State v. Allesi

211 N.W.2d 733, 1973 N.D. LEXIS 120

• Court: North Dakota Supreme Court
• Decided: October 23, 1973
• Docket: Cr. 456
• Status: Published

Opinions

ERICKSTAD, Chief Justice.

This is an appeal by the Plaintiff, State of North Dakota, from an order of the District Court for the First Judicial District, which dismissed the charges and discharged the Defendant, Mario J. Allesi.

Mr. Allesi was charged with delivering the controlled substance methamphetamine in violation of Section 19-03.1-09, N.D.C.C.

At the close of the State’s case, Mr. Al-lesi made a motion for an advised verdict of acquittal on the grounds that the State failed in its burden of proof and failed to prove a prima facie case. Instead of acting on the specific motion the court dismissed the case, saying in effect that the State failed to prove: (1) the quantity of methamphetamine in the drugs sold, (2) that methamphetamine has a potential for abuse, and (3) that methamphetamine is a stimulant to the central nervous system.

The State appealed and Mr. Allesi moved for an order dismissing the appeal pursuant to Rule 27(a) of the North Dakota Rules of Appellate Procedure on the grounds that the State is without statutory or constitutional authority to perfect an appeal to the supreme court under the circumstances of this case and that, therefore, the supreme court has no jurisdiction.

The issue presented by this motion is whether the State may appeal to this court from an order of the district court, made at the close of the State’s case, dismissing the information.

In dismissing the case the trial court erred. If the court believed the evidence to be insufficient to convict the defendant, it should have advised the jury to acquit the defendant, thereby leaving the ultimate decision to the jury. See State v. Gill, 154 N.W.2d 791 at 799 (N.D.1967).

Pertinent is the following:

“29-21-37. Court may advise jury to acquit. — If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant, but the jurors are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.” N.D.C.C.

What is the effect of this error on the part of the court?

Mr. Allesi concedes that the court erred, but contends that the error is immaterial. His view is that appeal is purely statutory and that our law does not provide for an appeal in a case such as this. He refers us to Section 29-28-07, N.D.C.C.

“29-28-07. From what the state may appeal. — An appeal may be taken by the state from:

“1. An order quashing an information or indictment or any count thereof;

“2. An order granting a new trial;

“3. An order arresting judgment; or

“4. An order made after judgment affecting any substantial right of the state.”

N.D.C.C.

It is his view that State v. Bauer, 153 N.W.2d 895 (N.D.1967), supports his contention that unless his case comes within one of the four subsections of Section 29-28-07, N.D.C.C., it is not appealable. He does not believe that this case comes within any of those subsections.

In Bauer the defendant was charged through a complaint in justice court with the offense of failing to give immediate notice of an accident. Upon his conviction, he appealed to the district court, at which time the State’s Attorney requested and received permission to file a criminal information, which information alleged the facts in the language of the complaint. When the defendant’s attorney moved to quash the information, the district court granted ,the motion, and the State appealed. In dismissing the appeal to this court, Chief Justice Teigen, speaking for the court, said:

“Thus it is clear that the trial anew in the district court, on an appeal from the judgment entered by the county justice in a criminal action, does not contemplate that an information be filed but that trial shall be had upon the complaint filed in the county justice’s court. A public offense, where a trial may be had in justice, police, or county court, is excepted from the statute requiring prosecution by information or indictment. Section 29-01-01, N.D.C.C.

“For these reasons, we will consider the order entered by the district court as one dismissing the complaint as contemplated by Section 33-12-40, N.D.C.C.

“A motion to quash is made applicable by statute only to an information or an indictment. Section 29-14-01, N.D.C.C. It is not made applicable to a complaint.” State v. Bauer, 153 N.W.2d 895, 896 (N.D.1967).

Bauer is obviously distinguishable on its facts from the instant case in that in Batter an offense prosecutable by a complaint was involved rather than an offense prosecutable by an information. The statute providing for an appeal covers cases prosecutable by information rather than by complaint. In the instant case we have involved an offense prosecutable by information.

Although the State in the instant case asserts that this appeal comes within Subsection 4, we think it more properly comes within Subsection 1. In dismissing the case, the court in effect quashed the information.

Having concluded that the order is in’effect an order quashing the information, the order is appealable under Subsection 1 of Section 29-28-07, N.D.C.C.

Whether upon a successful appeal by the State and a remand of the case for a new trial the defendant may successfully assert that he was then placed twice in jeopardy in violation of the Fifth Amendment to the United States Constitution, we need not determine at this time. This issue can be more carefully considered if and when it is raised and properly briefed.

For the reasons stated in this opinion, Mr. Allesi’s motion for a dismissal of his appeal is denied.

KNUDSON, PAULSON and VOGEL, JJ., concur.