54 N.W. 541 | N.D. | 1893
Magnus Peterson, the petitioner, was arrested upon a criminal warrant issued by a justice of the peace of Cass County, and was taken before such justice of the peace for a preliminary examination. The complaint upon which the warrant was issued was read to the petitioner, and, acting upon the advice of counsel, the petitioner waived an examination, and was committed for trial at -the next ensuing term^of the District Court for Cass County. The complaint was sworn to, and, omitting certain formal parts not criticised, is as follows: “State of North Dakota vs. Magnus Peterson, defendant. A. E. Jones, being by me first duly sworn, on oath complains and charges that the defendant, Magnus Peterson, at the said County of Cass, on the 15th day of. August, A. D. 189ft, with force and arms, did then and there commit the crime of obtaining property under false pretenses, as' follows, to-wit: That on the said 15th day of August, 1891, at the City of Fargo, in said County of Cass, the said Magnus Peterson, with intent to cheat and defraud Aultman, Miller & Co., and for the purpose of obtaining of it, the said Aultman, Miller & Co., property of the value of seventy dollars by means thereof, did falsely and feloniously represent and state to said Aultman, Miller & Co., that he, said Magnus Peterson, was then and there the owner of 80 acres of landpn the County of Clay and State of Minnesota free from all incumbrances, and of the value of $1,500, and also of personal property within said County of Clay and State of Minnesota of the value of $1,000, over all indebtedness and legal exemptions; that, by reason of said false and fraudulent representations, the said Aultman, Miller & Co., were induced to and did sell and deliver to said Magnus Peterson on said 15th day of August, 1891, 540 pounds of pure manilla twine, then and there the property of said Aultman, Miller & Co., and of the value of $70, against the peace and dignity of the State of North Dakota, and contrary to the form of the statute in such case made and provided, and prays that the said Magnus Peterson may be arrested and dealt with according to law.” No depositions or testimony other than said complaint was taken by the
It will be unnecessary, for the purpose of disposing of this case, to set out the information in detail. It is conceded that it is a valid and sufficient information; also, that certain averments of fact, which are essential in an information or indictment charging said offense, were embodied in the information, but'were ommitted from the complaint upon which the warrant of arrest was issued.
The petitioner, on being brought to trial on the information, pleaded in abatement thereto that “he had never had a preliminary examination for the crime or offense charged, nor waived the same, and that the crime charged was not committed during the session of the court, and that the petitioner was not a fugitive from justice.” The antecedent history of the case appeared of record as above narrated, and no issue of fact was litigated upon the issues raised by the plea in abatement. The District Court overruled the plea, holding that the petitioner, having waived a preliminary examination, was in a position which authorized the state’s attorney to file an information against him for the offense charged by such information, and that the offense set out in the complaint was the same offense, in substance, as that charged in the information. This ruling is assigned as error in this court.
The petitioner refused to plead either guilty or not guilty, whereupon the court directed a plea of not guilty to be entered in his behalf, and after a trial the prisoner was found guilty. A motion was made and overruled in arrest of judgment, and the petitioner was sentenced to a term of six months in the state’s prison at Bismarck. Exceptions were saved to the several rulings above mentioned. While in the Cass County jail under said sentence the petitioner, was awarded the writ of habeas corpus, directed to the sheriff of Cass County, and upon the return of
Upon the facts appearing of record, only one question arises upon the merits. It is this: In waiving a preliminary examination before the magistrate, did the petitioner, within the meaning of the statute, waive an examination for the crime or offense charged in the information lodged against him by the state’s attorney? We think he did. Section 8, Ch. 71, Laws 1890, provides, with certain exceptions, not necessary to notice in this case, that “no information shall be filed against any person for any crime or offense until such person shall have had a preliminary examination therefor, as provided by law, before a committing magistrate or other officer having authority to make preliminary examinations, unless such person shall waive his right to such examination,” etc. The manifest purpose of this provision of the statute is, with the exceptions specified in the statute, to prohibit the state’s attorney from filing an information in the District Court charging any person with a public offense until the person accused has first had or waived a preliminary examination before an examining magistrate upon a complaint charging the offense set out in the information filed in the District Court. The grand jury being abolished, this statute was enacted to furnish the citizen with a substantial safeguard against hasty and ill advised prosecutions for grave public offenses. Without this statute, or one of similar import, the grand jury no longer existing, a citizen would be required to stand his trial for a felony on the mere accusation of one person, viz: the state’s attorney. It was to prevent such a state of things that the statute above quoted was enacted, and it should therefore be upheld, and not be frittered away by judicial construction. Was the petitioner denied any right secured to him by the statute? He exercised his privilege, and waived an examination, which was tendered to him. In so doing did he waive an examination, within the meaning of the statute? In other words, was the examination tendered him by the proceedings in justice’s court such as is “provided bylaw?” The prisoner’s counsel has suggested but one reason why the preliminary
Counsel for petitioner cites White v. State, (Neb.) 44 N. W. Rep. 443. The case is good law, but is not in point here. In that case the complaint on which White was arrested did not in any manner set out any criminal charge against the accused, and the Supreme Court held that the District Court was therefore without authority to put the accused on his trial upon an information filed by the states attorney. As has been seen, we fully concur in that construction of the statute, and Nebraska statute being identical with ours. Counsel also cites the following cases: People v. Chapman, (Mich.) 28 N. W. Rep. 896; State v. Braithwaite, (Idaho,) 27 Pac. Rep. 731; People v. Wallace, (Cal.) 29 Pac. Rep. 950; People v. Parker, (Cal.) 27 Pac. Rep. 537. Some of the cases last
One point further, a decisive one, remains to be considered. We hold that the petitioner has mistaken his remedy. The writ of habeas corpus will not lie in behalf of a prisoner confined in execution upon a criminal judgment as a means of reviewing errors of procedure occurring upon the trial. Such errors can be reviewed in this state only by the writ of error. This doctrine has long since passed beyond the domain of debate, and is reckoned among the fundamentals of the law of procedure. See petition of Semler, 41 Wis. 518; Elsner v. Shirgley, (Iowa,) 45 N. W. Rep. 393; in re Ellis, (Mich.) 44 N. W. Rep 616; ex parte Ah Sam, (Cal.) 24 Pac. Rep. 276; ex parte Siebold, 100 U. S. 375; Wood v. Brush, 11 Sup. Ct. Rep. 738; in re Thompson, (Mont.) 23 Pac. Rep. 933; ex parte Max, 44 Cal. 579.
It is quite clear that the question whether a prisoner accused of a crime by information filed in the District Court has had or waived a preliminary examination for the same mime is a question of procedure, pure and simple. The point presented for decision may involve questions of fact alone, or of law alone, or of both law and fact. From nature of the question, it can only arise upon the trial of the action, and it must be presented to a court which has full authority to decide the question in common with all questions arising at the trial. The question in this case arose at
The question of practice presented by the record is decisive against the prayer of the petitioner, but we have deemed the case to be one of unusual practical importance, considered with reference to the prosecution of offenders by information, and as the questions involved have never before been presented to this court, we have conceived it to be important to pass upon the merits as well as upon the practice question. The writ is discharged, and the prisoner remanded.