121 N.W. 614 | N.D. | 1909
Appellant was convicted of the crime of assault with a dangerous weapon. He assigns numerous errors but we will notice those only which are discussed in the brief.
The first assignment challenges the rulings of the trial court in overruling his objections to the jurisdiction of that court; the point of such objections being that the Honorable A. G. Burr, who presided at such trial, was not even a de facto judge of such -court, and hence all his acts are nullities. Appellant’s brief is almost entirely devoted to this assignment in an attempt to -convince us th-at the decision of this court in State v. Ely, 16 N. D. 569, 113 N. W. 711, 14 L. R. A. (N. S.) 638, involving the same questions was erroneous. Such contention deserves but brief notice, as the same is wholly devoid of merit. We -entertain no doubt as to the correctness of the decision in State v. Ely, notwithstanding the decisions of some courts to the contrary. But, aside from this, a conclusive answer to appellant’s contention is the fact that he cannot raise such question in the manner attempted. -Counsel are evidently laboring under an erroneous. view of the law. By the objections they sought to raise the question of Judge Burr’s authority to preside. They sought to question his official character as judge. This they could not do for the obvious reason, among others, that Judge Burr had no jurisdiction to pass on his own qualifications. Whether in fact -o-r in law 'he was judge of the district court he could not determine. Moreover, it would, indeed, be a strange rule of law that would permit every
The next assignment challenges the sufficiency of the information on the ground that it was presented in the name and by the authority of the “state,” instead of in the name and by the authority of the “State -of North Dakota,” as required by section 97, art. 1, of the state constitution. This objection is hypercritical. It clearly and unmistakably appears from the information that the prosecution was carried on in the name and by the authority of the state of North Dakota. The title, as well as other parts of the information, discloses such to be true. State v. Kerr, 3 N. D. 523, 58 N. W. 27, directly sustains such an information as against the same kind of an attack.
It is next contended that the crime of which appellant was convicted is not embraced within the crime charged in the information. State v. Mattison, 13 N. D. 391, 100 N. W. 1091, and State v. Cruikshank, 13 N. D. 337, 100 N. W. 697, are relied on in support of such contention. If the verdict was as the printed abstract gives it, we would be required to sustain this contention under the prior decisions of this court above mentioned. But an examination of the original record on file discloses that a very material portion of the