75 N.W. 779 | N.D. | 1898
This record discloses that the defendant was convicted of the crime of grand larceny, and from the judgment of conviction the defendant has appealed to this court. The single point of error assigned in this court by the defendant rests upon the following facts: The defendant was arrested on a criminal warrant charging him with the commission of said offense, and was brought by the officer who made the arrest before Grant S. Hager, Esq., a justice of the peace of said county, who issued the warrant. As to what occurred in the Justice’s Court, the entries in the docket of the justice will best disclose. Said entries are as follows: “On the 27th day of November, 1897, at 3 o’clock p. m. the defendant, Ira Weltner, being present in court, in custody of James A. Little, said deputy sheriff, I fully advised said defendant of the aforesaid accusation, by reading said complaint to
In this court, defendant contends that the trial court erred in overruling defendant’s motion to quash the information. In our judgment, this contention is valid, and must be sustained. The statute expressly authorizes a defendant, upon being arraigned upon an information, to raise the point made here by a motion to
A matter of practice remains to be considered. The statement of the case, as settled by the court below, is certified in this court by the Clerk of the District Court, but is not authenticated by the trial judge’s certificate'of identification of papers, as required by rule 9 of the rules of this court. Nor does the statement embody specifications of error, as required by rule 10. A motion based on these alleged defects in the record was made, in behalf of the state, to strike out the statement and affirm the judgment;. This motion must be denied. Rule 9, by its terms, relates only to civil actions and special proceedings. Rule 10, in so far as it relates to specifications in a statement of errors of law and of fact, voices the provisions of the statute governing the preparation of a statement of the case in civil cases only. Without regard to such rule, a statement in a civil case would be radically defective, under the statute, if it embraced no specifications of error. It is true that rule 10 cites, among others, section 8268 of the Revised Codes, which section, together with sections 8258, 8264, 8265, 8266, and 8267, regulates and defines a statement of the case in criminal actions. But the statutes governing in criminal cases do not anywhere, in terms, require a statement of the case to contain specifications of error, and hence a reference in the rule to section 8268 cannot be construed as a requirement on the part of this court that specifications must form a part of a statement in a criminal case. Such a construction of the rule is not warranted by its language, and would amount to superadding a requirement not contemplated by the legislature in a criminal case. We think this should not be done. It follows that in a
The motion to affirm is denied, and the judgment is reversed.