State ex. rel. Baker v. Boucher

• Decision Date: 13 April 1899
• Citation: 78 N.W. 988,8 N.D. 277
• Court: North Dakota Supreme Court

78 N.W. 988

8 N.D. 277

STATE ex. rel. AUGUSTUS BAKER v. N. F. BOUCHER

Supreme Court of North Dakota

April 13, 1899

Application of Augustus Baker for a writ of habeas corpus.

Denied.

Writ discharged, and the petitioner remanded.

Hildreth & Ingwaldson, for petitioner.

Morrill & Engrud, for the State.

WALLIN J. YOUNG, J., concurs, BARTHOLOMEW, C. J. (concurring specially).

OPINION

WALLIN, J.

The petitioner, while incarcerated in the state's prison at Bismarck, applied to this Court for the writ of habeas corpus, and the same was issued and made returnable before this Court at a term held at Fargo on March 28, 1899. Petitioner claims that his said imprisonment is unlawful. The facts upon which this claim is made are set forth in the petition, and the same are wholly uncontroverted. It appears that an information was filed in the District Court for the County of Cass, at the Novermber, 1897, term of that court charging petitioner with the crime of rape. After a plea of not guilty the case was continued, and was not tried at said term, nor at the succeeding February term. A trial was had however, before said court, in the month of March, 1898, at which petitioner was found guilty by a jury, and subsequently sentenced by the Court to a term of imprisonment in the state's prison, which term has not yet expired. The trial of petitioner was not had at any term of court fixed or prescribed by legislative enactment, but was had at a term of court called by special order of the District Court, which order was as follows: "Fargo, North Dakota, February 14, 1898. A special term of the District Court of Cass county, North Dakota, is hereby called and ordered to begin on the 1st day of March, 1898, at the Court House in the City of Fargo, North Dakota, in due compliance with law. The same to be a jury term, and will be held for the trial of all actions, civil and criminal, of which said court has jurisdiction." Counsel for petitioner has not questioned the authority of the District Courts of this state to convene terms of court in addition to those expressly named by the statute; nor is the regularity of the call convening the term in question in any wise challenged. On the contrary, the sole contention of counsel is that the District Courts of this state are without authority to try an issue of fact in a criminal case at such called or special terms, or at any term other than at the regular terms expressly named in the statute. It is not contended that any irregularities of procedure occurred at the trial which resulted in defendant's conviction; nor is it claimed that the defendant interposed any objection at any time at or before his said trial to being tried at said term of court. As we have said, his sole contention is that the District Court was and is without authority to try an issue of fact in a criminal action at any called term of the District Court. We shall pass over the point, made by the state's attorney, to the effect that, at most, the point suggested by petitioner is a mere irregularity occurring at the trial, and therefore it cannot be reviewed by this proceeding. Without specifically passing upon this question, we shall assume, for the purposes of this case, that the objection is one which goes to the jurisdiction of the District Court to try the petitioner at the term when it assumed to do so, and that the question is now properly before this Court for decision.

We notice, first, that it is elementary that at the common law courts of record were authorized to call terms of court for the trial of causes, and their right to do so in this state is expressly preserved by section 118 of the state Constitution, which is as follows: "Until the legislative assembly shall provide by law for fixing the terms of courts, the judges of the Supreme and District Courts shall fix the terms thereof." Since the adoption of the Constitution the legislative assembly has proceeded to divide the state into judicial districts, and has established terms of court therein in the several counties, and fixed the times and places of holding such terms. See Pol. Code, Art. 6; Rev. Codes, § 402. But in so doing, the legislature has not attempted to limit the primary and constitutional authority of these courts to call other or special terms of court, but, on the contrary, express provision has been made for doing so. The lawmaker has declared as follows: "Nothing contained in Article 6 shall be construed to restrict the power of the court or any judge to call and convene other terms of court in any of said counties, and require the attendance of jurors at the same in the manner provided by law." Rev. Codes, § 411. This section clearly recognized the authority of District Courts in this state to convene terms of court in addition to terms expressly named and provided for by Article 6, supra, and such terms have been and are of very frequent occurrence. The statute expressly authorizes the court to require the attendance of jurors at such terms, in manner and form as is done at regular terms of court, and not otherwise. Under these provisions of law we regard it as being entirely clear that the District Court, when convened at such called terms, and equipped with a jury regularly drawn and summoned pursuant to law, is possessed of every power which it can lawfully exercise at any term of court.

This view, as has been seen, is not questioned by counsel as a general proposition; but counsel insist that section 7755 Rev. Codes, embraces an express inhibition against the trial of issues of fact in criminal cases at a called term of the District Court. Counsel especially emphasizes the following language, contained in said section: "But issues of fact in all criminal actions and proceedings must be tried at a regular term of the court." Counsel further cites, as supporting his contention, section 5176, Rev. Codes, which in effect provides that issues of fact in...