State v. Pandolfo

98 N.W.2d 161, 1959 N.D. LEXIS 101

• Court: North Dakota Supreme Court
• Decided: August 31, 1959
• Docket: Cr. 292
• Status: Published

Opinions

MORRIS, Judge.

This is a criminal action. The defendant was found guilty by a jury of knowingly subscribing to or making or causing to be made material false statements and representations in the application of Universal Securities, Inc. to the Commissioner of Securities of the State of North Dakota for registration as a dealer under the provisions of Section 10-0410 and Subsection 1, Section 10-0415 1957 Supplement to NDRC 1943. The first section above mentioned requires dealers or salesmen, as a prerequisite to the sale of securities by them, to be registered with the Commissioner. The application for registration must contain certain specified information, including:

“Whether applicant or any officer, director, partner, member, trustee, or manager of the applicant, has ever been convicted of a felony or any misdemeanor of which fraud is an essential element, and, if so, all pertinent information with respect to any such conviction.”

The defendant executed an application in behalf of Universal Securities, Inc. That application contained this query and answer:

“11. Has applicant or any officer, director, partner, member, trustee or manager of the applicant ever been convicted of a felony or any misdemeanor of which fraud is an essential element? Yes. If so, attach a rider marked ‘Item 11’ giving all pertinent information with respect to any such conviction.”

The defendant caused to be attached to the application a sheet as an exhibit bearing this statement:

“Number 11 — of Application for Registration as Dealer Under Section 10 of the Securities Act of 1951

“Sam Parker Pandolfo

“In 1937 he represented the Tri Base of Montana Refining Co. and was selling lubricating oil to dealers and individuals under a remarketing pooling agreement. He made sales in various states and the sales agreement was construed as a security by the U. S. Securities and Exchange Commission of Seattle in as much as it called for future delivery of merchandise. He was indicted and he plead guilty along with six other salesmen. He was sentenced to six months in a Road Camp for failure to register under the SEC Act. He was not a principal officer or organizer of the company and was merely a salesman on a commission basis selling lubricating oil. Fraud was not an essential element in this matter, but applicant wishes to disclose all facts to the commissioner. S.P.P.”

The crime charged is a misdemeanor. A judgment of conviction was entered pursuant to the verdict of the jury and the defendant sentenced to pay a fine of $500. The defendant made a motion for a new trial which was denied. He has appealed from both the judgment and the order denying his motion.

The defendant has specified as error on this appeal the denial of his motion for new trial and various alleged errors which he assigned in connection with that motion. The first error claimed is that the court refused to try the case without a jury and proceeded to try it to a jury after both the prosecution and defendant had waived a jury trial and the defendant asked that the case be tried to the court.

In Article I, Section 7 of the North Dakota Constitution we find that:

“The right of trial by jury shall be secured to all, and remain inviolate

Section 29-1602 NDRC 1943 provides that:

“In any case, whether a misdemeanor or felony, a trial jury may be waived by the consent of the defendant and the state’s attorney expressed in open court and entered on the minutes of the court. Otherwise, the issues of fact must be tried by the jury.”

This court has said:

“The constitutional provision, preserving the right of trial by jury is a guaranty to the accused of a trial by a constitutional jury which the accused may affirmatively waive by the consent of the state’s counsel and the sanction of the court.” In re Kortgaard, 66 N.D. 555, 267 N.W. 438, 439, 105 A.L.R. 1107.

The defendant contends that in addition to the privilege of waiving a jury, Section 29-1602 NDRC 1943 inferentially at least gives him the right to be tried by the court which is a valuable right that cannot be taken from him by the court.

In some states where statutes specifically so provide a defendant is afforded the right to elect whether he will be tried by the court or by a jury. In People v. Steele, 94 Mich. 437, 54 N.W. 171, the court said:

“The sole question is whether the respondent possessed the right, under our statutes, to choose the mode of trial. The statute provides that, if no jury be demanded by the accused, the court shall proceed to try the issue. * * * The statute clearly gives the accused his choice of the two modes. This is a substantial right, and we do not think that the court can deprive him of it.”

In People v. Martin, 256 Mich. 33, 239 N.W. 341, it was held reversible error to deny the defendant a trial without a jury where the applicable statute gave him the right to elect to be tried before the court without a jury.

In Mickens v. Commonwealth, 178 Va. 273, 16 S.E.2d 641, it was held that the language of the constitution providing that in case of waiver of a jury trial the court shall try the case is mandatory.

In People v. Spegal, 5 Ill.2d 211, 125 N.E.2d 468, 471, 51 A.L.R.2d 1337, the defendant pleaded not guilty to a charge of murder. The defendant waived a jury and twice made motions to be tried by the court without a jury which were denied although the prosecution interposed no objections. It was held that the trial 'court erred in denying the motions in view of the 1941 amendment to the criminal code of the State of Illinois, Ill.Rev.Stat.1953, c. 38, § 736, which provided that:

“ ‘in any case where the defendant pleads guilty or waives a jury, the cause shall be heard and determined by the court without a jury,’ ”

All of the foregoing cases appear to be based upon some constitutional or statutory provision which in addition to permitting the defendant to waive a jury directs the court to try the case without a jury.

Grady v. State, 117 Tex.Cr.R. 115, 35 S.W.2d 158, is the only case we have found holding, in the absence of a statutory or constitutional provision specifically making it the duty of the court to try a criminal case upon waiver of a jury by the defendant, that it is error for the court to submit the case to a jury after the defendant has pleaded not guilty and waived a jury.

In 31 Am.Jur., Jury, Sec. 52 appears a discussion of the necessity of the consent of the prosecution to an effective waiver of a jury trial by the defendant, following which it is said:

“There are, however, decisions holding a waiver by the defendant of the right to jury trial to be binding upon the state and the court, but it seems that such decisions for the most part have involved the interpretation of specific statutes.”

In 50 C.J.S. Juries § 111, it is said:

“In the absence of constitutional or statutory inhibition, the waiver of a jury trial in a criminal prosecution does not prevent the court from submitting the case to a jury, especially where the prosecution fails or refuses to consent to a trial by the court. Where, however, the constitution or statutes require that accused on waiving a jury trial shall be tried by the court alone, the court may not submit the case to a jury.”

This court has repeatedly defined waiver as “the voluntary and intentional relinquishment or abandonment of a known existing right, advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed.” Meyer v. National Fire Insurance Co., 67 N.D. 77, 269 N.W. 845; Sjoberg v. State Automobile Insurance Ass’n, 78 N.D. 179, 48 N.W.; Kessler v. Thompson, N.D., 75 N.W.2d 172. While the above citations are to civil cases substantially the same definition is applicable to a waiver by defendant in a criminal action. See Wharton’s Criminal Law and Procedure, Anderson, Sec. 1951. The waiver of a right is its intentional relinquishment and does not ordinarily imply the acquisition of a substitute or reciprocal right and in the absence of a statute indicating that such a further right is acquired the effect of a waiver is relinquishment and not substitution. A constitutional or statutory provision giving a defendant the privilege of waiving trial by judy does not imply that by such waiver he becomes entitled as a matter of right to another mode of trial.

People v. Scornavache, 347 Ill. 403, 179 N.E. 909, 914, 79 A.L.R. 553, was decided prior to the enactment of the 1941 amendment to the Illinois Criminal Code noted in our discussion of People v. Spegal, supra. In the Scornavache case the court said:

“The right to a jury trial is not the right to be tried without a jury. The waiver of the accused is, as the term indicates, a relinquishment of the right, and is, in effect, a declaration that he is willing that the court try the issue of fact. From what has been said it must be apparent that, in the absence of constitutional or statutory inhibition, the court has the power, and upon objection by the people it is its duty, to submit the issues of fact in a criminal case to a jury, notwithstanding a waiver of jury trial by the accused.”

In People v. Eubanks, 7 Cal.App.2d 588, 45 P.2d 789, the court had before it the same situation that is presented here. The defendant’s attorney stated that the defendant desired to waive trial by jury. The district attorney stated he was willing to waive a jury. The court said:

“I think I will order a jury. I will order a jury, even though you are willing to waive it.”

Under Article I, Section 7 of the California Constitution, West’s Ann.:

“A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel. * * * ”

In sustaining the trial court the appellate court said:

“While a defendant charged with felony has a constitutional right to trial by jury, it does not follow that he has a constitutional right to be tried by the court without a jury. In the absence of authority to the contrary, we are of the opinion that the provision of the Constitution for waiver of jury trial does not take away from the trial court its power to require that the cause be tried by jury. See Regina v. Brewster, 2 Territories Law (Canada) 353.”

In paragraph 1 of the syllabus by the court in Palmer v. State, 195 Ga. 661, 25 S.E.2d 295, 296, it is said:

“A defendant who is charged with a felony, and upon the call of his case for trial files a written waiver of his right for a jury trial and demands that he be tried by the court without a jury, can not compel the court to so try him, and it is not error for the court to overrule such demand.”

To the same effect are Jones v. State, 155 Fla. 558, 20 So.2d 901 and Mitchell v. State, 233 Ind. 16, 115 N.E.2d 595. An extensive, note entitled “Right of accused to insist, over objection of prosecution or court, upon trial by court without a jury” appears in 51 A.L.R.2d page 1346.

The weight of both authority and reason impels us to hold that the trial court did not err in denying the defendant’s request that the case be tried to the court after both the defendant and the state’s attorney had waived a jury trial in open court.

A group of specifications of error may be summarized by stating that the defendant contends that the court erred in taking judicial notice of certain laws of the United States of America and the State of Colorado at the request of the prosecution and in instructing the jury with respect to those laws without notice having been given in compliance with Section 31-1004 NDRC 1943. This section reads as follows:

“Any party may present to the trial court any admissible evidence of the laws in another jurisdiction, but, to enable a party to offer evidence of such laws or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.”

The transcript shows that the prosecution offered in evidence an authenticated copy of a judgment of the United States District Court for the District of Montana convicting the defendant of certain violations of the Securities Act of 1933, IS U.S.C.A. § 77a et seq., and Section 88, Title 18 U.S.C.¹ and an authenticated record in the District Court of the City and County of Denver in the State of Colorado showing the defendant’s plea of guilty and sentence for the commission of the crime of “conspiracy to obtain money, by means of false pretenses.” These records were introduced in support of the prosecution’s contention that these convictions were not revealed by defendant’s answer to Item 11 of the application upon which the prosecution was based and in support of the prosecution’s further contention that fraud is an essential element of these crimes. When the court was asked to take judicial notice of certain statutes of the State of Colorado and of the United States of America the then attorney for the defendant made this obj ection:

“To which we object in view of the fact many of these statutes were not even in effect at the time that the court would need information as to what the law was.”

It is not contended that the objection so stated was valid. No objection was made that notice had not been given pursuant to Section 31-1004 NDRC 1943. The record does not disclose that any such objection was ever raised during the course of the trial. The first time that the failure to serve such a notice is mentioned is in the specifications of error served with defendant’s motion for a new trial. It does not appear that the court made any ruling or statement with respect to judicial notice at the time the request was made.

Near the close of the trial the court submitted proposed written instructions to the attorneys. The proposed instructions contained this statement:

“The court has taken judicial notice of the laws of Colorado in respect to said matter and instructs the jury that the offense mentioned in said Exhibit 4, if committed by the defendant, was a crime or misdemeanor of which fraud was an essential element as defined in subdivision K of the North Dakota law above quoted.”

Defendant’s attorney stated to the court:

“Now we object to that instruction because that is not the law, in our opinion. Also, that it is highly prejudicial. Also, that the law that was cited may not have been the law that was in effect at the time — the law of which the court took judicial notice may not have been the law in effect at the time of the Colorado conviction.”

Here again we see that if it be the fact (which the record does not clearly disclose) that no notice was given with respect to the prosecution’s request for judicial notice no question was raised at the trial as to the absence of such request.

It is the general rule that a party is not entitled as a matter of right to raise for the first time on a motion for new trial questions of law that could have been raised at the trial by timely objection. In other' words a party may not persist in an objection made for the first time on a motion for a new trial. 39 Am.Jur., New Trial, Sec. 115; 66 C.J.S. New Trial § 46. This rule is applicable in criminal cases. People v. Falkovitch, 280 Ill. 321, 117 N.E. 398, Ann.Cas.1918B, 1077; Commonwealth v. Polian, 288 Mass. 494, 193 N.E. 68, 96 A.L.R. 615. The defendant not having raised at the trial the alleged failure of the prosecution to give the defendant notice of its intention to ask the court to take judicial notice of certain statutes cannot urge that failure in support of his contention in this court that the trial court erred in refusing to grant him a new trial.

The defendant specifies as error the admission in evidence of a photographic copy of the original application of Universal Securities, Inc. which we have heretofore described in considerable detail. This copy is known in this record as Exhibit No, 2 and was objected to as immaterial, irrelevant, incompetent, not the best evidence and without proper foundation. As to the foundation it appears that it was shown to be a photographic copy of an official document which was a part of the records of the State Securities Commissioner who was the legal keeper of the original. The foundation clearly brings the document within the provisions of Section 31-0910 NDRC 1943 which prescribes the method for proving official documents and Section 31-08011 1957 Supplement to NDRC 1943 which provides for the admissibility of photographic copies of business and public records.

The argument in defendant’s brief is directed chiefly to the materiality and relevancy of the exhibit. It is argued that the defendant’s answer to Item 11 of the application contains sufficient pertinent information to meet the requirements of the law pursuant to which the application was made and does not contain material false statements and representations. This objection is not well taken. The exhibit was clearly admissible as part of the basic proof of the prosecution which showed that the defendant executed on behalf of Universal Securities, Inc. its application for registration as a dealer. Item 11 of this application required that there be attached thereto a rider giving all pertinent information with respect to convictions for misdemeanors of which fraud is an essential element. It was the State’s contention that the statement contained in the rider was false. That the application and rider were clearly competent and material evidence was forcefully demonstrated by the later introduction of the records of convictions which we have mentioned and the request to the court to take judicial notice of certain statutes and laws that we have previously discussed. All of this evidence was properly submitted to the jury at the close of the case as bearing' upon the defendant’s guilt with respect to the crime charged. No error was committed in the admission of the prosecution’s Exhibit No. 2.

We find no error on the part of the court with respect to any of his acts or rulings challenged by the defendant’s specifications. The judgment and order appealed from are affirmed.

SATHRE, C. J., and MORRIS, TEIGEN and BURKE, JJ., concur.

1 . Now 18 U.S.C.A. § 371.