right to counsel of indigent person — Representation at all stages of criminal and commitment proceedings — Payment.

  1. An indigent person who is being detained by a law enforcement officer, who is confined or is the subject of hospitalization proceedings pursuant to section 18-212, 66-322, 66-326, 66-329, 66-404 or 66-406, Idaho Code, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is entitled:
    1. To be represented by an attorney to the same extent as a person having his own counsel is so entitled; and
    2. To be provided with the necessary services and facilities of representation including investigation and other preparation. The attorney, services and facilities and the court costs shall be provided at public expense to the extent that the person is, at the time the court determines indigency pursuant to section 19-854, Idaho Code, unable to provide for their payment.
  2. An indigent person who is entitled to be represented by an attorney under subsection (1) of this section is entitled:
    1. To be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney and including revocation of probation;
    2. To be represented in any appeal;
    3. To be represented in any other post-conviction or post-commitment proceeding that the attorney or the indigent person considers appropriate, unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense and is therefore a frivolous proceeding.
  3. An indigent person’s right to a benefit under subsection (1) or (2) of this section is unaffected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.

History.

1967, ch. 181, § 2, p. 599; am. 1969 (2nd E.S.), ch. 10, § 2, p. 20; am. 1981, ch. 114, § 3, p. 169; am. 1982, ch. 59, § 3, p. 91; am. 2013, ch. 220, § 2, p. 515.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Fisk, 92 Idaho 675, 448 P.2d 768 (1968); Mahler v. Birnbaum, 95 Idaho 14, 501 P.2d 282 (1972); Aragon v. State, 114 Idaho 758, 760 P.2d 1174 (1988); Rodriguez v. State, 122 Idaho 20, 830 P.2d 531 (Ct. App. 1992); State v. Labelle, 126 Idaho 564, 887 P.2d 1071 (1994); Jakoski v. State, 136 Idaho 280, 32 P.3d 672 (Ct. App. 2001); State v. Smith, 161 Idaho 162, 384 P.3d 409 (Ct. App. 2016); Tucker v. State, 162 Idaho 11, 394 P.3d 54 (2017).

§ 19-853. Duty to notify accused or detained of right to counsel.

  1. If a person who is being detained by a law enforcement officer, or who is confined or who is the subject of hospitalization proceedings pursuant to section 66-322, 66-326, 66-329, 66-404 or 66-406, Idaho Code, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is not represented by an attorney under conditions in which a person having his own counsel would be entitled to be so represented, the law enforcement officers concerned, upon commencement of detention, or the court, upon formal charge or hearing, as the case may be, shall:
    1. Clearly inform him of his right to counsel and of the right of an indigent person to be represented by an attorney at public expense; and
    2. If the person detained or charged does not have an attorney, notify the indigent defense provider or trial court concerned, as the case may be, that he is not so represented. As used in this subsection, the term “commencement of detention” includes the taking into custody of a probationer.
  2. Upon commencement of any later judicial proceeding relating to the same matter including, but not limited to, preliminary hearing, arraignment, trial, any post-conviction proceeding or post-commitment proceeding, the presiding officer shall clearly inform the person so detained or charged of his right to counsel and of the right of an indigent person to be represented by an attorney at public expense. Provided, the appointment of an attorney at public expense in uniform post-conviction procedure act proceedings shall be in accordance with section 19-4904, Idaho Code.
  3. If a court determines that the person is entitled to be represented by an attorney at public expense, it shall promptly notify the indigent defense provider.
  4. Upon notification by the court, the indigent defense provider shall represent the person with respect to whom the notification is made.

History.

1967, ch. 181, § 3, p. 599; 1968 (2nd E.S.), ch. 10, § 3, p. 20; am. 1981, ch. 114, § 4, p. 169; am. 1982, ch. 59, § 4, p. 91; am. 1984, ch. 229, § 1, p. 548; am. 2001, ch. 160, § 1, p. 568; am. 2013, ch. 220, § 3, p. 515; am. 2014, ch. 247, § 4, p. 617; am. 2015, ch. 244, § 2, p. 1008; am. 2016, ch. 47, § 1, p. 98; am. 2016, ch. 195, § 3, p. 544.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

Jones v. State, 93 Idaho 859, 477 P.2d 101 (1970); State v. Culbertson, 105 Idaho 128, 666 P.2d 1139 (1983); State v. Kasio, 106 Idaho 851, 683 P.2d 887 (Ct. App. 1984); Herrera v. Conner, 111 Idaho 1012, 729 P.2d 1075 (Ct. App. 1986); Rodriguez v. State, 122 Idaho 20, 830 P.2d 531 (Ct. App. 1992).

§ 19-854. Determination of indigency — Factors considered — Partial payment by accused — Reimbursement.

  1. The determination of whether a person covered under section 19-852, Idaho Code, is an indigent person shall be deferred until his first appearance in court or in a suit for payment or reimbursement under section 19-858, Idaho Code, whichever occurs earlier. Thereafter, the court concerned shall determine, with respect to each proceeding, whether he is an indigent person.
  2. The court concerned shall presume that the following persons are indigent persons unless such a determination is contrary to the interests of justice:
    1. Persons whose current monthly income does not exceed one hundred eighty-seven percent (187%) of the federal poverty guidelines issued annually by the federal department of health and human services;
    2. Persons who receive, or whose dependents receive, public assistance pursuant to title 56, Idaho Code, in the form of food assistance, health coverage, cash assistance or child care assistance; or
    3. Persons who are currently serving a sentence in a correctional facility or are being housed in a mental health facility.
  3. The court concerned may determine that persons other than those described in subsection (2) of this section are indigent persons. In determining whether a person is an indigent person and in determining the extent of his inability to pay, the court concerned may consider such factors as income, property owned, outstanding obligations, the number and ages of his dependents and the cost of bail. Participation in the Idaho health insurance exchange shall not result in the presumption of indigency.
  4. Release on bail does not necessarily prevent a person from being an indigent person.
  5. In each case, the person shall, subject to the penalties for perjury, certify in writing or by other record such material factors relating to his ability to pay as the court prescribes by rule. No information provided by a person pursuant to this subsection may be used as substantive evidence in any criminal or civil proceeding against the person except:
    1. For impeachment purposes;
    2. In a prosecution for perjury or contempt committed in providing the information; or
    3. In an attempt to enforce an obligation to reimburse the state for the cost of counsel.
  6. To the extent that a person covered under section 19-852, Idaho Code, is able to provide for an attorney, the other necessary services and facilities of representation, and court costs, the court may order him to provide for their payment.
  7. Upon conviction, notwithstanding the form of judgment or withheld judgment, plea of guilty or finding of guilt for any crime regardless of the original crime or number of counts, an indigent 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 related to the conviction, plea of guilty or finding of guilt, unless the requirement would impose a manifest hardship on the indigent person. The current inability of the indigent person to pay the reimbursement shall not, in and of itself, restrict the court from ordering reimbursement.

History. 1967, ch. 181, § 4, p. 599; am. 2001, ch. 287, § 1, p. 1023; am. 2013, ch. 220, § 4, p. 515; am. 2014, ch. 243, § 1, p. 612.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

Mahler v. Birnbaum, 95 Idaho 14, 501 P.2d 282 (1972); State v. Wilson, 136 Idaho 771, 40 P.3d 129 (Ct. App. 2001); State v. Suiter, 138 Idaho 662, 67 P.3d 1274 (Ct. App. 2003); State v. Korsen, 141 Idaho 445, 111 P.3d 130 (2005).

§ 19-855. Qualifications of counsel.

No person may be given the primary responsibility of representing an indigent person unless he is licensed to practice law in this state and is otherwise competent to counsel and defend a person charged with a crime.

History.

1967, ch. 181, § 5, p. 599; am. 2013, ch. 220, § 5, p. 515.

STATUTORY NOTES

Amendments.

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

§ 19-856. Appointment of substitute attorney. [Repealed.]

Repealed by S.L. 2013, ch. 220, § 6, effective July 1, 2013.

History.

1967, ch. 181, § 6, p. 599.

§ 19-857. Waiver of counsel — Consideration by court.

A person who has been appropriately informed of his right to counsel may waive any right provided by this act, if the court concerned, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law. The court shall consider such factors as the person’s age, education and familiarity with the English language and the complexity of the crime involved.

History.

1967, ch. 181, § 7, p. 599; am. 2013, ch. 220, § 7, p. 515.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Buzo, 121 Idaho 324, 824 P.2d 899 (Ct. App. 1991).

§ 19-858. Reimbursement to county — When authorized.

  1. The prosecuting attorney of each county may, on behalf of the county, recover payment or reimbursement, as the case may be, from each person who has received legal assistance or another benefit under this act:
    1. To which he was not entitled;
    2. With respect to which he was not an indigent person when he received it; or
    3. With respect to which he has failed to make the certification required under section 19-854, Idaho Code, and for which he refuses to pay or reimburse. Suit must be brought within five (5) years after the date on which the aid was received.
  2. The prosecuting attorney of each county may, on behalf of the county, recover payment or reimbursement, as the case may be, from each person other than a person covered under subsection (1) of this section who has received legal assistance under this act and who, on the date on which suit is brought, is financially able to pay or reimburse the county for it without manifest hardship according to the standards of ability to pay applicable under sections 19-851, 19-852 and 19-854, Idaho Code, but refuses to do so. Suit must be brought within three (3) years after the date on which the benefit was received.
  3. Amounts recovered under this section shall be paid into the county general fund.

History.

1967, ch. 181, § 8, p. 599; am. 2013, ch. 220, § 8, p. 515.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-859. Public defender authorized — Joint county public defenders.

The board of county commissioners of each county shall provide for the representation of indigent persons and other individuals who are entitled to be represented by an attorney at public expense. The board of county commissioners of each county shall provide this representation by one (1) of the following:

  1. Establishing and maintaining an office of public defender;
  2. Joining with the board of county commissioners of one (1) or more other counties within the same judicial district to establish and maintain a joint office of public defender pursuant to an agreement authorized under section 67-2328, Idaho Code;
  3. Contracting with an existing office of public defender; or
  4. Contracting with a defending attorney, provided that the terms of the contract shall not include any pricing structure that charges or pays a single fixed fee for the services and expenses of the attorney. The contract provisions of this subsection shall apply to all contracts entered into or renewed on or after the effective date of this act.

History.

1967, ch. 181, § 9, p. 599; am. 2013, ch. 220, § 9, p. 515; am. 2014, ch. 247, § 5, p. 617.

STATUTORY NOTES

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.

CASE NOTES

State Responsibility.

While the provision of public defense has been delegated to Idaho’s 44 counties under this section, the ultimate responsibility for fulfilling the constitutional duty cannot be delegated. The counties are political subdivisions of the state. Tucker v. State, 162 Idaho 11, 394 P.3d 54 (2017).

Cited

State v. Fisk, 92 Idaho 675, 448 P.2d 768 (1968).

RESEARCH REFERENCES

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).

§ 19-860. Public defender — Compensation — Appointment — Qualifications.

If the board of county commissioners of a county elects to establish and maintain an office of public defender and/or juvenile public defender or a joint office of public defender, the board shall:

  1. Prescribe the qualifications of such public defender and his rate of annual compensation, and, if so desired by the board, a rate of compensation for extraordinary services not recurring on a regular basis. So far as is possible, the compensation paid to such public defender shall not be less than the compensation paid to the county prosecutor for that portion of his practice devoted to criminal law.
  2. Provide for the establishment, maintenance and support of his office. The board of county commissioners shall appoint a public defender and/or juvenile public defender from a panel of not more than five (5) and not fewer than three (3) persons, if that many are available, designated by a committee of lawyers appointed by the administrative judge of the judicial district encompassing the county or his designee. To be a candidate, a person must be licensed to practice law in this state and must be competent to counsel and defend a person charged with a crime.

History.

1967, ch. 181, § 10, p. 599; am. 1968 (2nd E. S.), ch. 23, § 1, p. 45; am. 1988, ch. 342, § 1, p. 1019; am. 1998, ch. 72, § 1, p. 266; am. 2013, ch. 220, § 10, p. 515; am. 2014, ch. 247, § 6, p. 617; am. 2016, ch. 47, § 2, p. 98.

STATUTORY NOTES

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.

CASE NOTES

The field of operation of this act (S.L. 1967, ch. 181) is coextensive with the scope of the general constitutional right to the assistance of counsel. State v. Reyna, 92 Idaho 669, 448 P.2d 762 (1968).

Cited

State v. Fisk, 92 Idaho 675, 448 P.2d 768 (1968); Hall v. State, 155 Idaho 610, 315 P.3d 798 (2013).

§ 19-861. Public defender’s office — Employees — Compensation — Facilities.

  1. If an office of public defender or a joint office of public defender has been established, the public defender may employ, in the manner and at the compensation prescribed by the board of county commissioners, as many assistant public defenders, clerks, investigators, stenographers, and other persons as the board considers necessary for carrying out his responsibilities under this act. A person employed under this section serves at the pleasure of the public defender.
  2. If an office of public defender or a joint office of public defender has been established, the board of county commissioners shall:
    1. Provide appropriate facilities including office space, furniture, equipment, books, postage, supplies and interviewing facilities in the jail, necessary for carrying out the public defender’s responsibilities under this act; or
    2. Grant the public defender an allowance in place of those facilities.
  3. A defending attorney is entitled to use the same state facilities for the evaluation of evidence as are available to the county prosecutor. If he considers their use impractical, the court concerned may authorize the use of private facilities to be paid for on court order by the county board of commissioners.

History.

1967, ch. 181, § 11, p. 599; am. 2014, ch. 247, § 7, p. 617.

STATUTORY NOTES

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.

CASE NOTES

In a murder prosecution it was not error for the court to refuse to allow the defendant the services of a private investigator under subsection (3) of 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). Since the statute authorizes an attorney to use “the same state facilities for evaluation of evidence as are available to the county prosecutor” and the motion to inspect the premises and for production of documents in a burglary prosecution hardly had reference to the use of state facilities for evaluating evidence, and did not make reference to the right of an accused to inspect all the “documents in the file of the case,” there was no error on the part of the trial court in denying defendant’s motion. 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).

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

§ 19-862A. Compliance — Indigent defense financial assistance.

  1. All counties, indigent defense providers and defending attorneys shall cooperate and participate with the commission in the review of their indigent defense services.
  2. By May 15 of each year, each county may submit to the commission a compliance proposal, which shall be an essential requirement in order to be considered for state indigent defense financial assistance. The compliance proposal 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. The proposal shall also include a cost analysis that shall specifically identify the amount of funding in excess of the applicable local share, if any, necessary to allow the county to successfully execute its plan. In the event the commission determines that the county can successfully execute its plan without exhausting the entirety of the financial assistance for which it may be eligible, a proposal submitted pursuant to this section may request funding to be used for other improvements to its delivery of indigent defense services. Such other improvements may include, but are not limited to, funding for investigation costs, witness expenses and other extraordinary litigation costs.
  3. The amount of state indigent defense financial assistance shall not exceed fifteen percent (15%) of the county’s local share for said county fiscal year or twenty-five thousand dollars ($25,000), whichever is greater. If a county elects to join with the board of county commissioners of one (1) or more other counties within the same judicial district to establish and maintain a joint office of public defender pursuant to section 19-859(2), Idaho Code, each participating county shall be eligible for an additional twenty-five thousand dollars ($25,000) per year. The maximum amount of state indigent defense financial assistance shall remain in effect until July 1, 2019, unless otherwise addressed by the legislature prior to that date.
  4. The commission shall accept a compliance proposal submitted under subsection (2) of this section, in an amount deemed appropriate by the commission, if the proposal:
    1. Includes a plan that is necessary to meet or improve upon indigent defense standards; and
    2. Demonstrates that the amount of the requested state indigent defense financial assistance is necessary to meet or improve upon indigent defense standards.
  5. The commission shall accept or reject a compliance proposal submitted under subsection (2) of this section within sixty (60) days of the submission of the compliance proposal. If the commission rejects the proposal, the county shall consult with the commission and submit a revised proposal within thirty (30) days of the mailing date of the official notification of the commission’s rejection. If after two (2) revisions a resolution is not reached, any dispute shall be resolved in accordance with the Idaho administrative procedure act and rules promulgated by the commission pursuant to section 19-850(1)(a)(v), Idaho Code.
  6. On October 1, 2016, or as soon thereafter as is practicable, and on October 1 of each year thereafter, or as soon thereafter as is practicable, the commission shall distribute the approved state indigent defense financial assistance to a county if:
    1. The most recent annual report required by section 19-864, Idaho Code, has been filed, to the satisfaction of the commission;
    2. The county has filed, to the satisfaction of the commission, its most recent proposal for state indigent defense financial assistance required by subsection (2) of this section; and
    3. The county has cured, to the satisfaction of the commission, any material breach of the terms of previously approved state indigent defense financial assistance.
  7. On or before September 1, 2016, and by September 1 of each year thereafter, the commission shall submit a report with its annual budget request to the office of the administrator of the division of financial management and the legislative services office requesting the appropriation of funds necessary to provide state indigent defense financial assistance to counties as approved by the commission. The information used to create this report shall be made available to the administrator of the division of financial management and the legislative services office.
  8. A county may be required to provide indigent defense funds in excess of its local share in the event the cost of successfully executing its plan submitted pursuant to subsection (2) of this section exceeds the sum of its local share and the maximum state indigent defense financial assistance for which it may be eligible in a given county fiscal year.
  9. By March 31 of each year, all counties shall be in compliance with indigent defense standards that were in full force and effect as of May 1 of the prior year.
  10. Each proposal submitted pursuant to subsection (2) of this section after March 31, 2017, shall contain an attestation stating whether the county has complied with indigent defense standards as required by subsection (9) of this section and, if not, a specific explanation for its failure to do so.
  11. In the event the commission determines that any county has failed to materially comply with indigent defense standards, the commission shall:
    1. Require the county’s upcoming state indigent defense compliance proposal to specifically address how the noncompliance will be cured in the upcoming county fiscal year as provided in subsection (2) of this section; or
    2. If any county has willfully and materially failed to comply with indigent defense standards, notify the county in writing of its determination and intent to remedy specific deficiencies at the expense of the county to the extent necessary to comply with indigent defense standards. Within thirty (30) days of the date of said notice, the commission and the county or their designees shall attempt to meet at least once to resolve the issues of the noncompliance. If the commission and the county are unable to resolve the matter through this meeting process, the commission and county shall mutually set a date for mediation within forty-five (45) days, with the cost of mediation to be paid equally by the parties. If after mediation the commission and the county are unable to come to a resolution, the commission shall provide written notice to the county of its decision to remedy specific deficiencies at the expense of the county to the extent necessary to comply with indigent defense standards. This decision is subject to administrative review as provided in subsection (13) of this section. If the county does not timely request administrative review or if the administrative review process affirms the commission’s determination, the commission shall remedy specific deficiencies at the expense of the county to the extent necessary to comply with indigent defense standards.
  12. If the commission acts to remedy specific deficiencies as provided in subsection (11)(b) of this section, the county shall pay to the commission, notwithstanding the county’s applicable local share, the amount incurred by the commission in remedying specific deficiencies as billed by the commission on a semiannual basis coinciding with the county fiscal year. Such amount shall be paid to the commission within sixty (60) days of the date of the billing. If the county fails to provide the commission with the funds billed pursuant to this subsection within sixty (60) days of the date of the commission’s billing, the state treasurer shall immediately intercept any payments from sales tax moneys that would be distributed to the county pursuant to section 63-3638, Idaho Code, and apply the intercepted payments to reimburse the commission for the costs incurred in remedying specific deficiencies as billed pursuant to this subsection. The foregoing intercept and transfer provisions shall operate by force of law and no consent thereto is required of the county in order to be enforceable. The commission and the state have no obligation to the county or to any person or entity to replace any moneys intercepted under the authority of this subsection. (13) A county aggrieved by a decision made by the commission pursuant to subsection (11)(b) of this section shall be afforded reasonable notice and opportunity for a fair hearing in accordance with the Idaho administrative procedure act and rules promulgated by the commission pursuant to section 19-850(1)(a)(v), Idaho Code.
  13. A county aggrieved by a decision made by the commission pursuant to subsection (11)(b) of this section shall be afforded reasonable notice and opportunity for a fair hearing in accordance with the Idaho administrative procedure act and rules promulgated by the commission pursuant to section 19-850(1)(a)(v), Idaho Code.
  14. If the commission’s actions to remedy specific deficiencies, pursuant to subsection (11)(b) of this section, involve providing indigent defense services on behalf of a county, the county may submit a compliance proposal for state indigent defense financial assistance in accordance with subsection (2) of this section and request to resume providing indigent defense services. The commission may accept the proposal and permit the county to resume providing indigent defense services in the event the county has demonstrated that it has cured or will cure any material noncompliance with indigent defense standards to the satisfaction of the commission.
  15. Failure to comply with the standards promulgated pursuant to section 19-850(1)(a), Idaho Code, or the terms of state indigent defense financial assistance does not constitute ineffective assistance of counsel under the constitutions of the United States or the state of Idaho.

History.

I.C.,§ 19-862A, as added by 2016, ch. 195, § 5, p. 544; am. 2019, ch. 35, § 3, p. 97.

STATUTORY NOTES

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).

§ 19-863. Defense expenses — Allocation in jointly established offices.

  1. Subject to section 19-861, Idaho Code, any direct expense, including the cost of a transcript that is necessarily incurred in representing an indigent person under this act, is a county charge against the county on behalf of which the service is performed.
  2. If two (2) or more counties jointly establish an office of public defender, the expenses not otherwise allocable among the participating counties under subsection (1) of this section shall be allocated, unless the counties otherwise agree, on the basis of population according to the most recent decennial census.

History.

1967, ch. 181, § 13, p. 599; am. 2013, ch. 220, § 11, p. 515.

STATUTORY NOTES

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.

§ 19-863A. Capital crimes defense fund authorized.

  1. The establishment of a capital crimes defense fund by the counties of the state for purposes of funding the costs of criminal defense in cases where the penalty of death is a legal possibility is hereby authorized. The fund shall be organized and operated in accordance with a joint powers agreement, as authorized by chapter 23, title 67, Idaho Code, executed by the participating counties. Membership in the fund shall be voluntary, as determined by resolution of the board of county commissioners of the respective counties of the state.
  2. The fund may be comprised of contributions from participating counties and any court fees or other funds designated or appropriated for deposit in the fund by the legislature.
  3. The fund shall be operated and administered by a board of representatives to be selected as provided in the joint powers agreement. If moneys are appropriated to the fund by the legislature, the governor shall appoint a representative of the executive branch of state government to serve as a voting member of the governing board, and if court fees are designated for deposit in the fund, the Idaho supreme court shall appoint a representative of the judicial branch of state government to serve as a voting member of the board.
  4. The governing board of the fund shall have full authority to employ personnel and contract for personal and professional services as necessary and may take all other steps necessary or proper to determine the manner in which the fund shall be utilized to assist participating counties in meeting defense costs associated with representation of indigent defendants charged with crimes for which the penalty of death is a legal possibility.
  5. The services of the state appellate public defender as provided in section 19-870, Idaho Code, shall be available only to those counties participating in the fund.

History.

I.C.,§ 19-863A, as added by 1998, ch. 389, § 1, p. 1190.

§ 19-864. Records of defending attorneys — Annual report of defending attorneys.

  1. Indigent defense providers and defending attorneys shall keep appropriate records respecting each person whom they represent under this act.
  2. On or before November 1 of each year, indigent defense providers and any defending attorney whose information is not otherwise included in a report from an indigent defense provider shall submit an annual report to the board of county commissioners, the appropriate administrative district judge and the commission in conformance with the rules promulgated pursuant to section 19-850(1)(a)(ii), Idaho Code.

History.

1967, ch. 181, § 14, p. 599; am. 2013, ch. 220, § 12, p. 515; am. 2016, ch. 195, § 6, p. 544.

STATUTORY NOTES

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.

§ 19-865. Application of act — State courts — Federal courts.

This act applies only to representation in the courts of this state, except that it does not prohibit a defending attorney from representing an indigent person in a federal court of the United States, if:

  1. The matter arises out of or is related to an action pending or recently pending in a court of criminal jurisdiction of the state; or
  2. Representation is under a plan of the United States district court as required by the criminal justice act of 1964, 18 U.S.C. 3006A, and is approved by the board of county commissioners.

History.

1967, ch. 181, § 15, p. 599; am. 2013, ch. 220, § 13, p. 515; am. 2014, ch. 97, § 4, p. 265.

STATUTORY NOTES

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.”

§ 19-866. Provisions not exclusive.

The protections provided by this act do not exclude any protection or sanction that the law otherwise provides.

History.

1967, ch. 181, § 17, p. 599.

STATUTORY NOTES

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.

§ 19-867. Short title.

Sections 19-867 through 19-872, Idaho Code, shall be known as the “State Appellate Public Defender Act.”

History.

I.C.,§ 19-867, as added by 1998, ch. 389, § 2, p. 1190.

§ 19-868. Statement of legislative intent.

The legislature recognizes that the cost of legal representation of indigent defendants upon the appeal of their criminal convictions, particularly convictions for first-degree murder, is an extraordinary burden on the counties of this state. In order to reduce this burden, provide competent counsel but avoid paying high hourly rates to independent counsel to represent indigent defendants in appellate proceedings, the legislature hereby creates the office of the state appellate public defender.

History.

I.C.,§ 19-868, as added by 1998, ch. 389, § 3, p. 1190.

§ 19-869. Creation — Appointment — Qualifications — Term — Compensation.

  1. The office of state appellate public defender is hereby created in the department of self-governing agencies.
  2. The state appellate public defender shall be appointed by the governor, with the advice and consent of the senate.
  3. The state appellate public defender shall be an attorney licensed to practice law in the state of Idaho and shall have a minimum of five (5) years’ experience as a practicing attorney. The governor may prescribe such further qualifications as he deems necessary for the position.
  4. The state appellate public defender shall serve for a term of four (4) years, during which term he may be removed only for good cause, and shall be compensated in an amount determined by the governor.
  5. The state appellate public defender may adopt policies or rules necessary to give effect to the purposes of this act.

History.

I.C.,§ 19-869, as added by 1998, ch. 389, § 4, p. 1190; am. 2011, ch. 8, § 1, p. 20; am. 2011, ch. 67, § 1, p. 142.

STATUTORY NOTES

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.

§ 19-870. Powers and duties.

  1. Subject to the provisions of subsection (2) of this section, the state appellate public defender, upon appointment by the court, shall provide representation for indigent defendants in the following cases:
    1. Appeals from convictions or post-judgment orders in district court;
    2. Interlocutory criminal appeals from district court;
    3. Appeals from the district court of misdemeanor cases where the notice of appeal was filed on or after October 1, 2020;
    4. Appeals from the district court of orders or final judgments affecting a juvenile offender under the juvenile corrections act, chapter 5, title 20, Idaho Code, where the order or final judgment was entered on or after October 1, 2020;
    5. Appeals from the district court in post-conviction relief proceedings brought pursuant to the uniform post-conviction procedure act, chapter 49, title 19, Idaho Code;
    6. Appeals from the district court in habeas corpus proceedings brought pursuant to chapter 42, title 19, Idaho Code; and
    7. Post-conviction relief proceedings in district court in capital cases.
  2. The services of the state appellate public defender shall be available only to those counties participating in the capital crimes defense fund established pursuant to section 19-863A, Idaho Code.
  3. The state appellate public defender may employ deputy state appellate public defenders and other employees necessary to carry out the responsibilities of the office. The state appellate public defender, in his discretion, may contract with private attorneys to provide representation on a case-by-case basis when such contracts would conserve budgetary resources.
    1. A deputy state appellate public defender must be licensed to practice law in the state of Idaho and possess any other qualifications required by the state appellate public defender.
    2. The state appellate public defender shall fix the compensation of all employees of the office and they shall serve at his pleasure.
    3. The state appellate public defender, deputy state appellate public defenders and all employees of the office of the state appellate public defender shall be nonclassified employees pursuant to section 67-5303, Idaho Code.
  4. The state appellate public defender shall have any and all other powers and duties necessary to carry out the purposes of this act, including the authority to promulgate rules in accordance with the provisions of chapter 52, title 67, Idaho Code.

History.

I.C.,§ 19-870, as added by 1998, ch. 389, § 5, p. 1190; am. 1999, ch. 157, § 1, p. 435; am. 2016, ch. 200, § 1, p. 560; am. 2020, ch. 68, § 1, p. 155.

STATUTORY NOTES

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.

§ 19-871. Appointment of additional counsel.

Should the state appellate public defender be unable to carry out the duties required in this act because of a conflict of interest or any other reason, the state appellate public defender shall arrange for counsel for indigent defendants to be compensated out of the budget of the state appellate public defender.

History.

I.C.,§ 19-871, as added by 1998, ch. 389, § 6, p. 1190.

STATUTORY NOTES

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.

CASE NOTES

Conflict of Interest.

This section clearly contemplates that, where the state appellate public defender (SAPD) is conflicted out of a case, it is obligated to arrange for counsel for indigent defendants to be compensated out of the budget of the SAPD. However, before the SAPD’s obligation is triggered, a conflict must already be identified that prevents the SAPD from acting as counsel and the SAPD must arrange for counsel to carry out its duties. Accordingly, the existence of an actual conflict is a condition precedent to the SAPD’s duty to arrange for and compensate conflict counsel. Hall v. State, 155 Idaho 610, 315 P.3d 798 (2013).

§ 19-872. Annual report.

The state appellate public defender shall make an annual report to the state board of examiners, the supreme court, the legislature and all counties for whom the office has provided services concerning the cases handled by his office during the preceding year.

History.

I.C.,§ 19-872, as added by 1998, ch. 389, § 7, p. 1190.

STATUTORY NOTES

Cross References.

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

§ 19-848. Short title.

Chapter 9 MODE OF PROSECUTION OF PUBLIC OFFENSES

Sec.

§ 19-901. Indictment or information.

All public offenses triable in the district court must be prosecuted by indictment, or information, except as provided in the next section.

History.

Cr. Prac. 1864, § 173, p. 234; R.S., § 7600; am. R.C. & C.L., § 7600; C.S., § 8768; I.C.A.,§ 19-801.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

Fox v. Flynn, 27 Idaho 721, 150 P. 44 (1915); In re Winn, 28 Idaho 461, 154 P. 497 (1916); Kline v. Shoup, 38 Idaho 202, 226 P. 729 (1923).

RESEARCH REFERENCES

Am. Jur. 2d.
C.J.S.

§ 19-902. Mode of prosecution for removal of officers.

When the proceedings are had for the removal of district, county, municipal or precinct officers they may be commenced by an accusation or information, in writing, as provided in chapter 41 of this title.

History.

Cr. Prac. 1864, § 174, p. 234; R.S., R.C., & C.L., § 7601; C.S., § 8769; I.C.A.,§ 19-802.

STATUTORY NOTES

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.

CASE NOTES

Cited

Kline v. Shoup, 38 Idaho 202, 226 P. 729 (1923); Pittam v. Maynard, 103 Idaho 177, 646 P.2d 419 (1982).

§ 19-903. Indictments and accusations — Where found.

All accusations against district, county, municipal and precinct officers, and all indictments, must be found in the district court.

History.

Cr. Prac. 1864, § 175, p. 234; R.S., R.C., & C.L., § 7602; C.S., § 8770; I.C.A.,§ 19-803.

STATUTORY NOTES

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.

CASE NOTES

Cited

State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941).

Chapter 10 FORMATION OF GRAND JURY

Sec.

§ 19-1001. Challenge — By whom made.

The people, or a person held to answer a charge for a public offense, may challenge the panel of a grand jury, or an individual juror.

History.

Cr. Prac. 1864, § 177, p. 235; R.S., R.C., & C.L., § 7607; C.S., § 8771; I.C.A.,§ 19-901.

STATUTORY NOTES

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.

CASE NOTES

Effect on Indictment.

A motion to set aside indictment, made at time of arraignment, may be made for any cause that would have been grounds for challenge of panel or individual grand juror. State v. Roberts, 33 Idaho 30, 188 P. 895 (1920).

RESEARCH REFERENCES

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.

§ 19-1002. Grounds for challenge to panel.

A challenge to the panel may be interposed for one or more of the following causes only:

  1. That the requisite number of ballots was not drawn from the jury box of the county.
  2. That notice of the drawing of the grand jury was not given.
  3. That the drawing was not had in the presence of the officers designated by law.

History.

Cr. Prac. 1864, § 178, p. 235; R.S., R.C., & C.L., § 7608; C.S., § 8772; I.C.A.,§ 19-902.

STATUTORY NOTES

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.

CASE NOTES

Effect on Indictment.

As a rule, a challenge must be interposed before an indictment is found; however, accused may also move to quash indictment at time of arraignment. State v. Roberts, 33 Idaho 30, 188 P. 895 (1920).

§ 19-1003. Grounds for challenge to individual jurors.

A challenge to an individual grand juror may be interposed for one or more of the following causes:

  1. That he is a minor.
  2. That he is an alien.
  3. That he is insane.
  4. That he is a prosecutor upon a charge against the defendant.
  5. That he is a witness on the part of the prosecution, and has been served with process or bound by an undertaking as such.
  6. That he has formed or expressed an unqualified opinion or belief that the defendant is guilty or not guilty of the offense charged; but a hypothetical opinion, founded on hearsay or information supposed to be true, unaccompanied with malice or ill will, shall not disqualify a grand juror or be a cause of challenge.
  7. That a state of mind exists on his part in reference to the case, or to either party, which satisfies the court that he cannot act impartially and without prejudice to the substantial rights of the party challenging.

History.

Cr. Prac. 1864, § 179, p. 235; R.S., R.C., & C.L., § 7609; C.S., § 8773; I.C.A.,§ 19-903.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Hardy, 4 Idaho 478, 42 P. 507 (1895).

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

CASE NOTES

Effect on Indictment.

A motion to set aside indictment may be made at time of arraignment upon any grounds for challenge of panel or individual grand juror. State v. Roberts, 33 Idaho 30, 188 P. 895 (1920).

§ 19-1005. Decision upon challenge.

The court must allow or disallow the challenge, and the clerk must enter its decisions upon the minutes.

History.

Cr. Prac. 1864, § 181, p. 235; R.S., R.C., & C.L., § 7611; C.S., § 8775; I.C.A.,§ 19-905.

STATUTORY NOTES

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.

§ 19-1006. Challenge to panel — Effect of allowance.

If a challenge to the panel is allowed the grand jury are prohibited from inquiring into the charge against the defendant, by whom the challenge was interposed. If, notwithstanding, they do so, and find an indictment against him, the court must direct it to be set aside.

History.

Cr. Prac. 1864, § 182, p. 235; R.S., R.C., & C.L., § 7612; C.S., § 8776; I.C.A.,§ 19-906.

STATUTORY NOTES

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.

§ 19-1007. Challenge to individual — Effect of allowance.

If a challenge to an individual grand juror is allowed he can not be present or take part in the consideration of the charge as to which he was challenged against the defendant who interposed the challenge, or the deliberations of the grand jury thereon. The grand jury must inform the court of a violation of this section, and it is punishable by the court as a contempt.

History.

Cr. Prac. 1864, §§ 183, 184, p. 235; R.S., R.C., & C.L., § 7613; C.S., § 8777; I.C.A.,§ 19-907.

STATUTORY NOTES

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.

CASE NOTES

Unauthorized Presence of Juror.

When grand juror is disqualified, he should not be present or take any part in consideration of the charge as to which he is disqualified, but he still remains a member of grand jury. If he takes part in such deliberations, notwithstanding injunction of court, he should be punished for contempt, but it is not ground for setting aside indictment. Territory v. Staples, 3 Idaho 35, 26 P. 166 (1891).

§ 19-1008. Manner of filling panel after sustaining challenge.

If more than three challenges to individual grand jurors are allowed to the same defendant in reference to the same charge, the court must fill the panel to sixteen as to that charge by causing a sufficient number of competent jurors from those summoned and not before called, or if a sufficient number are not in attendance, then from the bystanders or from the body of the county to be sworn to act as jurors with the regular panel, upon the examination of that charge; and, if necessary to secure the full number of sixteen competent jurors, the court may require the sheriff to summon the required number.

History.

R.S., R.C., & C.L., § 7614; C.S., § 8778; I.C.A.,§ 19-908.

STATUTORY NOTES

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.

CASE NOTES

Number of Jurors.

It appears from this section that under certain circumstances grand jury may sit with less than sixteen members and return valid indictment. Rich v. Varian, 36 Idaho 355, 210 P. 1011 (1922).

§ 19-1009. Objections must be by challenge.

A person held to answer to a charge for a public offense can take advantage of any objection to the panel or to any individual grand juror in no other mode than by challenge.

History.

Cr. Prac. 1864, § 185, p. 235; R.S., R.C., & C.L., § 7615; C.S., § 8779; I.C.A.,§ 19-909.

STATUTORY NOTES

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.

§ 19-1010. Appointment of foreman.

From the persons summoned to serve as grand jurors and appearing, the court must appoint a foreman. The court must also appoint a foreman when the person already appointed is excused or discharged before the grand jury is dismissed.

History.

Cr. Prac. 1864, § 186, p. 235; R.S., R.C., & C.L., § 7616; C.S., § 8780; I.C.A.,§ 19-910.

STATUTORY NOTES

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.

§ 19-1011. Oath of foreman.

The following oath must be administered to the foreman of the grand jury:

You, as foreman of the grand jury, will diligently inquire into and true presentment make, of all public offenses against the state of Idaho, committed or triable within this county, of which you shall have or can obtain legal evidence. You will keep your own counsel, and that of your fellows, and of the government, and will not, except when required in the due course of judicial proceedings, disclose the testimony of any witness examined before you, nor anything which you or any other grand juror may have said nor the manner in which you or any other grand juror may have voted in any matter before you. You will present no person through malice, hatred, or ill will, nor leave any unpresented through fear, favor or affection, or for any reward or the promise or hope thereof; but in all your presentments you will present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding, so help you God.

History.

Cr. Prac. 1864, § 187, p. 236; R.S., R.C., & C.L., § 7617; C.S., § 8781; I.C.A.,§ 19-911.

STATUTORY NOTES

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.

§ 19-1012. Oath of jurors.

The following oath must be immediately thereupon administered to the other grand jurors present:

The same oath which your foreman has now taken before you on his part, you and each of you shall well and truly observe on your part, so help you God.

History.

Cr. Prac. 1864, § 188, p. 236; R.S., R.C., & C.L., § 7618; C.S., § 8782; I.C.A.,§ 19-912.

STATUTORY NOTES

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.

§ 19-1013. Charge to jury.

The grand jury being impaneled and sworn, must be charged by the court. In doing so, the court must give them such information as it may deem proper, or as is required by law, as to their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury.

History.

Cr. Prac. 1864, § 189, p. 236; R.S., R.C., & C.L., § 7619; C.S., § 8783; I.C.A.,§ 19-913.

STATUTORY NOTES

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.

§ 19-1014. Retirement and discharge of jury.

The grand jury must then retire to a private room and inquire into the offenses cognizable by them. On the completion of the business before them, they must be discharged by the final adjournment of the court.

History.

Cr. Prac. 1864, §§ 190, 191, p. 236; R.S., R.C., & C.L., § 7620; C.S., § 8784; I.C.A.,§ 19-914.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-1015. Special grand jury.

If an offense is committed during the sitting of the court, after the discharge of the grand jury, the court may, in its discretion, direct an order to be entered that the sheriff summon another grand jury.

History.

Cr. Prac. 1864, § 192, p. 236; R.S., R.C., & C.L., § 7621; C.S., § 8785; I.C.A.,§ 19-915.

STATUTORY NOTES

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.

§ 19-1016. Special grand jury — Contents and delivery of order.

The order must require the sheriff to summon twenty persons, qualified to serve as grand jurors, to appear at a time specified, and a copy thereof, under the seal of the court, must, by the clerk be delivered to the sheriff.

History.

Cr. Prac. 1864, § 193, p. 236; R.S., R.C., & C.L., § 7622; C.S., § 8786; I.C.A.,§ 19-916.

STATUTORY NOTES

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.

§ 19-1017. Special grand jury — Execution and return of order.

The sheriff must execute the order and return it, with a list of names of the persons summoned.

History.

Cr. Prac. 1864, § 194, p. 236; R.S., R.C., & C.L., § 7623; C.S., § 8787; I.C.A.,§ 19-917.

STATUTORY NOTES

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.

§ 19-1018. Drawing of special jury.

At the time appointed the list must be called over, and the names of those in attendance be written by the clerk on separate ballots and put into a box, from which a grand jury must be drawn.

History.

Cr. Prac. 1864, § 195, p. 236; R.S., R.C., & C.L., § 7624; C.S., § 8788; I.C.A.,§ 19-918.

STATUTORY NOTES

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.

Chapter 11 POWERS AND DUTIES OF GRAND JURY

Sec.

§ 19-1101. Powers and duties in general.

The grand jury must inquire into all public offenses committed or triable within the county, and present them to the court, either by presentment or by indictment.

History.

Cr. Prac. 1864, § 201, p. 237; R.S., R.C., & C.L., § 7630; C.S., § 8789; I.C.A.,§ 19-1001.

STATUTORY NOTES

Cross References.

Grand jury, Idaho R. Crim. P. 6.1 to 6.9.

CASE NOTES

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).

RESEARCH REFERENCES

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.

§ 19-1102. Presentment defined.

A presentment is a formal statement in writing, by the grand jury, representing to the court that a public offense has been committed which is triable in the county, and that there is reasonable ground for believing that a particular individual named or described therein has committed it.

History.

Cr. Prac. 1864, § 203, p. 237; R.S., R.C., & C.L., § 7631; C.S., § 8790; I.C.A.,§ 19-1002.

CASE NOTES

Cited

State v. Bullis, 93 Idaho 749, 472 P.2d 315 (1970).

§ 19-1103. Indictment defined.

An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.

History.

Cr. Prac. 1864, § 202, p. 237; R.S., R.C., & C.L., § 7632; C.S., § 8791; I.C.A.,§ 19-1003.

CASE NOTES

Cited

Territory v. Evans, 2 Idaho 425, 17 P. 139 (1888); State v. Bilboa, 38 Idaho 92, 213 P. 1025, 222 P. 785 (1923); State v. Jackson, 96 Idaho 584, 532 P.2d 926 (1975).

§ 19-1104. Foreman may administer oaths.

The foreman may administer an oath to any witness appearing before the grand jury.

History.

Cr. Prac. 1864, § 204, p. 237; R.S., R.C., & C.L., § 7633; C.S., § 8792; I.C.A.,§ 19-1004.

STATUTORY NOTES

Cross References.

Form of oath, Idaho R. Crim. P. 6.

§ 19-1105. Evidence receivable by grand jury.

In the investigation of a charge for the purpose of either presentment or indictment, the grand jury can receive any evidence that is given by witnesses produced and sworn before them except as hereinafter provided, furnished by legal documentary evidence, the deposition of a witness in the cases provided by this code or legally admissible hearsay. No witness whose testimony has been taken and reduced to writing on a preliminary examination must be subpoenaed or required to appear before the grand jury, until such testimony has been first submitted to and considered by the grand jury, but if such testimony has been lost or cannot be found, or if the grand jury after considering the same still desires the presence of any such witnesses, they may be subpoenaed.

History.

Cr. Prac. 1864, §§ 205, 206, p. 237; R.S., R.C., & C.L., § 7634; C.S., § 8793; I.C.A.,§ 19-1005; am. 1989, ch. 49, § 1, p. 62.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-1106. Evidence for defendant.

The grand jury is not bound to hear evidence for the defendant; but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be produced, and for that purpose may require the prosecuting attorney to issue process for the witnesses.

History.

Cr. Prac. 1864, § 207, p. 237; R.S., R.C., & C.L., § 7635; C.S., § 8794; I.C.A.,§ 19-1006.

STATUTORY NOTES

Cross References.

Issuance of process, Idaho R. Crim. P. 6.4.

§ 19-1107. Sufficiency of evidence to warrant indictment.

The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.

History.

Cr. Prac. 1864, § 208, p. 238; R.S., R.C., & C.L., § 7636; C.S., § 8795; I.C.A.,§ 19-1007.

CASE NOTES

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).

§ 19-1108. Duty of juror having knowledge of offense.

If a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he must declare the same to his fellow jurors, who must thereupon investigate the same.

History.

Cr. Prac. 1864, § 209, p. 238; R.S., R.C., & C.L., § 7637; C.S., § 8796; I.C.A.,§ 19-1008.

§ 19-1109. Matters of inquiry. [Repealed.]

STATUTORY NOTES

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.

§ 19-1110. Access to prisons and public records.

They [The grand jury] are also entitled to free access, at all reasonable times, to the public prisons, and to the examination, without charge, of all public records within the county.

History.

Cr. Prac. 1864, § 211, p. 238; R.S., R.C., & C.L., § 7639; C.S., § 8798; I.C.A.,§ 19-1010.

STATUTORY NOTES

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.

§ 19-1111. Who may be present at sessions of jury.

The grand jury may, at all reasonable times, ask the advice of the court, or the judge thereof, or of the prosecuting attorney; but unless such advice is asked, the judge of the court must not be present during the sessions of the grand jury. The prosecuting attorney of the county may at all times appear before the grand jury for the purpose of giving them information or advice relative to any matter cognizable by them, and may interrogate witnesses before them whenever they or he think it necessary, but no other person is permitted to be present during the sessions of the grand jury, except the members and witnesses actually under examination, and an interpreter, when necessary, and no person must be permitted to be present during the expressions of their opinions, or giving their votes upon any matter before them.

History.

Cr. Prac. 1864, § 212, p. 238; R.S., R.C., & C.L., § 7640; C.S., § 8799; I.C.A.,§ 19-1011.

STATUTORY NOTES

Cross References.

Attendees at grand jury sessions, Idaho R. Crim. P. 6.3.

Prosecuting attorney to attend grand jury when so requested,§ 31-2604.

CASE NOTES

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).

§ 19-1112. Proceedings to be secret.

Every member of the grand jury must keep secret whatever he himself, or any other grand juror may have said, or in what manner he or any other grand juror may have voted on a matter before them; and such matters shall be subject to disclosure according to chapter 1, title 74, Idaho Code, but may, however, be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against such person for perjury in giving his testimony, or upon trial therefor.

History.

Cr. Prac. 1864, §§ 213, 214, p. 238; R.S., R.C., & C.L., § 7641; C.S., § 8800; I.C.A.,§ 19-1012; am. 1990, ch. 213, § 13, p. 480; am. 2015, ch. 141, § 19, p. 379.

STATUTORY NOTES

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.

CASE NOTES

Cited

Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953); State v. Bullis, 93 Idaho 749, 472 P.2d 315 (1970); State v. Dutt, 139 Idaho 99, 73 P.3d 112 (Ct. App. 2003).

§ 19-1113. Juror not to be questioned.

A grand juror cannot be questioned for anything he may say, or any vote he may give in the grand jury relative to a matter legally pending before the jury, except for a perjury of which he may have been guilty, in making an accusation or giving testimony to his fellow jurors.

History.

Cr. Prac. 1864, § 215, p. 238; R.S., R.C., & C.L., § 7642; C.S., § 8801; I.C.A.,§ 19-1013.

CASE NOTES

Cited

Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953).

§ 19-1114. Notice of refusal to give incriminating evidence — Agreement to testify with immunity — Perjury — Compelling answer.

In any criminal proceeding or in any investigation or proceeding before a grand jury in connection with any criminal offense, if a person has advised the prosecuting attorney that he will refuse to answer a question or produce evidence, if called as a witness, on the ground that he may be incriminated thereby, the person may agree in writing with the prosecuting attorney of the county to testify voluntarily pursuant to this section. Upon written request of such prosecuting attorney being made to the district court in and for that county, said district court shall approve such written agreement, unless the court finds that to do so would be clearly contrary to the public interest. If after court approval of such agreement, and if, but for this section, the person would have been privileged to withhold the answer given or the evidence produced by him, the answer given, or evidence produced, and any information directly or indirectly derived from the answer or evidence, may not be used against the person in any manner in a criminal case but the person may, nevertheless, be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering or in producing evidence in accordance with such agreement. If such person fails to give any answer or to produce any evidence in accordance with such agreement, that person shall be prosecuted or subjected to penalty or forfeiture in the same manner and to the same extent as he would be prosecuted or subjected to penalty or forfeiture but for this section: provided, that if such person fails to give any answer or to produce any evidence in accordance with such agreement, the prosecuting attorney may request the district court to compel the person to answer or produce evidence, in accordance with section 19-1115, Idaho Code.

History.

1970, ch. 60, § 1, p. 146; am. 2000, ch. 238, § 1, p. 668.

STATUTORY NOTES

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.

CASE NOTES

Applicability. Construction.

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).

Cited

State v. Rodgers, 119 Idaho 1066, 812 P.2d 1227 (Ct. App. 1990).

§ 19-1115. Refusal to give incriminating evidence — Compelling to answer or produce evidence — Immunity — Perjury.

In any criminal proceeding or in any investigation or proceeding before a grand jury in connection with any criminal offense, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and if the prosecuting attorney of the county in writing requests the district court in and for that county to order that person to answer the question or produce the evidence, a judge of the district court shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced, and the court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order. After complying, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, the answer given, or evidence produced, and any information directly or indirectly derived from the answer or evidence, may not be used against the compelled person in any manner in a criminal case, except that he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order.

History.

1970, ch. 60, § 2, p. 146; am. 2000, ch. 238, § 2, p. 668.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Rodgers, 119 Idaho 1066, 812 P.2d 1227 (Ct. App. 1990).

§ 19-1116. Special inquiry judge.

Upon the petition by affidavit of a prosecuting attorney of any county of the state of Idaho for the appointment of a special inquiry judge to conduct an inquiry into the existence of suspected crime or corruption within his jurisdiction, the administrative district court judge of the judicial district wherein the county is situated, may designate a judge from the magistrate division of the district court to preside over said inquiry.

History.

I.C.,§ 19-1116, as added by 1980, ch. 251, § 1, p. 660.

§ 19-1117. Special inquiry judge — Petition for order.

  1. When the prosecuting attorney of any county has reason to suspect crime or corruption, within his jurisdiction, and there is reason to suspect that there are persons who may be able to give material testimony or provide material evidence concerning such suspected crime or corruption, such attorney may issue subpoenas directed to such persons commanding them to appear at a designated time and place in said county before the special inquiry judge and to then and there answer such questions under oath concerning the suspected crime or corruption as may be asked by the prosecuting attorney or special inquiry judge.
  2. At any time after service of such subpoenas and before the return date thereof, the prosecuting attorney may apply to the special inquiry judge for an order vacating or modifying the subpoena on the grounds that such is in the public interest. Upon such application, the court may in its discretion vacate the subpoena, extend its return date, attach reasonable conditions to directions, or make such other qualification thereof as is appropriate.
  3. The proceedings to summon a person and compel him to testify or provide evidence shall as far as possible be the same as proceedings to summon witnesses and compel their attendance. Such persons shall receive only those fees paid witnesses in district court criminal trials.

History.

I.C.,§ 19-1117, as added by 1980, ch. 251, § 2, p. 660.

§ 19-1118. Special inquiry judge — Disqualification from subsequent proceedings.

The judge serving as a special inquiry judge shall be disqualified from acting as a magistrate or judge in any subsequent court proceeding arising from such inquiry except alleged contempt for neglect or refusal to appear, testify or provide evidence at such inquiry in response to an order, summons or subpoena.

History.

I.C.,§ 19-1118, as added by 1980, ch. 251, § 3, p. 660.

§ 19-1119. Special inquiry judge — Direction to prosecuting attorney to participate in proceedings in another county — Procedure.

Upon petition of a prosecuting attorney to the special inquiry judge that there is reason to suspect that there exists evidence of crime and corruption in another county, and with the concurrence of the special inquiry judge and prosecuting attorney of the other county, the special inquiry judge shall direct the prosecuting attorney of the initiating county to attend and participate in special inquiry judge proceedings in the other county held to inquire into crime and corruption which relates to crime or corruption under investigation in the initiating county. The proceedings of such special inquiry judge may be transcribed, certified and filed in the county of the initiating prosecuting attorney’s jurisdiction at the expense of that county.

History.

I.C.,§ 19-1119, as added by 1980, ch. 251, § 4, p. 660.

§ 19-1120. Witnesses — Attendance.

  1. A prosecuting attorney may call as a witness, in a special inquiry judge proceeding, any person suspected by him to possess information or knowledge relevant thereto and may issue legal process and subpoena to compel his attendance and the production of evidence.
  2. The special inquiry judge may cause to be called as a witness any person suspected by him to possess relevant information or knowledge. If the special inquiry judge desires to hear any such witness who was not called by a prosecuting attorney, it may direct the prosecuting attorney to issue and serve a subpoena upon such witness and the prosecuting attorney must comply with such direction.

History.

I.C.,§ 19-1120, as added by 1980, ch. 251, § 5, p. 660.

§ 19-1121. Self-incrimination — Right to counsel.

Any individual called to testify before a special inquiry judge, whether as a witness or principal, if not represented by an attorney appearing with the witness before the special inquiry judge, must be told of his privilege against self-incrimination. Such an individual must be informed that he has the right to have an attorney present to advise him as to his rights, obligations and duties before the special inquiry judge. Such attorney may be present as an observer and advisor during all proceedings, unless immunity has been granted pursuant to sections [section] 19-1114, 19-1115 or 19-1122, Idaho Code. After immunity has been granted, such an individual may leave the special inquiry room to confer with his attorney.

History.

I.C.,§ 19-1121, as added by 1980, ch. 251, § 6, p. 660.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion in the next-to-last sentence was added by the compiler to correct the syntax of the sentence.

CASE NOTES

Prosecutor’s Comment on Defendant’s Silence.

Where federal habeas petitioner, an inmate convicted of first-degree murder and sentenced to death, conceded at trial that his decision to speak with a psychologist was voluntary, and there was no evidentiary support of the inmate’s claim that the police promised him use immunity in exchange for agreeing to talk with the psychologist, there was no error in admitting that evidence at trial; the same was not quite as true of his silence at the special inquiry, which was arguably a judicial, rather than a police, proceeding because the distinction between the two was enough to suggest that the inmate’s silence at the special inquiry may not have been relevant to his claim of cooperation with the police, and that it was arguably improper to comment upon the exercise of his right to remain silent as to certain questions. However, in the context of all of the evidence in the case, including the myriad of other inconsistencies in his stories, any error was harmless as far as this habeas corpus proceeding was concerned. Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004), cert. denied, 545 U.S. 1105, 125 S. Ct. 2540, 162 L. Ed. 2d 277 (2005).

§ 19-1122. Self-incrimination — Refusal to testify or give evidence — Procedure.

If in any proceedings [proceeding] before a special inquiry judge, a person refuses, or indicates in advance a refusal, to testify or provide evidence of any other kind on the ground that he may be incriminated thereby, and if a prosecuting attorney requests the court to order that person to testify or provide the evidence, the court shall then hold a hearing and shall so order unless it finds that to do so would be clearly contrary to the public interest, and that person shall comply with the order.

If, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but none of the testimony nor evidence presented by the witness relative to the issue under investigation before the special inquiry judge, nor any information directly or indirectly derived from his testimony, can be used against him in any further criminal proceeding. He may nevertheless be prosecuted for failing to comply with the order to answer, or for perjury or for offering false evidence to the special inquiry judge.

History.

I.C.,§ 19-1122, as added by 1980, ch. 251, § 7, p. 660.

STATUTORY NOTES

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.

§ 19-1123. Secrecy enjoined — Exceptions — Use and availability of evidence.

  1. No individual, who is present during a special inquiry judge proceeding or who shall gain information with regard to said inquiry, shall disclose the testimony of a witness examined before the special inquiry judge or other evidence received by him, except such testimony or evidence may be disclosed in the following cases: when the district court requires disclosure of such testimony to determine whether it is consistent with testimony given by the witness before district court; by a prosecuting attorney when communicating with any law enforcement officer; upon a charge against the witness for perjury in giving his testimony in the special inquiry judge proceeding or upon trial therefor; or when permitted by the district court in the furtherance of justice.
  2. The prosecuting attorney shall have access to all special inquiry judge evidence and may introduce such evidence before any grand jury or judicial proceeding in which the same may be relevant.
  3. Any witness testimony, given before a special inquiry judge and relevant to any subsequent proceeding against the witness, shall be made available to the witness upon proper application to the district court. The district court may also, upon proper application and upon a showing of good cause, make available to a defendant in a subsequent criminal proceeding other testimony or evidence when given or presented before a special inquiry judge, if the court finds that doing so is necessary to prevent an injustice and that there is no reason to believe that doing so would endanger the life or safety of any witness or his family. The cost of any such transcript made available shall be borne by the applicant.

History.

I.C.,§ 19-1123, as added by 1980, ch. 251, § 8, p. 660.

Chapter 12 PRESENTMENT AND PROCEEDINGS THEREON

Sec.

§ 19-1201. Presentment, how found.

A presentment cannot be found without the concurrence of at least twelve (12) grand jurors. When so found, it must be signed by the foreman.

History.

Cr. Prac. 1864, § 216, p. 239; R.S., R.C., & C.L., § 7647; C.S., § 8802; I.C.A.,§ 19-1101.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-1202. Must be presented to court.

The presentment, when found, must be presented by the foreman, in presence of the grand jury, to the court, and must be filed with the clerk.

History.

Cr. Prac. 1864, § 217, p. 239; R.S., R.C., & C.L., § 7648; C.S., § 8803; I.C.A.,§ 19-1102.

STATUTORY NOTES

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.

§ 19-1203. Court may order bench warrant.

If the facts stated in the presentment constitute a public offense, triable in the county, the court must direct the clerk to issue a bench warrant for the arrest of the defendant.

History.

Cr. Prac. 1864, § 220, p. 239; R.S., R.C., & C.L., § 7649; C.S., § 8804; I.C.A,§ 19-1103.

STATUTORY NOTES

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.

§ 19-1204. Issuance of bench warrant.

The clerk, on the application of the judge or prosecuting attorney, may accordingly, at any time after the order, whether the court be sitting or not, issue a bench warrant under his signature and the seal of the court into one or more counties.

History.

Cr. Prac. 1864, § 221, p. 239; R.S., R.C., & C.L., § 7650; C.S., § 8805; I.C.A.,§ 19-1104.

STATUTORY NOTES

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.

§ 19-1205. Form of bench warrant.

The bench warrant, upon presentment, must be substantially in the following form:

County of ..... The state of Idaho to any sheriff, constable, marshal or policeman in this state: A presentment having been made on the .... day of ...., .... to the district court of the county of ...., charging C.D. with the crime of ...., (designating it generally) you are therefore commanded forthwith to arrest the above named C.D., and take him before E.F., a magistrate of this county, or in case of his absence or inability to act, before the nearest and most accessible magistrate in this county. Given under my hand with the seal of said court affixed, this .... day of ...., .....

By order of the court.

(Seal.)     G.H., Clerk.

History.

Cr. Prac. 1864, § 222, p. 239; R.S., R.C., & C.L., § 7651; C.S., § 8806; I.C.A.,§ 19-1105; am. 2007, ch. 90, § 10, p. 246.

STATUTORY NOTES

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.

§ 19-1206. Service of bench warrant.

The bench warrant may be served in any county, and the officer serving it must proceed thereon as upon a warrant of arrest on an information.

History.

Cr. Prac. 1864, § 223, p. 239; R.S., R.C., & C.L., § 7652; C.S., § 8807; I.C.A.,§ 19-1106.

STATUTORY NOTES

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.

§ 19-1207. Proceedings of magistrate.

The magistrate, when the defendant is brought before him, must proceed upon the charges contained in the presentment, in the same manner as upon a warrant of arrest on an information.

History.

Cr. Prac. 1864, § 224, p. 239; R.S., R.C., & C.L., § 7653; C.S., § 8808; I.C.A.,§ 19-1107.

STATUTORY NOTES

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.

Chapter 13 INFORMATION AND PROCEEDINGS THEREON

Sec.

§ 19-1301. Power and jurisdiction of courts.

The several courts of this state shall possess and may exercise the same power and jurisdiction to hear, try, and determine prosecutions upon information for crimes, misdemeanors and offenses, to issue writs and process, and do all other acts therein as they possess and may exercise in cases of like prosecutions upon indictments.

History.

1890-1891, p. 184, § 1; reen. 1899, p. 125, § 1; reen. R.C. & C.L., § 7655; C.S., § 8809; I.C.A.,§ 19-1201.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

Davis v. Burke, 179 U.S. 399, 21 S. Ct. 210, 45 L. Ed. 249 (1900); In re Marshall, 6 Idaho 516, 56 P. 470 (1899); Hodges v. Tucker, 25 Idaho 563, 138 P. 1139 (1914); State v. Gee, 48 Idaho 688, 284 P. 845 (1930).

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Schmierer, 159 Idaho 768, 367 P.3d 163 (2016).

§ 19-1303. Statement of offense charged.

The offense charged in all informations shall be stated with the same fullness and precision in matters of substance as is required in indictments in like cases, and in all cases defendant or defendants shall have the same rights as to proceedings therein as he or they would have if prosecuted for the same offense upon indictment.

History.

1890-1891, p. 184, § 3; am. 1893, p. 164, § 1; reen. 1899, p. 125, § 3; reen. R.C. & C.L., § 7657; C.S., § 8811; I.C.A.,§ 19-1203.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000); State v. Schmierer, 159 Idaho 768, 367 P.3d 163 (2016).

§ 19-1304. Provisions concerning indictment applicable to information.

The provisions of this code in relation to indictments, and all other provisions of law applying to prosecutions upon indictments, to writs and process therein, and the issuing and service thereof, to motions, pleadings, trials and punishments, or the execution of any sentence, and to all other proceedings in cases of indictment, whether in the court of original or appellate jurisdiction, shall in the same manner and to the same extent, as near as may be, apply to informations and all prosecutions and proceedings thereon.

History.

1890-1891, p. 184, § 4; reen. 1899, p. 125, § 4; am. R.C. & C.L., § 7658; C.S., § 8812; I.C.A.,§ 19-1204.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Clark, 4 Idaho 7, 35 P. 710 (1894); In re Marshall, 6 Idaho 516, 56 P. 470 (1899); State v. Steensland, 33 Idaho 529, 195 P. 1080 (1921); State v. Cooper, 35 Idaho 73, 204 P. 204 (1922); State v. Montroy, 37 Idaho 684, 217 P. 611 (1923); State v. Foell, 37 Idaho 722, 217 P. 608 (1923); State v. Bilboa, 38 Idaho 92, 213 P. 1025, 222 P. 785 (1923); State v. Arnold, 39 Idaho 589, 229 P. 748 (1924); State v. Arregui, 44 Idaho 43, 254 P. 788 (1927); In re Bottjer, 45 Idaho 168, 260 P. 1095 (1927); State v. Fong Wee, 47 Idaho 416, 275 P. 1112 (1929); State v. Gee, 48 Idaho 688, 284 P. 845 (1930); State v. Webb, 76 Idaho 162, 279 P.2d 634 (1955); State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959); State v. Bauman, 89 Idaho 519, 406 P.2d 810 (1965); State v. Mowrey, 91 Idaho 693, 429 P.2d 425 (1967); State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968); State v. Shannon, 95 Idaho 299, 507 P.2d 808 (1973); Martin v. Lyons, 98 Idaho 102, 558 P.2d 1063 (1977); State v. Hobson, 99 Idaho 200, 579 P.2d 697 (1978); State v. Lenz, 103 Idaho 632, 651 P.2d 566 (Ct. App. 1982); State v. Campbell, 104 Idaho 705, 662 P.2d 1149 (Ct. App. 1983); State v. Neal, 155 Idaho 484, 314 P.3d 166 (2013); State v. Schmierer, 159 Idaho 768, 367 P.3d 163 (2016).

§ 19-1305. Commitment and bail pending information.

Any person who may according to law be committed to jail, or become recognized or held to bail with sureties for his appearance in court to answer to any indictment may, in like manner, so be committed to jail or become recognized and held to bail for his appearance to answer to any information or indictment, as the case may be.

History.

1890-1891, p. 184, § 5; reen. 1899, p. 125, § 5; reen. R.C. & C.L., § 7659; C.S., § 8813; I.C.A.,§ 19-1205.

STATUTORY NOTES

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.

§ 19-1306. Prosecuting attorney to inquire into facts.

It shall be the duty of the prosecuting attorney to inquire into and make full examination of all the facts and circumstances connected with any case of preliminary examination as provided by law, touching the commission of any offense wherein the offender shall be committed to jail or become recognized or held to bail, and if the prosecuting attorney shall determine in any such case that an information ought not to be filed, he shall make, subscribe and file with the clerk of the court a statement in writing containing his reasons, in fact and in law, for not filing an information in such case, and such statement shall be filed at and during the term of court at which the offender shall be held for his appearance: provided, that in such case such court may examine said statement, together with the evidence filed in the case; and if, upon such examination, the court shall not be satisfied with said statement, the prosecuting attorney shall be directed by the court to file the proper information and bring the case to trial.

History.

1890-1891, p. 184, § 6; reen. 1899, p. 125, § 6; reen. R.C. & C.L., § 7660; C.S., § 8814; I.C.A.,§ 19-1206.

STATUTORY NOTES

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.

CASE NOTES

Discretion in Filing Complaint.

It cannot be said that the prosecuting attorney abused his discretion by failing to pursue criminal complaints against the defendants, when he first received information of the Bureau of Narcotics’ investigation, since the prosecuting attorney’s office apparently decided not to file complaints in deference to the bureau’s determination that the filing of complaints against the two defendants would possibly endanger the lives and property of all special agents connected to the investigation. State v. Murphy, 99 Idaho 511, 584 P.2d 1236 (1978).

Cited

State v. Wilbanks, 95 Idaho 346, 509 P.2d 331 (1973).

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

Grand juries shall not hereafter be drawn, summoned, or required to attend at the sittings of any court within the state, as provided by law, unless the judge thereof shall so direct in writing, under his hand, and filed with the clerk of said court.

History.

1890-1891, p. 184, § 7; reen. 1899, p. 125, § 7; reen. R.C. & C.L., § 8815; I.C.A.,§ 19-1207.

STATUTORY NOTES

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.

CASE NOTES

This section authorizes district judge sitting at chambers in one county in his district to make an order for a grand jury in another county and is not, because it confers such authority, in conflict withIdaho Const., Art. I, § 8, which provides that a grand jury may be summoned upon order of “district court.” State v. Barber, 13 Idaho 65, 88 P. 418 (1907).

§ 19-1308. Preliminary examination necessary.

No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination: provided, that information may be filed without such examination against fugitives from justice, and any fugitive from justice against whom an information shall be filed may be demanded by the governor of this state of the executive authority of any other state or territory, or of any foreign government, in the same manner, and the same proceedings may be had thereon, as provided by law in like cases of demand upon indictment filed.

History.

1890-1891, p. 184, § 8; reen. 1899, p. 125, § 8; reen. R.C. & C.L., § 7662; C.S., § 8816; I.C.A.,§ 19-1208.

STATUTORY NOTES

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.

CASE NOTES

Waiver of examination.

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).

Cited

State v. Shannon, 95 Idaho 299, 507 P.2d 808 (1973); State v. Schmierer, 159 Idaho 768, 367 P.3d 163 (2016).

§ 19-1309. Discovery and inspection.

  1. Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph any relevant:
    1. written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney,
    2. results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney, and
    3. recorded testimony of the defendant before a grand jury.
  2. Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, upon a showing of materiality to the preparation of his defense and that the request is reasonable. Except as provided in subsection (1) (b), this section does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by state agents in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses (other than the defendant) to agents of the state.
  3. If the court grants relief sought by the defendant under subsection (1) (b) or subsection (2) of this section, it may, upon motion of the state, condition its order by requiring that the defendant permit the state to inspect and copy or photograph scientific or medical reports, books, papers, documents, tangible objects, or copies or portions thereof, which the defendant intends to produce at the trial and which are within his possession, custody or control, upon a showing of materiality to the preparation of the state’s case and that the request is reasonable. Except as to scientific or medical reports, this subsection does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by state or defense witnesses, or by prospective state or defense witnesses, to the defendant, his agents or attorneys.
  4. An order of the court granting relief under this section shall specify the time, place and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.
  5. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon motion by the state, the court may permit the state to make such showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the state’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant.
  6. A motion under this section may be made only within ten (10) days after arraignment or at such reasonable later time as the court may permit. The motion shall include all relief sought under this section. A subsequent motion may be made only upon a showing of cause why such motion would be in the interest of justice. (7) If, subsequent to compliance with an order issued pursuant to this section, and prior to or during trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under the section, he shall promptly notify the other party or his attorney or the court of the existence of the additional material. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.

History.

I.C.,§ 19-1309, as added by 1969, ch. 243, § 1, p. 761.

STATUTORY NOTES

Cross References.

Discovery and inspection, Idaho R. Crim. P. 16.

CASE NOTES

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).

Cited

State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975).

RESEARCH REFERENCES

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.

Chapter 14 INDICTMENT

Sec.

§ 19-1401. Indictment, how found.

An indictment cannot be found without the concurrence of at least twelve (12) grand jurors. When so found it must be endorsed, a true bill, and the endorsement must be signed by the foreman of the grand jury.

History.

Cr. Prac. 1864, § 225, p. 241; R.S., R.C., & C.L., § 7665; C.S., § 8817; I.C.A.,§ 19-1301.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Schmierer, 159 Idaho 768, 367 P.3d 163 (2016).

RESEARCH REFERENCES

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.

§ 19-1402. Failure to find indictment — Return of depositions.

If twelve (12) grand jurors do not concur in finding an indictment against a defendant who has been held to answer, the depositions, if any, transmitted to them must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed.

History.

Cr. Prac. 1864, § 226, p. 241; R.S., R.C., & C.L., § 7666; C.S., § 8818; I.C.A.,§ 19-1302.

STATUTORY NOTES

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.

§ 19-1403. Resubmission of charge after dismissal.

The dismissal of the charge does not prevent its resubmission to a grand jury as often as the court may direct, but without such direction it cannot be resubmitted.

History.

Cr. Prac. 1864, § 227, p. 241; R.S., R.C., & C.L., § 7667; C.S., § 8819; I.C.A.,§ 19-1303.

STATUTORY NOTES

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.

§ 19-1404. Endorsement of names of witnesses.

When an indictment is found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, must be inserted at the foot of the indictment, or endorsed thereon, before it is presented to the court.

History.

Cr. Prac. 1864, § 228, p. 241; R.S., R.C., & C.L., § 7668; C.S., § 8820; I.C.A.,§ 19-1304.

STATUTORY NOTES

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.

CASE NOTES

This provision of the statute is mandatory and should be enforced at all times in prosecutions either by indictment or information, and if additional witnesses to those whose names are indorsed 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 indictment or information without delay. It is error to permit such additional witnesses to testify without their names first being indorsed on indictment or information. State v. Barber, 13 Idaho 65, 88 P. 418 (1907).

Where prosecuting attorney served upon counsel for defendant a notice that when the case was called for trial he would move the court for an order permitting him to indorse the names of two additional witnesses on the information, and by reason of the fact that no formal motion but only a notice of intention to move for such an order was in the record, the court continued the trial until after a formal motion had been filed and then made an order permitting the endorsement of the names upon the information, the court committed no error in permitting such endorsement of names where defendant was not taken by surprise nor placed at any undue disadvantage thereby. State v. Gailey, 69 Idaho 146, 204 P.2d 254 (1949).

Cited

State v. Allen, 20 Idaho 263, 117 P. 849 (1911).

§ 19-1405. Presentment and filing of indictment.

An indictment, when found by the grand jury, must be presented by their foreman, in their presence, to the court, and must be filed with the clerk.

History.

Cr. Prac. 1864, § 229, p. 241; R.S., R.C., & C.L., § 7669; C.S., § 8821; I.C.A.,§ 19-1305.

STATUTORY NOTES

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.

CASE NOTES

It is the duty of the clerk to file indictment when presented by the grand jury, and consent of the judge or court to the filing of same need not be obtained, and an order of court or judge directing clerk not to file indictment so presented is without jurisdiction and does not excuse clerk from filing the same. State v. Quarles, 13 Idaho 252, 89 P. 636 (1907).

§ 19-1406. Indictment of defendant not in custody.

When an indictment is found against a defendant not in custody, the same proceedings must be had as are described by sections 19-1501 to 19-1516[, Idaho Code], against a defendant who fails to appear for arraignment.

History.

Cr. Prac. 1864, § 230, p. 241; R.S., R.C., & C.L., § 7670; C.S., § 8822; I.C.A.,§ 19-1306.

STATUTORY NOTES

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.

CASE NOTES

Cited

Savage v. State, 164 Idaho 586, 434 P.3d 190 (2020).

§ 19-1407. Rules of pleading.

All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this code.

History.

Cr. Prac. 1864, § 231, p. 241; R.S., R.C., & C.L., § 7675; C.S., § 8823; I.C.A.,§ 19-1307.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Neil, 58 Idaho 359, 74 P.2d 586 (1937); State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941).

§ 19-1408. First pleading is indictment.

The first pleading on the part of the people is the indictment.

History.

Cr. Prac. 1864, § 232, p. 242; R.S., R.C., & C.L., § 7676; C.S., § 8824; I.C.A.,§ 19-1308.

STATUTORY NOTES

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.

CASE NOTES

Cited

State v. Gee, 48 Idaho 688, 284 P. 845 (1930).

§ 19-1409. Requirements of indictment.

The indictment must contain:

  1. The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties.
  2. A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.

History.

Cr. Prac. 1864, § 233, p. 242; R.S., R.C., & C.L., § 7677; C.S., § 8825; I.C.A.,§ 19-1309.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

Perry v. State, 4 Idaho 224, 38 P. 655 (1894); State v. Webb, 6 Idaho 428, 55 P. 892 (1899); State v. Adams, 9 Idaho 582, 75 P. 258 (1904); State v. Collett, 9 Idaho 608, 75 P. 271 (1904); State v. Rooke, 10 Idaho 388, 79 P. 82 (1904); State v. Wetter, 11 Idaho 433, 83 P. 341 (1905); State v. Swensen, 13 Idaho 1, 81 P. 379 (1905); State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318 (1907); In re Dawson, 20 Idaho 178, 117 P. 696 (1911); State v. Dingman, 37 Idaho 253, 219 P. 760 (1923); State v. Peters, 43 Idaho 564, 253 P. 842 (1927); State v. Wheeler, 70 Idaho 455, 220 P.2d 687 (1950); State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968); State v. Clark, 115 Idaho 1056, 772 P.2d 263 (Ct. App. 1989); State v. Wilhelm, 135 Idaho 111, 15 P.3d 824 (Ct. App. 2000); State v. Severson, 147 Idaho 694, 215 P.3d 414 (2009).

§ 19-1410. Form of indictment.

It may be substantially in the following form:

The state of Idaho against A.B., in the district court of the .... judicial district, in the county of ..... .... term, .....

A.B. is accused by the grand jury of the county of .... by this indictment, of the crime of (giving its legal appellation, such as murder, arson, or the like), committed as follows:

The said A.B., on the .... day of ...., ...., at the county of ...., (here set forth the act or omission charged as an offense).

History.

Cr. Prac. 1864, § 234, p. 242; R.S., R.C., & C.L., § 7678; C.S., § 8826; I.C.A.,§ 19-1310; am. 2002, ch. 32, § 3, p. 46.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Webb, 6 Idaho 428, 55 P. 892 (1899); State v. Rathbone, 8 Idaho 161, 67 P. 186 (1898); State v. Shuff, 9 Idaho 115, 72 P. 664 (1903); State v. Adams, 9 Idaho 582, 75 P. 258 (1904); State v. Rooke, 10 Idaho 388, 79 P. 82 (1904); State v. Sly, 11 Idaho 110, 80 P. 1125 (1905); State v. Wetter, 11 Idaho 433, 83 P. 341 (1905); State v. Swensen, 13 Idaho 1, 81 P. 379 (1905); State v. Steers, 12 Idaho 174, 85 P. 104 (1906); State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318 (1907); In re Dawson, 20 Idaho 178, 117 P. 696 (1911); State v. Smith, 25 Idaho 541, 138 P. 1107 (1914); State v. Mickey, 27 Idaho 626, 150 P. 39 (1915); State v. Lundhigh, 30 Idaho 365, 164 P. 690 (1917); State v. Dingman, 37 Idaho 253, 219 P. 760 (1923); State v. Arnold, 39 Idaho 589, 229 P. 748 (1927); State v. Peters, 43 Idaho 564, 253 P. 842 (1927); State v. George, 44 Idaho 173, 258 P. 551 (1927); State v. Gee, 48 Idaho 688, 284 P. 845 (1930); State v. Griffith, 55 Idaho 60, 37 P.2d 402 (1934); State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937); State v. Vanek, 59 Idaho 514, 84 P.2d 567 (1938); State v. Barr, 63 Idaho 59, 117 P.2d 282 (1941); State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941); State v. Burwell, 63 Idaho 373, 181 P.2d 197 (1941); State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967).

§ 19-1411. Certainty required of indictment.

It must be direct and certain as it regards:

  1. The party charged.
  2. The offense charged.
  3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.

History.

Cr. Prac. 1864, § 235, p. 242; R.S., R.C., & C.L., § 7679; C.S., § 8827; I.C.A.,§ 19-1311.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Webb, 6 Idaho 428, 55 P. 892 (1899); State v. Shuff, 9 Idaho 115, 72 P. 664 (1903); State v. Adams, 9 Idaho 582, 75 P. 258 (1904); State v. Wetter, 11 Idaho 433, 83 P. 341 (1905); In re Moyer, 12 Idaho 250, 85 P. 897 (1906); In re Dawson, 20 Idaho 178, 117 P. 696 (1911); State v. O’Neil, 24 Idaho 582, 135 P. 60 (1913); State v. Smith, 25 Idaho 541, 138 P. 1107 (1914); State v. Drury, 25 Idaho 787, 139 P. 1129 (1914); State v. Mickey, 27 Idaho 626, 150 P. 39 (1915); State v. Lundhigh, 30 Idaho 365, 164 P. 690 (1917); State v. Dingman, 37 Idaho 253, 219 P. 760 (1923); State v. Arnold, 39 Idaho 589, 229 P. 748 (1924); State v. Gee, 48 Idaho 688, 284 P. 845 (1930); State v. Griffith, 55 Idaho 60, 37 P.2d 402 (1934); State v. Stratford, 55 Idaho 65, 37 P.2d 681 (1934); State v. Vanek, 59 Idaho 514, 84 P.2d 567 (1938); State v. Barr, 63 Idaho 59, 117 P.2d 282 (1941); State v. Ayres, 70 Idaho 18, 211 P.2d 142 (1949); Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967); State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968); State v. Hahn, 92 Idaho 265, 441 P.2d 714 (1968); State v. Severson, 147 Idaho 694, 215 P.3d 414 (2009).

§ 19-1412. Indictment by fictitious name.

When a defendant is indicted by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, referring to the fact of his being indicted by the name mentioned in the indictment.

History.

Cr. Prac. 1864, § 236, p. 242; R.S., R.C., & C.L., § 7680; C.S., § 8828; I.C.A.,§ 19-1312.

STATUTORY NOTES

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.

CASE NOTES

Where complaint was filed before magistrate charging defendant in the name of Louis Trespi, and such defendant was committed under the name of Uterspi, and an information was filed in district court by prosecuting attorney charging said defendant with the same crime in the name of Luis Yturaspe, and upon arraignment in district court, as provided by law, he answered that Luis Yturaspe was his correct name, and it appears from the record that the person against whom the information was filed is the same person who was examined before committing magistrate and committed, and that offense was the same, information should not be quashed on ground that defendant never had a preliminary examination. State v. Yturaspe, 22 Idaho 360, 125 P. 802 (1912).

§ 19-1413. Single offense to be charged. [Repealed.]

STATUTORY NOTES

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.

§ 19-1414. Allegation as to time.

The precise time at which the offense was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.

History.

Cr. Prac. 1864, § 238, p. 242; R.S., R.C., & C.L., § 7682; C.S., § 8830; I.C.A.,§ 19-1314.

STATUTORY NOTES

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.

CASE NOTES

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).

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-1416. Construction of words.

The words used in an indictment are construed in their usual acceptance in common language, except such words and phrases as are defined by law, which are construed according to their legal meaning.

History.

Cr. Prac. 1864, § 240, p. 242; R.S., R.C., & C.L., § 7684; C.S., § 8832; I.C.A.,§ 19-1316.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Denton, 115 Idaho 402, 766 P.2d 1283 (Ct. App. 1989).

§ 19-1417. Words of statute.

Words used in a statute to define a public offense need not be strictly pursued in the indictment; but other words conveying the same meaning may be used.

History.

Cr. Prac. 1864, § 241, p. 242; R.S., R.C., & C.L., § 7685; C.S., § 8833; I.C.A.,§ 19-1317.

STATUTORY NOTES

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.

CASE NOTES

Sufficiency of Statutory Language.

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).

Cited

State v. Ellington, 4 Idaho 529, 43 P. 60 (1895); State v. Shuff, 9 Idaho 115, 72 P. 664 (1903); State v. Brill, 21 Idaho 269, 121 P. 79 (1912); State v. Mickey, 27 Idaho 626, 150 P. 39 (1915); State v. Emory, 55 Idaho 649, 46 P.2d 67 (1935); State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937); State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941); State v. Denton, 115 Idaho 402, 766 P.2d 1283 (Ct. App. 1989).

§ 19-1418. Sufficiency of indictment.

The indictment is sufficient if it can be understood therefrom:

  1. That it is entitled in a court having authority to receive it, though the name of the court be not stated.
  2. That it was found by a grand jury of the county in which the court was held.
  3. That the defendant is named, or, if his name cannot be discovered that he is described by a fictitious name, with a statement that his true name is to the jury unknown.
  4. That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.
  5. That the offense was committed at some time prior to the time of finding the indictment.
  6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
  7. That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon conviction, according to the right of the case.

History.

Cr. Prac. 1864, § 242, p. 243; R.S., R.C., & C.L., § 7686; C.S., § 8834; I.C.A.,§ 19-1318.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

United States v. Kuntze, 2 Idaho 480, 21 P. 407 (1889); State v. Ellington, 4 Idaho 529, 43 P. 60 (1895); State v. Alcorn, 7 Idaho 599, 64 P. 1014 (1901); State v. Shuff, 9 Idaho 115, 72 P. 664 (1903); State v. Neil, 13 Idaho 539, 90 P. 860 (1907); State v. Lundhigh, 30 Idaho 365, 164 P. 690 (1917); State v. Dingman, 37 Idaho 253, 219 P. 760 (1923); State v. Arnold, 39 Idaho 589, 229 P. 748 (1924); State v. Woodward, 41 Idaho 353, 238 P. 525 (1925); State v. George, 44 Idaho 173, 258 P. 551 (1927); 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. Ayres, 70 Idaho 18, 211 P.2d 142 (1949); State v. Anderson, 82 Idaho 293, 352 P.2d 972 (1960); State v. Grady, 89 Idaho 204, 404 P.2d 347 (1965); State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968); 395 U.S. 977, 89 S. Ct. 2129, 23 L. Ed. 2d 765 (1969); State v. Gumm, 99 Idaho 549, 585 P.2d 959 (1978); State v. Denton, 115 Idaho 402, 766 P.2d 1283 (Ct. App. 1989); State v. Clark, 115 Idaho 1056, 772 P.2d 263 (Ct. App. 1989); State v. Headlee, 121 Idaho 979, 829 P.2d 869 (Ct. App. 1992); State v. Severson, 147 Idaho 694, 215 P.3d 414 (2009).

§ 19-1419. Defects of form.

No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits.

History.

Cr. Prac. 1864, § 243, p. 243; R.S., R.C., & C.L., § 7687; C.S., § 8835; I.C.A.,§ 19-1319.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-1420. Amendment of indictment.

An indictment or information may be amended by the prosecuting attorney without leave of the court, at any time before the defendant pleads, and at any time thereafter, in the discretion of the court, where it can be done without prejudice to the substantial rights of the defendant. An information or indictment cannot be amended so as to charge an offense other than that for which the defendant has been held to answer.

History.

C.S., § 8835-A, as added by 1929, ch. 72, § 1, p. 110; I.C.A.,§ 19-1320.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Calkins, 63 Idaho 314, 120 P.2d 253; State v. Henry, 83 Idaho 167, 359 P.2d 514 (1961); State v. Shannon, 95 Idaho 299, 507 P.2d 808 (1973); State v. Gumm, 99 Idaho 549, 585 P.2d 959 (1978); State v. Tribe, 126 Idaho 610, 888 P.2d 389 (Ct. App. 1994); State v. Schumacher, 136 Idaho 509, 37 P.3d 6 (Ct. App. 2001); State v. Schmierer, 159 Idaho 768, 367 P.3d 163 (2016).

RESEARCH REFERENCES

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.

STATUTORY NOTES

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.

CASE NOTES

Cited

State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959).

§ 19-1422. Pleading judgments.

In pleading a judgment or other determination of, or proceeding before, a court or officer of special jurisdiction, it is not necessary to state the facts constituting jurisdiction; but the judgment or determination may be stated as given or made, or the proceedings had. The facts constituting jurisdiction, however, must be established on the trial.

History.

Cr. Prac. 1864, § 245, p. 243; R.S., R.C., & C.L., § 7689; C.S., § 8837; I.C.A.,§ 19-1322.

STATUTORY NOTES

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.

CASE NOTES

One pleading the judgment of inferior court must affirmatively prove jurisdiction of such court over subject matter. State v. Dunn, 44 Idaho 636, 258 P. 553 (1927), overruled on other grounds, State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963).

§ 19-1423. Pleading private statutes.

In pleading a private statute, or a right derived therefrom, it is sufficient to refer to the statute by its title and the day of its passage, and the court must thereupon take judicial notice thereof.

History.

Cr. Prac. 1864, § 246, p. 243; R.S., R.C., & C.L., § 7690; C.S., § 8838; I.C.A.,§ 19-1323.

STATUTORY NOTES

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.

§ 19-1424. Indictment for libel.

An indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled, or of the defamatory matter on which the indictment is founded; but it is sufficient to state generally that the same was published concerning him, and the fact that it was so published must be established on the trial.

History.

Cr. Prac. 1864, § 247, p. 243; R.S., R.C., & C.L., § 7691; C.S., § 8839; I.C.A.,§ 19-1324.

STATUTORY NOTES

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.

§ 19-1425. Misdescription of forged instrument.

When an instrument which is the subject of an indictment for forgery has been destroyed or withheld by the act or the procurement of the defendant, and the fact of such destruction or withholding is alleged in the indictment and established on the trial, the misdescription of the instrument is immaterial.

History.

Cr. Prac. 1864, § 248, p. 243; R.S., R.C., & C.L., § 7692; C.S., § 8840; I.C.A.,§ 19-1325.

STATUTORY NOTES

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.

§ 19-1426. Indictment for perjury.

In an indictment for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court and before whom the oath alleged to be false was taken, and that the court, or the person before whom it was taken, had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed.

History.

Cr. Prac. 1864, § 249, p. 244; R.S., R.C., & C.L., § 7693; C.S., § 8841; I.C.A.,§ 19-1326.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-1427. Indictment for larceny or embezzlement.

In an indictment for the larceny or embezzlement of money, bank notes, certificates of stock, or valuable securities, or for a conspiracy to cheat or defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock, or valuable securities, without specifying the coin, number, denomination, or kind thereof.

History.

R.S., R.C., & C.L., § 7694; C.S., § 8842; I.C.A.,§ 19-1327.

STATUTORY NOTES

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.

§ 19-1428. Indictment for selling obscene books.

An indictment for exhibiting, publishing, passing, selling, or offering to sell, or having in possession, with such intent, any lewd or obscene book, pamphlet, picture, print, card, paper, or writing, need not set forth any portion of the language used or figures shown upon such book, pamphlet, picture, print, card, paper, or writing; but it is sufficient to state generally the fact of the lewdness or obscenity thereof.

History.

R.S., R.C., & C.L., § 7695; C.S., § 8843; I.C.A.,§ 19-1328.

STATUTORY NOTES

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.

§ 19-1429. Conviction or acquittal of several defendants.

Upon an indictment against several defendants, any one or more may be convicted or acquitted.

History.

Cr. Prac. 1864, § 250, p. 244; R.S., R.C., & C.L., § 7696; C.S., § 8844; I.C.A.,§ 19-1329.

STATUTORY NOTES

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.

CASE NOTES

Different Penalties.

In prosecution where court has discretion of sentencing to penitentiary as for felony or jail as for misdemeanor, the court, where there are several defendants, may sentence part to penitentiary and part to jail. State v. Farnsworth, 51 Idaho 768, 10 P.2d 295 (1932).

Cited

State v. Allen, 38 Idaho 168, 219 P. 1050 (1923).

§ 19-1430. Distinction between accessories and principals abolished.

The distinction between an accessory before the fact and a principal and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal.

History.

Cr. Prac. 1864, § 251, p. 244; R.S., R.C., & C.L., § 7697; C.S., § 8845; I.C.A.,§ 19-1330.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

State v. Cramer, 20 Idaho 639, 119 P. 30 (1911); State v. Curtis, 30 Idaho 537, 165 P. 999 (1917); State v. Nolan, 31 Idaho 71, 169 P. 295 (1917); State v. Chacon, 36 Idaho 148, 209 P. 889 (1922); State v. Bull, 47 Idaho 336, 276 P. 528 (1929); State v. Stevens, 48 Idaho 335, 282 P. 93 (1929); State v. Farnsworth, 51 Idaho 768, 10 P.2d 295 (1932); State v. Fox, 52 Idaho 474, 16 P.2d 663 (1932); State v. Ayres, 70 Idaho 18, 211 P.2d 142 (1949); State v. McCandless, 70 Idaho 468, 222 P.2d 156 (1950); Howard v. Felton, 85 Idaho 286, 379 P.2d 414 (1963); State v. Perez, 99 Idaho 181, 579 P.2d 127 (1978); State v. Shackelford, 150 Idaho 355, 247 P.3d 582 (2010).

§ 19-1431. Trial of accessories without principal.

An accessory to the commission of a felony may be indicted, tried, and punished, though the principal may be neither indicted nor tried.

History.

Cr. Prac. 1864, § 252, p. 244; R.S., R.C., & C.L., § 7698; C.S., § 8846; I.C.A.,§ 19-1331.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

In re Moyer, 12 Idaho 250, 85 P. 897 (1906).

§ 19-1432. Charging two or more offenses in same indictment.

Two (2) or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.

History.

I.C.,§ 19-1432, as added by 1972, ch. 336, § 6, p. 844.

CASE NOTES

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).

Cited

State v. Jennings, 95 Idaho 724, 518 P.2d 1186 (1974).

§ 19-1433. Unnecessary to negate statutory defenses in certain cases.

In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any of the provisions of chapters [chapter] 22, 25, 27, 28, 29, 30, 31, 32, or 33, title 37, Idaho Code, it shall not be necessary to negate any exception, excuse, proviso, or exemption, contained in those chapters, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.

History.

1970, ch. 186, § 1, p. 540.

STATUTORY NOTES

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.

Chapter 15 ARRAIGNMENT

Sec.

§ 19-1501. Place of arraignment.

When the indictment is filed, the defendant must be arraigned thereon before the court in which it is found.

History.

Cr. Prac. 1864, § 254, p. 244; R.S., R.C., & C.L., § 7710; C.S., § 8847; I.C.A.,§ 19-1401.

STATUTORY NOTES

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.

CASE NOTES

Cited

State v. Major, 111 Idaho 410, 725 P.2d 115 (1986).

RESEARCH REFERENCES

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.

§ 19-1502. Presence of defendant.

If the indictment is for a felony the defendant must be personally present; but if for a misdemeanor, he may appear upon the arraignment by counsel.

History.

Cr. Prac. 1864, § 255, p. 244; R.S., R.C., & C.L., § 7711; C.S., § 8848; I.C.A.,§ 19-1402.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 19-1503. Order for production of defendant.

When his personal appearance is necessary, if he is in custody, the court may direct and the officer in whose custody he is must bring him before it to be arraigned.

History.

Cr. Prac. 1864, § 256, p. 244; R.S., R.C., & C.L., § 7712; C.S., § 8849; I.C.A.,§ 19-1403.

STATUTORY NOTES

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.

§ 19-1504. Issuance of bench warrant.

If the defendant has been discharged on bail, or has deposited money instead thereof, and does not appear to be arraigned when his personal attendance is necessary, the court, in addition to the forfeiture of the undertaking of bail or of the money deposited, may direct the clerk to issue a bench warrant for his arrest.

History.

Cr. Prac. 1864, § 257, p. 244; R.S., R.C., & C.L., § 7713; C.S., § 8850; I.C.A.,§ 19-1404.

STATUTORY NOTES

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.

§ 19-1505. Clerk to issue warrant.

The clerk, on the application of the prosecuting attorney, may, at any time after the order, whether the court is sitting or not, issue a bench warrant to one (1) or more counties.

History.

Cr. Prac. 1864, § 258, p. 245; R.S., R.C., & C.L., § 7714; C.S., § 8851; I.C.A.,§ 19-1405.

STATUTORY NOTES

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.

§ 19-1506. Form of bench warrant.

The bench warrant upon the indictment must, if the offense be a felony, be substantially in the following form:

County of ....

The state of Idaho, to any sheriff, constable, marshal or policeman of this state:

An indictment having been found on the .... day of ...., ...., in the district court of the .... judicial district, in and for the county of ...., charging C.D. with the crime of .... (designating it generally); you are therefore commanded forthwith to arrest the above named C.D., and bring him before that court to answer said indictment; or if the court has adjourned for the term, that you deliver him into the custody of the sheriff of the county of ................................

Given under my hand with the seal of said court affixed, this .... day of ...., .....

By order of said court.

(Seal.)     E. F., Clerk.

History.

Cr. Prac. 1864, § 259, p. 245; R.S., R.C., & C.L., § 7715; C.S., § 8852; I.C.A.,§ 19-1406; am. 2002, ch. 32, § 4, p. 46.

STATUTORY NOTES

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.

§ 19-1507. Bail.

The defendant, when arrested under a warrant for an offense not bailable, must be held in custody of the sheriff of the county in which the indictment is found, unless admitted to bail after an examination upon a writ of habeas corpus; but if the offense is bailable, there must be added to the body of the bench warrant a direction to the following effect, “or, if he requires it, that you take him before any magistrate in that county, or in the county in which you arrest him, that he may give bail to answer to the indictment”; and the court, upon directing it to issue, must fix the amount of bail, and an endorsement must be made thereon and signed by the clerk, to the following effect: “The defendant is to be admitted to bail in the sum of .... dollars.”

History.

Cr. Prac. 1864,§§ 260-262, p. 245; R.S., R.C., & C.L., § 7716; C.S., § 8853; I.C.A.,§ 19-1407.

STATUTORY NOTES

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.

§ 19-1508. Service of warrant.

The bench warrant may be served in any county, in the same manner as a warrant of arrest.

History.

Cr. Prac. 1864, § 263, p. 245; R.S., R.C., & C.L., § 7717; C.S., § 8854; I.C.A.,§ 19-1408.

STATUTORY NOTES

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.

§ 19-1509. Proceedings on giving bail.

If the defendant is brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings must be had thereon.

History.

Cr. Prac. 1864, § 264, p. 245; R.S., R.C., & C.L., § 7718; C.S., § 8855; I.C.A.,§ 19-1409.

STATUTORY NOTES

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.

§ 19-1510. Increasing bail.

When the indictment is for a felony and the defendant, before the finding thereof, has given bail for his appearance to answer the charge, the court to which the indictment is presented may order the defendant to be committed to actual custody, unless he gives bail in an increased amount, to be specified in the order.

History.

Cr. Prac. 1864, § 265, p. 245; R.S., R.C., & C.L., § 7719; C.S, § 8856; I.C.A.,§ 19-1410.

STATUTORY NOTES

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.

§ 19-1511. Commitment of defendant.

If the defendant is present when the order is made he must be forthwith committed. If he is not present a bench warrant must be issued and proceeded upon in the manner provided in this chapter.

History.

Cr. Prac. 1864, § 266, p. 246; R.S., R.C., & C.L., § 7720; C.S., § 8857; I.C.A.,§ 19-1411.

STATUTORY NOTES

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.

§ 19-1512. Right to counsel.

If the defendant appears for arraignment without counsel he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel.

History.

Cr. Prac. 1864, § 267, p. 246; R.S., R.C., & C.L., § 7721; C.S., § 8858; I.C.A.,§ 19-1412; am. 1967, ch. 181, § 20, p. 599.

STATUTORY NOTES

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.

CASE NOTES

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.).

Cited

State v. Lawrence, 70 Idaho 422, 220 P.2d 380 (1950); Foster v. Walus, 81 Idaho 452, 347 P.2d 120 (1959); Jackson v. State, 87 Idaho 267, 392 P.2d 695 (1964); Rodriguez v. State, 122 Idaho 20, 830 P.2d 531 (Ct. App. 1992).