78 N.W. 988 | N.D. | 1899
Lead Opinion
The petitioner, while incarcerated in the state’s prison at Bismarck, appplied to this Court for the writ of habeas corpus, and the same was issued and made returnable before this Court at a term held at Fargo on March 28, 1899. Petitioner claims that his said imprisonment is unlawful. The facts upon which this claim is made are set forth in the petition, and the same are wholly uncontroverted. It appears that an information was filed in the District Court for the County of Cass, at the Novermber, 1897, term of that court, charging petitioner with the crime of rape. After a plea of not guilt}' the case was continued, and was not tried at said term, nor at the succeeding February term. A trial was'had, however, before said court, in the month of March, 1898, at which petitioner was found guilty by a jury, and subsequently sentenced by the Court to a term of imprisonment in the state’s prison, which term has not yet expired. The trial of petitioner was not had at any term of court fixed or prescribed by legislative enactment, but was had at a term of court called by special order of the District Court, which order was as follows: “Fargo, North Dakota, February 14, 1898. A special term of the District Court of Cass county, North Dakota, is hereby called and ordered to begin on the 1st day of March, 1898, at the Court House in the City of Fargo, North Dakota, in due compliance with law. The same to be a jury term, and will be held for the trial of all actions, civil and criminal, of which said court has jurisdiction.” Counsel for petitioner has not questioned the authority of the District Courts of this state to convene terms of court in addition to those expressly named by the statute; nor is the regularity of the call convening the term in question in any wise challenged. On the contrary, the sole contention of counsel is that the District Courts of this state are without authority to try an issue-of fact in a criminal case at such called or special terms, or at any term other than at the regular terms expressly named in the statute. It is not contended that any irregularities of procedure occurred at the trial which resulted in defendant’s conviction; nor is "it claimed that the defendant interposed any objection at any time at or before his said trial to being tried at said term of court. As we have said, his sole contention is that the District Court was and is without authority to try an issue of fact in a criminal action at any called term of the District Court. We shall
We notice, first, that it is elementary that at the common law courts of record were authorized to call terms of court for the trial of causes, and their right to do so in this state is expressly preserved by section 118 of the state Constitution, which is as follows: “Until the legislative assembly shall provide by law for fixing the terms of courts, the judges of the Supreme and District Courts shall fix the terms thereof.” Since the adoption of the Constitution the legislative assembly has proceeded to divide the state into judicial districts, and has established terms of court therein in the several counties, and fixed the times and places of holding such terms. See Pol. Code, Art. 6; Rev. Codes, § 402. • But in so doing, the legislature has not attempted to limit the primary and constitutional authority of these courts to call other or special terms of court, but, on the contrary, express provision has been made for doing so.' The lawmaker has declared as follows: “Nothing contained in Article 6 shall be construed to restrict the power of the court or any judge to call and convene other terms of court in any of said counties, and require the attendance of jurors at the same in the manner provided by law.” Rev. Codes, §411. This section clearly recognized the authority of District Courts in this state to convene terms of court in addition to terms expressly named and provided for by Article 6, supra, and such terms have been and are of-very frequent occurrence. The statute expressly authorizes the court to require the attendance of jurors at such terms, in manner and form as is done at regular terms of court, and not otherwise. Under these provisions of law we regard it as being entirely clear that the District Court, when convened at such called terms, and equipped' with a jury regularly drawn and summoned pursuant to law, is possessed of every power which it can lawfully exercise at any term of court. ■
This view, as has been seen, is not questioned by counsel as a general proposition ; but counsel insist that section 7755, Rev. Codes, embraces an express inhibition against the trial of issues of fact in criminal cases at a called term of the District Court. Counsel especially emphasizes the following language, contained in said section : “But issues of fact in all criminal actions and proceedings must be tried at a regular term of the court.” Counsel further cites, as supporting his contention, section 5x76, Rev. Codes, which in effect provides that issues of fact in both civil and criminal actions “must be tried in term time.” The provisions of the last section do not, in our opinion, strengthen the petitioner’s contention, in
We think the construction which we have given to these statutory provisions will give effect to the legislative purpose, and at the same time promote the prompt and economical administration of the law, by securing a speedy trial of persons accused of public offenses. Our conclusion is that the petitioner is not unlawfully restrained of his liberty by reason of being tried at a special term of the District Court. The writ is therefore discharged, and the petitioner is remanded to the custody of the warden of the state’s prison.
Concurrence Opinion
(concurring specially). I reach the same conclusion that is announced in the opinion prepared by Justice Wallin, but I prefer to base my judgment upon the point upon which that opinion declines to rule. I regard the trial of the. petitioner at a called term as an irregularity only, and a matter that does not reach the question of jurisdiction, and hence not available to the petitioner upon habeas corpus. The District Courts of this state are courts of general jurisdiction. They are clothed with full power to hear and determine all trails for felonies committed within their respective districts. I do not regard section 7755, quoted in the opinion of the majority, as effectual to destroy that jurisdiction. Rather, it created conditions the existence of which are essential to the exercise of that jurisdiction. But it has been often decided, and I regard it as a soimd principle of law, that, where the existence of certain conditions are essential to the exercise of jurisdiction, the existence of such conditions may be waived, and will be regarded as waived unless insisted upon, in all cases where the general jurisdiction over the subject-matter is unquestioned. See 12 Am. & Eng. Enc. Law, 300, and cases cited in note 5. The most that can be said in the case at bar is that the condition prescribed by statute authorizing the exercise of jurisdiction — to-wit, the existence of a regular term — was not present when the petitioner was placed upon trial. But he went to trial without objection, nor was the point at any time presented to the trial court. Clearly, he waived the absence of the only condition that was lacking to enable the court to proceed with his trial at that time. He cannot raise the point by habeas corpus, and he is properly remanded.
