State v. Webb

162 N.W. 358, 36 N.D. 235, 1917 N.D. LEXIS 183

• Court: North Dakota Supreme Court
• Decided: March 23, 1917
• Status: Published

Opinions

Christianson, J.

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, charging “that Oser W. Webb did on the 6th day of November, a. d. 1915, at the town of Minot, in said county and state, commit the crime of keeping and maintaining a common nuisance as a second offense, committed as follows, to wit: That at the said time and place the said Oser W. Webb did wilfully, unlawfully, and feloniously keep and maintain a place in the city of Minot, Ward county, North Dakota, in which said place he sold intoxicating liquors unto John Mohagen and divers other persons, and in which said place he permitted peopJe to resort for the purpose of drinking intoxicating liquors as a beverage, and in which said place intoxicating liquors were kept by him for barter, sale, and delivery in violation of law, and that theretofore and on February 8, 1908, the said Oser W. Webb, was arraigned for the crime of keeping and maintaining a common nuisance in the county of Williams, North Dakota, and upon conviction thereof, was, on the 29th day of February, 1908, sentenced therefor and rendered himself in execution of the said sentence, which sentence was not vacated, set aside,, or reversed, . . . 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.”

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 there permitted to resort, and where they did then and there resort for the purpose of drinking intoxicating liquors as a beverage, and in which said place intoxicating liquors were then and there kept for sale, barter, and gift as a beverage, in violation of law; and that theretofore, and 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 29th day of February, 1908, and rendered himself in execution of the said sentence and that the said sentence has not been modified, vacated, or set aside.

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 complaint, and that as to such additional time he has neither had, nor waived, a preliminary examination.

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 committed between Inly 1st, 1914, and December 2, 1915. The entire period charged was, therefore, prior to the date on which the preliminary examination was held, and within the period of limitation. The crime of keeping and maintaining a common nuisance is a continuing offense. And in our opinion inquiry upon a preliminary examination of a person accused of such crime may properly extend to the date on which such examination is had. When the preliminary examination was held on December 3d, 1915, the state was not restricted in its proof to the date alleged in the information, but it might offer evidence tending to show the commission of the offense at any time prior thereto, within the Statute of Limitations. The defendant was, therefore, afforded a preliminary examination for the entire period charged in the information.

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 said term said defendant was tried.” This disposes of the only question in any manner raised or argued by appellant on this appeal.

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. matter which pertains only to matters as to additional punishment. State v. Bloomdale, 21 N. D. 77, 79, 128 N. W. 682.

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. .

The rule requiring a former conviction to be pleaded at length is abrogated in prosecutions for violations of the Prohibition Law by our statute (Comp. Laws 1913, § 10,128), which provides that “in any prosecutions for the second or subsequent offense, it shall not be requisite to set forth in the information or affidavit or indictment the record of the former conviction, but it shall be sufficient briefly to allege such conviction.” This language directly negatives the theory advanced, that the facts with respect to the first offense must be alleged in an information charging the commission of the second offense. All that is required is to allege the former conviction.

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 •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, to be played according to certain technical rules, with the judges acting as umpires. It is a solemn judicial proceeding to ascertain the guilt or innocence of a person accused of crime. Rules of criminal procedure were not formulated to enable criminals to escape punishment. They were formulated to aid the courts in properly dispensing justice in criminal causes. They are intended on the one hand to safeguard the rights of the accused to the end that no innocent person may be convicted of crime, and they are intended on the other hand to enable the state to bring those guilty of crime to the bar of justice. A person accused of crime is entitled to a fair trial in accordance with the principles enunciated in the Constitution and the laws of this state. This right is self-evident. But it is equally self-evident that civilized society as now constituted cannot long exist unless the state can enforce its laws against wrongdoers. The rules of criminal procedure should be construed to effect the purposes for which they were intended, and not to defeat them. The test is not whether certain legal formulas have been literally complied with, but whether anything has been done or left undone which prejudices the substantial rights of the accused. If a substantial right has been prejudiced a new trial should be had. If not, it is equally the duty of an appellate court to affirm a conviction.

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.