162 N.W. 358 | N.D. | 1917
Lead Opinion
The defendant was convicted in the district court ■of Ward county of the crime of keeping and maintaining a common nuisance, as a second offense, contrary to the provisions of the so-called Prohibition Law. This appeal is taken from the judgment of conviction.
The material facts are as follows: On November 30th, 1915, a criminal complaint was filed before a justice of the peace in Ward county,
The defendant was given- a preliminary’ examination before the justice of the peace on December 3d, 1915, and bound over to the district court. On the same day, to wit, December 3d, 1915, the state’s attorney filed an information in the district court of Ward county,charging that “on or about the 6th day of November, 1915, at and within the county of Ward, in the state of North Dakota, one Oser W. Webb, late of the county of Ward, and'state aforesaid, did commit the crime of keeping and maintaining a common nuisance, as a second offense, committed as follows, to wit: That at said time and place and on divers days and times between the 1st day of July, 1914, and the 2d day of December, 1915, the said Oser W. Webb did wilfully, unlawfully, and feloniously keep and maintain a certain place situated in the county of Ward, state of North Dakota, in which intoxicating liquors were then and there sold, bartered, and given away as a beverage to John Mohagen, and divers other parties to said state’s attorney unknown, in violation of law, and in which said place said John Mohagen, and divers other persons to said state’s attorney unknown, were then and
This contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of North Dakota.”
Thereafter, on December 4, 1915, on being'arraigned, the defendant filed a motion to set aside the information upon the ground that he had never had or waived a preliminary examination; that the complaint filed before the justice of the peace charged the defendant with the commission of the crime of keeping and maintaining a common nuisance on November 6, 1915, and that evidence was introduced upon such preliminary examination of an offense committed between the 26th day of September, 1915, and the 6th day of November, 1915; and that the information filed herein charges the commission of the offense as having taken place between July 1st, 1914, and the 2d day of December, 1915, and that there is approximately a year charged in the information that was not charged in the complaint, and that for all the time not charged in the complaint the defendant has not had a preliminary hearing.
The defendant also moved for a new trial and in arrest of judgment upon the same grounds.
The only errors assigned or argued on this appeal are predicated upon the court’s rulings in denying these several motions. Defendant stands squarely and solely on the proposition that the criminal information included a greater period of time than that included in the criminal
In his brief, defendant says: “The only contention of appellant'is that he has had no preliminary examination before a magistrate as to any public offense charged in the information having been committed since and subsequent to the 6th day of November, 1915.”
We are unable to agree with appellant’s contention. Time is not a material ingredient of the offense of keeping and maintaining a common nuisance, and need not be proved strictly as laid. See Comp. Laws 1913, § 10,690. See also Black, Intoxicating Liquors, §§ 459, 460, 512: Joyce, Intoxicating Liquors, §§ 658, 677. And it is sufficient to ■show that the illegal acts charged were done at any. time before the filing of the information, and within the period prescribed by the Statute of Limitations. Black, Intoxicating Liquors, § 677.
The prosecution, therefore, was not restricted in its proof to the date alleged in the criminal complaint, but upon the preliminary examination it might introduce evidence tending to show the commission of the offense charged at any time prior thereto, and within the period ■of limitations. Nor was the state restricted by reason of the evidence introduced at the preliminary examination. The state is not required to introduce all of its evidence upon the preliminary examination, nor is it required to inroduce upon the trial the same, or any of the evidence adduced upon the preliminary examination.
The defendant cites and relies upon the decision of this court in State v. Winbauer, 21 N. D. 161, 129 N. W. 97. The opinion in that ■case does not, however, support defendant’s contention. In that case a preliminary examination was held on January 12, 1910. A criminal information filed on May 5, 1910, charged the defendant with maintaining a common nuisance up to and including May 2, 1910, “without any preliminary examination having been had as to the period between January 12, 1910, and May 2, 1910, inclusive.” Consequently, there was a period of time charged in the information from January 12, 1910, to May 2, 1910, inclusive, subsequent to the time when the preliminary examination was had. And this court held that for the period of time so charged no preliminary examination had been had. In the case at bar, the preliminary examination was held on December 3, 1915, and the information charged the offense as having been com
Defendant’s contention is untenable for another reason. A preliminary examination is not required for a public offense “committed .during the continuance of the term of the district court in and for the county or judicial subdivision in which the offense is committed or triable.” Comp. Laws 1913, § 10,628. Under the statute (Comp. Laws 1913, § 754) a term of the district court was appointed to be held in Ward county commencing on the second Monday in November; viz., November 8,1915. The original information herein, filed on December 3, 1915, shows that it was filed by order of the court during a term of said court; and the clerk’s minutes of the trial, certified to this court as part of the record on this appeal, show that the proceedings had on December 4th, 1915, when defendant was arraigned and moved to set aside the information, were had at and during an adjourned session of the regular November, 1915, term of said court. The criminal complaint herein was filed on November 30, 1915. The complaint was therefore filed during the continuance of the regular November, 1915, term of the district court. In fact, the entire period from November 8, 1915, to the date of the filing of the information, was during the continuance of such term. The evidence in the case is not before us. There is, however, a stipulation in the record to the effect “that at the trial of the above case wherein said defendant was convicted, no testimony was introduced tending to show the sale of liquors of any kind or character during the session of the district court of Ward county, North Dakota, at which- information was filed against defendant, and during which
It is contended, however, by a dissenting member of this court (Mr.. Justice Robinson), that the information herein is fatally defective and' fails to state facts sufficient to constitute a public offense, for two reasons :
1. That it appears therefrom that the former conviction was had on February 28th, 1908, and that consequently the first offense must have-been committed more than seven years prior to the filing of the information.
2. That the information does not charge that defendant committed' the first offense, or that the former conviction was for a violation of the-Prohibition Law.
It is only fair to appellant’s counsel to state that these questions were-not raised or argued by them, but are raised for the first time in this-court by Mr. Justice Robinson.
The objection that the facts stated in the complaint do not constitute-a crime is not waived by a failure to demur and may be raised under a plea of not guilty, and in arrest of judgment. Comp-. Laws 1913, § 10,745. And the better rule seems to be that this objection may' be raised at any stage of the proceedings and asserted even for the first time on appeal. 12 Oyc. 811, 812. This is true, however, only where-the defects are not amendable and the information on its face negatives, rather.than affirms, the commission of an offense. It does not apply to* a mere formal defect which may be cured by amendment. Such defect must ¡be taken advantage of at the trial, and cannot be urged for the-first time on appeal. 12 Cye. 811.
We are agreed that the objections raised by Mr. Justice Robinson are untenable. But in view of the fact that he deems them of sufficient: importance not only to raise them, but to discuss them in a dissenting-opinion, we deem it desirable to refer to them at greater length.
A sufficient answer to the first point raised hy Mr. Justice Robinson is that the statute does not provide that the first offense must be committed, or the former conviction had, within any specific period prior to the filing of the information for the second offense. The former conviction is not a part or ingredient of the offense charged, but is a.
The courts have uniformly held that the fact that the accused -was pardoned does not exempt him from the increased punishment on a subsequent conviction. 12 Cyc. 950. Nor does the fact that the prior conviction was erroneous on account of departure from the established rules of procedure prevent the operation of the statute as to a subsequent conviction, unless the former conviction was set aside, or the court in which the prior conviction was obtained had no jurisdiction. Ibid.
Under our statute no time is prescribed as to the former conviction. The only requirement is that the second offense must have been committed after the conviction as well as after the commission of the first offense. Ibid.
' To hold that the prior conviction must have been had- within a certain period of time prior to the commission of the second offense or the commencement of a criminal prosecution therefor, would constitute judicial legislation of the most extraordinary kind, and engraft upon the laws of this state by judicial fiat a provision never intended to be placed there by the lawmaking body.
The second point raised seems to be fully answered by positive legislative enactments, as well as by prior decisions of this court.
A criminal information in this state is sufficient if it contains:
1. “The title of the action, specifying the name of the court to which the information or 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.” Comp. Laws 1913, § 10,685.
And “no information ... is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” Comp. Laws 1913, § 10,694. And it is the duty of this court, after hearing an appeal in a criminal case, to “give judgment without regard to technical errors or defects” which do not affect the substantial rights of the parties. Comp. Laws 1913, § 11,013. .
In considering the sufficiency of the allegation of a former conviction for a similar offense in State v. Bloomdale, supra, this court, speaking through Chief Justice Morgan, said: “The allegation set forth above is specific as to the date, court, and county that the defendant was tried and sentenced in under the former conviction. There are many Authorities holding this to be sufficient. In other words, it is held that if the information specifically points out where a record of the former conviction may be found, that it is sufficient. So far as these matters are concerned, the allegations of the information do not leave the defendant in doubt or uncertainty. In this state it has been held that allegations in An information in regard to former convictions of the same or similar offenses need not describe the facts in regard to the former conviction with the same particularity as is necessary in a description of matters pertaining to the elements of the crime. It is held that, if the information briefly describes such former conviction, it is sufficient In other words, it has been held that the matter of a former conviction is not any part or ingredient of the offense charged, but that it is a matter which pertains only to matters as to additional punishment. State v. Rozum, 8 N. D. 548, 80 N. W. 477; State v. Markuson, 7 N. D. 155, 73 N. W. 82.
“There is another reason, however, for holding that the information in this case alleges a former conviction of the offense charged in the information. It contains other words which we think may be referred to in determining the character of the offense of which the defendant was formerly convicted. The words, ‘second offense,’ which follow the allegations in the information stating that the defendant did commit the crime of keeping and maintaining a common nuisance, clearly shew*245 •what the former offense was, although in the most brief language. It is a direct statement that the defendant was charged with keeping and maintaining a common nuisance in the former conviction. These words, together with the allegations setting forth the time and place of the former conviction, are sufficient to apprise the defendant of the offense that he was formerly charged with. . . . The objection to the sufficiency of the information on this ground is not, therefore, tenable for two reasons. The time and place of the conviction were stated. This enabled the defendant to ascertain the crime which the state claimed that he was formerly convicted of. Further, the former conviction was charged in language that apprised the defendant that the former conviction was for the offense of keeping and maintaining a common nuisance by keeping and selling intoxicating liquors.”
The above-quoted language is directly applicable to the instant case. And when all the allegations of the information are construed together, defendant could not have been misled as to the nature of the offense which the information charged he had been formerly convicted of. In fact, defendant has never made such claim. On the contrary, upon the trial he admitted the former conviction as alleged, and thereby eliminated such question from the jury’s consideration. The only question submitted to the jury, therefore, was whether defendant had kept and maintained the second common nuisance charged in the information. No one questions the sufficiency of the charge contained in the information as to the second offense, or the sufficiency of the evidence to sustain the verdict of the jury. The prior conviction was not a material ingredient of the offense with which defendant was charged and which the jury said he had committed. The former conviction was only a matter which the legislature has said shall determine the degree of punishment. The defendant and his counsel apparently had no difficulty in understanding the language contained in the information, or the nature of the offense which the information charged he had been, formerly convicted of. There is no claim that the defendant was; surprised by the introduction of evidence, or that the evidence failed to establish his guilt. By his conduct the defendant has shown in the most emphatic manner that the information did inform him of the illegal acts with the commission of which he was charged.
A criminal trial is not a game of wits between opposing counsel,
In the case at bar it is undisputed that the facts were fully and fairly submitted to a jury, and that the jury found defendant guilty. It is not contended that this finding is erroneous or unjust. We find nothing to indicate that defendant has been deprived of any substantial right. The judgment appealed from must therefore be affirmed. It is so ordered.
Dissenting Opinion
(dissenting). This case arises under the common nuisance section of the Prohibition Statute. The appeal is from a judgment that the defendant be imprisoned for two years in the state’s prison. The majority opinion sustains the judgment, which I consider manifestly wrong. In writing this dissenting opinion, I do solemnly thank God that my love for right and justice is far above any regard for my office. I am in no way dependent on the office and I have little regard for it, only so far as it presents an opportunity to sustain the right and to denounce the wrong. This I say, because in writing this opinion I am sure to give offense to a large class of zealous and well-
In the summer of 1912, when I was a candidate for the office of :supreme court judge, the commander or president of these good people presented for my signature a written pledge in regard to my decisions under the Prohibition Statute in case of my election. Of course I did not sign it; and, of course, I was not elected. That and some drastic ■decisions by this court suggest the thought that some judges may have secured and held onto office by signing such a pledge. The majority ■decision cites some early decisions which stand as a reflection on this court. In the Markuson Case from Valley City, it was held competent for a district judge on a common nuisance charge to convict a man in a summary manner, without a trial by jury, and to sentence him to a term in the state’s prison. It is hard for a lawyer to see how such a decision was made, only as the result of a pull which acted like the force of gravity. It is true the nuisance was named a contempt, and by that name it was held competent to evade the Constitution, which- guarantees to every person accused of crime the right of trial by jury. Hence, as we pray the Lord to lead us not into temptation, so may we pray that our judges be not led into temptation by any pledge or any ■influence or by the thought of re-election.- Indeed, it were well if- the ■Constitution or custom were so as to remove all such temptations. I am free to allow that our present judges are all like Csesar’s wife, above suspicion, and that they innocently signed the decision without a thought ■of its political effect. However, it would have looked better if the'appeal had been decided when it was argued, early in January, and when we all appeared to agree that the conviction of the defendant was erroneous. Certain it is, there was no judge to say a word to the contrary, and there was no good reason for not deciding the case when it was fresh in the mind of all the judges. >
The defendant was convicted of a second common nuisance under the Prohibition Statute. His sentence is two years in the state’s prison. The conviction is void because it is based on a complaint or information which is fatally defective. A valid complaint for a second offense must state facts showing the commission of a first offense, because without a first offense there cannot be a second offense, and it must show that each offense was committed within three years, because after the-
So far as it concerns the first offense, the information is in these words: “That on or about the 8th day of February, 1908, the said defendant was arraigned in the district court of "Williams county, North Dakota, charged with the crime of keeping and maintaining a common nuisance in the county of Williams in the state of North Dakota; that the said action was brought on for trial and a verdict of guilty returned by the jury on or about the 28th day of February, 1908, and the said defendant was sentenced by the court on or about the 28th day of February, 1908, and rendered himself in execution of said sentence, and that the said sentence has not been modified, vacated, or set aside.” The trial was in Ward county, and the alleged conviction for a first offense was in Williams county, eight years prior to the trial in Ward county, and we have no record of the alleged first conviction. There is no charge or attempt to charge that the defendant did commit a first offense of any description. The charge is merely that in 1908 he was convicted of the crime of maintaining a common nuisance. It does not show that the nuisance or conviction had any relation to the Prohibition Law. For aught that appears from the information, the first common nuisance may have been the obstruction of a highway, for which a person may be prosecuted and punished. Under the Constitution no person can be prosecuted for a public offense, except on an information or indictment, which must state the facts constituting the offense. The allegations of an information or indictment must be direct and certain in regard to the offense charged. Comp. Laws 1913, § 10,686. The objection that the facts do not constitute a public offense may be taken on motion or in arrest of judgment (§ 10,745), and for this reason counsel for defendant made such a motion. In charging the commission of a second offense it is necessary to state the facts showing the commission of a first offense and also to state, in a general way, that the accused was-duly convicted of the first offense. Under the statute it is not, necessary to set forth the record of the conviction, as it was at common law, and for that reason the judges rush to the conclusion that it is npt necessary to state the facts showing a first offense. The con
And there is no reason for giving a drastic construction to a drastic statute to sustain a drastic sentence of a poor human being. The majority opinion concludes by saying the facts were fully and fairly submitted to a jury. That is a gross error, or a mere assumption, and it is not warranted by anything in the record. And, indeed, the conviction is under a drastic statute which does not accord with the limitations of the prohibition section of the Constitution. In that section the word “suitable” is used as a limiting adjective before the word “penalties.” The word is used for some purpose. It means that the penalties of the statute must be reasonable, just, and humane, and not drastic, cruel, or vindictive.
I regret that Mr. Justice Bobinson has used language in his dissenting opinion from which it is made to appear that the majority of the court formerly concurred in his views as to the law and that they are responsible for delaying the decision. The facts are that the members of this court never concurred in the views expressed by Mr. Justice Bobinson and that they all signed the majority opinion soon after it was written, more than a month ago. The majority opinion was not filed earlier owing to the practice which prevails in this court of giving every member an opportunity to file his views before a case shall be regarded as decided. Mr. Justice Bobinson has, very properly, been the recipient of this courtesy in this instance, and though the majority opinion has been in his hands since it was first written, his dissenting views have just been prepared for filing.
I am authorized to say that this statement is made on behalf of all the members of this court, with the obvious exception of Mr. Justice Bobinson.