OCR Text |
Show TWO HUNDRED AND FORTY-TWO WORDS NOT ENOUGH TO CHARGE CRIME AGAINST A DRUGGIST If Deputy County Attorney Had Added Fir More, He Might Have Accused Anetee of Wrongdoing; His Mistake Freed Man Who Is Said to Have Sold Cocaine; Willey Refuse to Issue New Complaint; After Eight Months of Delays, Case Is Dismissed Because of the Blunder. Two hundred and forty-two wordg were not enough in the eyea of the law to aay that g, druggist gold eocaine illegally. Deputy County Attorney Charles M. Morris used the better bet-ter part of a big page of paper trying to charge Fred Anstee with breaking the law by selling eocaine to Al Wynn-, he put in 242 words bat fell shy five. The law says he should have used those additional five to make it clear that Mr. Anstee waa charrred with a crime. So a demurrer to tke informal ion waa granted by District Judge LrfKifbourow and tke druggitt, who Chief of Police Urant deelarea confeaaed hit crime, waa released from further annoyance Tke court record e show tkat tke case waa thrown out because a deputy from County Attorney Willey 'a oflicr made errors ia kit work, yet County Attorney Willey made this emphatic statement yeeterday: "I will aot bare another complaint Sled againat Kred Anstee I am through witk tie case. " Ckiaf of Police Grant declares ke kaa strong evidence againat the drug gist. "I am not criticiting tke county attorney at-torney 'a office for making a mistake ' said tke ekief, "nut I can't see wky It should refute to issue a now complaint com-plaint that would hold good ia court." chief Qrast declared recently tkat tke powerful frieode aad relatives af Anstee used all their influence to get tke druggitt free, resorting to the tyro pathy plea for hi family but the chief says he stood una and reminded tha pleader of, tke families made miserable misera-ble through the telliag of eocaine aad Isisareof drat leafcrwed tlttd to amend thefluTfy complaint, bat tke court held tkat this would not be legal trader tke Dtak system of bouncing raaea from one settee to another there ia a lot of rod tape la sunk a case Tk county attorney mutt first bo-come bo-come acquainted witk tke on and do a lot of work aa U in tke committing magistrate's ronrt If ke eetabltakee sufficient cause for action the accused person is bound over to the district court. Tkea about tke time tke county coun-ty attorney kaa become familiar witk toe ease he let it go aad tke district attorney' office kaa to study it. He must file aa information oa the allege-tions allege-tions ia the complaint "naleaa etd-dence etd-dence at the preliminary gives exruee for additional charges," as tha district attorney explains. The county attorney 's deputy forgot to say tkat Al Wynn waa not a manufacturer manu-facturer of proprietary preparations sad alto forgot to say tkat ke wat sot aa officer or agent of nay public institution insti-tution Tke court held tkat kad Wynn been a manufacturer of proprietary preparatioat it would aot kare been unlawful for Anstee to eall eocaine to klm. I RECORD OF ANSTEE CASE IN COURT "Tk court will rerun to stake an order directing a bow information to he filed a sou this record, far tke reason rea-son tkat ike complaint itself i da feetive aad dee not form a legal foundation foun-dation for ta filing of any information informa-tion in tke ease, it doea net state a public offeaee: and it appears that oh iectloa wat taken to tke complaint before be-fore tka magistrate, so tkat no rigkt on tke part of the defendant were there (Continued on page f.) TWO HUNDRED ( Continued from page 1.) waived. "Ruling of District Judge l.nofbourow on the demurrer raised ia the l'Ved Anatee case. The complaint was drawn by the county attorney's office and omitted five words. District Attorney Leather-wood Leather-wood asked the court to order him to draw up a new information, including the words omitted in the origins! complaint. com-plaint. The court refused to issue such order. With the exception of a few paragraphs para-graphs taken out for reasons of space and because they added nothing to the clearness of this explanation, the following fol-lowing is a record of the demurrer hearing hear-ing in Judge Loofbourow's court: In the third Judicial district court of the slate of Utah. In and for Halt lake county. Hon. Frederick C. Loofbourow, ludgs. What Judge Bald. State of Utah vs. Fred Anstee. defend-snt. defend-snt. Hearing on demurrer. Be It remembered, on this 21st day of February, A. D. 1813, the aforesaid matter mat-ter came on for hearing on the dsfsnd-ant'a dsfsnd-ant'a demurrer; Horen X- Christensen, i:.ki and W. T. tlunter. l q . appearing for the defendant, anad K. O. Leather-wood, Leather-wood, district sttornsy, sppeaiing for the state, the following proceedings are had, the said demurrer being urged on the ground that the complaint does not state facts sufficient to constitute s public offense: Arguments ry respective counsel ana cases cited. The Court I have read the cases. It sesnts to me that where a crime Is pure, ly statutory sand Is not a common law offense at all. It ia not an offtiruie against the general laws throughout the states, where It Is entirely based on statute. The exceptions, sin h as are Inserted In the statute. In thla case, sre a part of the description of the crime Ton am ust make it In the Information. Juat ass they are given In the crime aa atated; just su the statute deflnea the crime, ao you must charge; snd I think thla Information Informa-tion doea not. and the complaint does not. The atatute aaya that tha complaint com-plaint must contain a statement of ths I acts or omissions complained of aa con- Mtltutlng the crime or public offense You must have It from the very begin - nlng. There must be a statement of those acts apd omlaslons In tha Information.; Infor-mation.; and If you read through this aectlon aec-tlon of the laws of 1011. chapter 117, it Is very plain to the court that tha sx-ceptlnns sx-ceptlnns sre s necesssry part of the de-acrlptlon de-acrlptlon of the crime. That Is to aay. If the sale waa made by the defendant to the manufacturer of a proprietary r e med y . f o r u se In eu ch ma n uf a c t u re, then It Is lawful; and under thla complaint, com-plaint, and under thla IrJormatlon. It may have been such a aale; and if It was. It Is lawful. It seems to the court that the Information does not state facts auf-flctept auf-flctept to const 1 1 ute a cause of action . and the demurrer will he sustained. Would Mot Hold. Mr. lostherwood Now, If the court please, under the provisions of 4776, which uppllcs to motions to set sside informations, in-formations, and alao to demurrers, when court order the district attorney to file a new information In thla matter, setting set-ting out the omitted allegation. The Court If a new information should he filed at the direction of the court, and the defendant prosecuted snd convicted, then a motion in arrest of Judgment would be good, because ths defendant has not hsd a preliminary examination on the crime charged in. the Information Informa-tion Mr. Ieatherwood 1 very carefully briefed the matter In ths Walter Perry case, snd I have satisfied myself beyond any question, so far as tha law Is concerned, con-cerned, that whsrs a transcript of the evidence la taken, the diatrirt attorney may go beyond the allegations of the complaint, com-plaint, and uss anything shown by ths transcript of the evidence. If no transcript tran-script or the evidence la taksn st ths prs-llmlnary prs-llmlnary hearing, then under the California Califor-nia doctrine, which we have followed largely, than I will say I don't think the district attorney can go beyond the alienations alie-nations of the complaint The courts of especially the bode states sre In accord with the Cslifornla doctrine, that If there li a preliminary hearing and evidence Is brought out showing some other offense then that allsged In the complaint, and the defendant makes no oblectlon. then the district attorney la limited only hy the transcript of the evidence. In alleging hla nffenae. No Evidence of Crime. Mr. Ounter The court will observe It wss never ahown. Mr. Chrlttenson- I think this will show It. (Discussion and part of t ranac tipt read). Mr. Leatberwood I am satisfied. If the court rAease. that the question wsa not covered hv the evidence The Court The court will refuse to mske sn order directing s new Information Informa-tion to be filed upon this rscord. for the resson that the complaint Itself is defective defect-ive snd dees not form s legal foundation for Hie filing of any Inforsaatlon In the case. -It doea not state a public offense; and It appears that objection waa taken to the complaint before the magistrate, so that no rights on the part of the defendant de-fendant were there waived: and It does not form a legal foundation for the ruing of a valid Information. I Mr. Leatherwood I suppose, of course. 1 the court bases that on the ract It waa not cured hy the transcript of the evidence evi-dence tsken ft ths time. . The Court-There Is no evidence there whatever from which the district attor. nev or ths court could conclude thst nec-esSsrlly nec-esSsrlly s crime had heed committed. |