State ex rel. Johnson v. Broderick

Decision Date27 June 1947
Docket NumberCrim. No. 206.
Citation75 N.D. 340,27 N.W.2d 849
PartiesSTATE ex rel. JOHNSON, Attorney General, et al. v. BRODERICK, District Judge. In re NEMMERS.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Proceeding by the State, on the relation of Nels G. Johnson, Attorney General, and L. G. Thompson, Superintendent of the State Training School, against L. C. Broderick, Judge of the District Court of Morton County, for a supervisory writ to review the action and decision of the defendant in a certain habeas corpus proceeding brought by Norman Nemmers against L. G. Thompson, Superintendent of the State Training School.

Writ issued directing the defendant to enter an order that Norman Nemmers was not entitled to his discharge on habeas corpus, and that he be remanded to the custody of L. G. Thompson.

Syllabus by the Court.

1. Sections 86 and 87 of the state Constitution vest in the Supreme Court: (1) Appellate jurisdiction; (2) a general superintending control over all inferior courts; (3) an original prerogative jurisdiction; and (4) the power to issue such original and remedial writs as may be necessary for the proper exercise of the appellate, superintending and original jurisdictions so vested in the Supreme Court.

2. The power of ‘general superintending control over all inferior courts' is separate and distinct from the appellate jurisdiction and the original prerogative jurisdiction vested in the Supreme Court and was granted to meet emergencies to which the appellate jurisdiction and the original jurisdiction are not commensurate.

3. The power of general superintending control over inferior courts was vested in the Supreme Court to assure a corrective remedy where an inferior court refuses to act within its jurisdiction, acts injudiciously or erroneously within its jurisdiction, or acts beyond its jurisdiction, to the serious prejudice of any party, and where there is no adequate remedy for the review and correction of such erroneous and prejudicial acts.

4. When an application is made to the Supreme Court invoking its power of superintending control over inferior courts and it appears that the case is one in which the power may be exercised, it is for the court to determine whether the ends of justice require that the power should be exercised.

5. With the power of general superintending control over inferior courts and the attendant writs, the Supreme Court received all the power necessary to make that control and those writs effective. The writ may be framed to meet the exigencies of the case. It may take the nature of a command or of a prohibition, or it may command certain acts to be performed and restrain the performance of others.

6. The power of superintending control will not be exercised upon light occasions. It will be exercised only where the exigency is of such nature as clearly to justify the interposition of the general superintending power, and where there is no other adequate remedy by appeal or otherwise.

7. In this state no appeal lies from a decision of a district court or the judge thereof in a habeas corpus proceeding; but the erroneous decision of a district court or the judge thereof that the petitioner in such proceeding is entitled to be released from imprisonment or detention in a state penal or charitable institution may be reviewed and controlled through the exercise of the power of superintending control.

8. The power of superintending control does not remain dormant until the inferior court has entered final order or judgment. Where the exigencies of the case require, such power may be exercised to prevent the inferior court from entering an unauthorized or erroneous order or judgment.

9. Where a district judge, at the conclusion of a hearing of an application for writ of habeas corpus by a person who has been committed to the State Training School and is detained therein under a commitment of a district court in this state, has announced his decision as to the law and facts and his purpose to proceed to enter final order for the discharge of the person so detained, the attorney general of the state and the superintendent of the State Training School are not required to sit idly by and permit the final order to be entered and the person so committed and detained to be released and set free before invoking the power of superintending control to review the action of the district judge and to preclude the entry of an erroneous order for the release of the petitioner for the writ of habeas corpus.

10. On habeas corpus the inquiry is limited to questions of jurisdiction. The writ of habeas corpus cannot be used as a substitute for appeal or writ of error to obtain a review of the correctness of the acts of a court that was acting within its jurisdiction.

11. In this state a defendant in a criminal action has no constitutional right to a preliminary examination; this right is granted by statute only and is dependent upon and limited by the statutory provisions relating thereto.

12. By a plea of guilty or a plea of not guilty to a criminal information, the accused waives all objection to the information on the ground that he was entitled to a preliminary examination before the filing of the information and has not had or waived such examination.

13. Whether a defendant in a criminal action is entitled to a preliminary examination and whether he has had or waived a preliminary examination are questions properly determinable by the court that has jurisdiction of the trial of the criminal action, and that court's rulings on such questions are questions within that court's jurisdiction and are not reviewable by writ of habeas corpus.

14. N.D.R.C.1943, Sec. 29-0903, which provides that ‘Whenever any state's attorney shall present to the district judge his statement in writing, duly verified, that an accused held for trial after preliminary examination or waiver thereof desires forthwith to enter a plea of guilty, said statement, when accompanied by a written confession of guilt of the person accused of said crime, duly signed by the person so accused, shall constitute the authority of the district judge to order the state's attorney of the county wherein said defendant is held for trial forthwith to file a criminal information against such person with the clerk of the district court of such county,’ does not apply in a case where an information is filed against the accused in the county in which he is held for trial. It applies only in cases where the defendant in a criminal action is arraigned in some county other than the one in which he is being help for trial. State v. Pedie, 58 N.D. 27, 224 N.W. 898, followed.

15. In the codification of statutes the general presumption obtains that the codifiers did not intend to change the law; and mere changes of phraseology or punctuation, or the addition or omission of words, or the rearrangement of sections or parts of a statute, or the placing of portions of what formerly was a single section in separate sections, does not operate to change the operation, effect or meaning of the statute unless the changes are of such nature as to manifest clearly and unmistakably a legislative intent to change the former law.

16. Whether a criminal information contains sufficient allegations of the crime purported to be charged therein is a question for determination by the trial court, and where the crime charged is one within the jurisdiction of that court, the court does not lose jurisdiction because it sustains an information which fails to charge with sufficient certainty and fullness some particular fact involved in the crime purported to be charged.

17. It is within the jurisdiction of the district court to construe the meaning, and pass upon the sufficiency, of a plea to a criminal information; and if an error is committed by the court in so doing, it is ‘an error committed in the exercise of jurisdiction, and one which does not present a jurisdictional defect remediable by the writ of habeas corpus'.

18. For reasons stated in the opinion it is held that the record discloses that the petitioner for the writ of habeas corpus was not denied, or deprived of, any right guaranteed to him by the constitution and laws of the State of North Dakota or by the constitution of the United States, and that he is legally detained in custody in the State Training School by virtue of a final order of a ‘competent court of criminal jurisdiction’ and a commitment issued upon such order, and, hence, ‘is not entitled to relief from imprisonment or restraint under a writ of habeas corpus.’

Nels G. Johnson, Atty. Gen., and I. A. Acker, P. O. Sathre, and C. E. Brace, Asst. Attys. Gen., for relators.

Murray & Murray, of Bismarck, for defendant.

CHRISTIANSON, Chief Justice.

The Attorney General, appearing for the State of North Dakota and the above named relator, L. G. Thompson as superintendent of the State Training School, has applied to this court for a supervisory writ to review the action and decision of the Honorable L. C. Broderick as judge of the district court of Morton County in a certain habeas corpus proceeding brought by the above named Norman Nemmers against L. G. Thompson as superintendent of the State Training School. The material facts are substantially as follows.

A petition for a writ of habeas corpus was presented to the Honorable L. C. Broderick, one of the judges of the Sixth Judicial District in the State of North Dakota, by and on behalf of the above named Norman Nemmers. The petition was signed by the attorney for said Norman Nemmers and verified by such attorney on information and belief. In such petition it is alleged:

‘That he the said Norman Nemmers, is unlayfully imprisoned, detained and restrained of his liberty by L. G. Thompson, Superintendent of the State Training School, at the State Training School, in the city of Mandan and county of Morton, North Dakota;

‘That the cause or pretense of said imprisonment,...

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