State ex rel. McGregor v. Rigg, 38166

• Decision Date: 05 May 1961
• Docket Number: No. 38166,38166
• Citation: 260 Minn. 141,109 N.W.2d 310
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota ex rel. Donald G. McGREGOR, Appellant, v. Douglas C. RIGG, Warden, Minnesota State Prison, Respondent.

Page 310

109 N.W.2d 310

260 Minn. 141

STATE of Minnesota ex rel. Donald G. McGREGOR, Appellant, v. Douglas C. RIGG, Warden, Minnesota State Prison, Respondent.

No. 38166.

Supreme Court of Minnesota.

May 5, 1961.

Rehearing Denied June 1, 1961.

Syllabus by the Court

1. Headnote to section of chapter inserted by secretary of state pursuant to Mason St.1927, § 5681, is not part of statute and is not to be considered in its construction.

2. Title of Minn.St. c. 618 (L.1937, c. 74) does not violate Minn.Const. art. 4, § 27, which provides: 'No law shall embrace more than one subject, which shall be expressed in its title.' Title of L.1937, c. 74, embraced general subject indicated, and matters within § 618.18, which prohibits obtaining narcotics in certain described ways, are germane and auxiliary to that general subject.

3. Constitutional right to speedy trial under Minn.Const. art. 1, § 6, may be waived by failure of defendant in criminal proceedings to demand prompt trial.

4. Under § 628.31, it is required that information be Filed after preliminary examination. Where defendant submits to court's jurisdiction without objection under information filed after preliminary examination, Held such information confers jurisdiction upon court notwithstanding it was dated after defendant's arrest and prior to date of preliminary examination.

5. Under § 628.33, which sets forth the form of informations, there is no requirement that blank line over words 'county attorney' be filled with the Written signature of county attorney. Information signed with name of county attorney by someone acting on his behalf, which signature was not challenged by defendant at hearing or sentence thereunder, Held sufficient to confer jurisdiction on court where county attorney adopts and approves such mode of signature by undertaking proceeding thereunder pursuant to applicable statute.

6. Relator's contentions relative to inadequacy of representation; and as to unconstitutionality of c. 618 on ground that § 618.23 is in conflict with equal protection clause of Federal constitution, considered and held to be without merit.

Donald G. McGregor, Stillwater, for appellant.

Walter F. Mondale, Atty. Gen., Charles E. Houston, Solicitor Gen., St. Paul, for respondent.

THOMAS GALLAGHER, Justice.

Petition for writ of habeas corpus directed to the warden of the Minnesota State Prison on the grounds that relator is unlawfully imprisoned because:

(1) Minn.St. 618.18 ¹ under which he was convicted is contrary to the provisions of Minn.Const. art. 1, § 7, (due process clause) and art. 4, § 27, M.S.A., ² and U.S.Const. Amend. XIV, § 1, (the Federal due process clause) in that its title 'Restrictions on obtaining drugs' is ambiguous and misleading and fails to explain the subject matter of the section; and in that the statute embraces more than one subject and defines more than one crime; and

(2) he was denied a speedy trial.

In his briefs submitted on appeal relator also contends that (1) he was not adequately represented by counsel; (2) the information under which he was charged was defective; and (3) § 618.23 ³ renders c. 618 invalid because the words limiting its application to 'any citizen of this state' are discriminatory and in conflict with the equal protection clause of the Federal constitution.

Relator was arrested October 20, 1958. On October 27, 1958, he was given a preliminary hearing in municipal court in Minneapolis. Later on that same date, he was arraigned in District Court of Hennepin County upon an information then read to him, of which a copy was then delivered to him, and which charged:

'* * * that DONALD GERALD McGREGOR committed the crime of ATTEMPT TO OBTAIN A NARCOTIC DRUG BY FRAUD (Sec. 618.18) as follows, to-wit:

'The said Donald Gerald McGregor on or about the 20th day of October A.D.1958, at the Village of Osseo in said Hennepin County, Minnesota, then and there being, did wilfully, unlawfully, wrongfully, knowingly and feloniously attempt to obtain a narcotic drug, to-wit: a quantity of demerol tablets from T. J. Bloedel, a duly and regularly licensed and acting physician in the Village of Osseo, Hennepin County, State of Minnesota, by, through and by means of fraud, deceit, misrepresentation, and subterfuge in that the said Donald Gerald McGregor falsely stated and represented himself to be and assumed that title of physician to the said T. J. Bloedel, and represented that he then resided at Box 263, Alma, Georgia, whereas in truth and in fact, said statements, representations so made were wholly false and untrue as he, the said Donald Gerald McGregor, then and there well knew, in that the said Donald Gerald McGregor is not a physician and that the address at said time given of Box 263, Alma, Georgia, was a false address.'

After the information was read, relator advised the court that he had no attorney. A plea of not guilty was entered for him and the court ordered that his case be referred to the public defender. The information, which was dated October 24, 1958, was filed October 27, 1958.

Trial was set for October 30, 1958, at 9 a.m. On October 28, 1958, however, relator appeared in court with Mr. Lewis Lohmann, attorney and public defender, as his counsel at which time the following occurred:

'MR. JONES (attorney for the state): Donald McGregor. I understand from counsel that Mr. McGregor wishes to withdraw his plea of not guilty as previously entered and enter a plea of guilty as charged to the felony of attempting to obtain a narcotic drug by fraud.

'MR. BROWN, the clerk: That is your desire at this time?

'THE DEFENDANT: That is my desire.

'MR. BROWN: To withdraw your plea of not guilty and enter a plea of guilty as charged?

'THE DEFENDANT: Yes.'

Relator was then duly sworn and testified as follows upon questioning by Mr. Lohmann:

'Q You and I discussed this charge of attempting to obtain a narcotic drug by fraud, did we not'

'A We did, sir.

'Q And you are aware that the penalty for that offense in the first instance could be two and a half to ten years in a penal institution, are you?

'A I understand it now.

'Q By reason of your prior conviction I advised you, as I did before, it could be doubled and could be five to twenty?

'A I understand.

'Q I made you no promises of any kind to induce you to make this plea, nor did I threaten you in any way.

'A No.

'Q Did anyone else?

'A No.

'Q You make it of your own freewill?

'A I do.'

On December 8, 1958, after the court received a report from the Department of Court Services, the following proceedings, at which relator was present, occurred:

'THE COURT: There isn't anything I can do for you under the circumstances. I will have to send you to Stillwater and let them determine what the trouble is.

'MR. LOHMANN: Before the Court passes sentence, I assume that the sentence could be limited anywhere from two and a half to seven years.

'THE COURT: I am not going to limit it; I am going to leave it to the authorities at Stillwater. * * * it is the judgment of this Court that you, Donald Gerald McGregor, for the crime of attempting to obtain a narcotic drug by fraud, be sentenced to the State's Prison at Stillwater until duly discharged by law. * * * 'It's been called to this Court's attention that there is an ambiguity in the law, and it's both counsels' opinion that this should be for seven years, but the ambiguity is such they are not sure, so I will state in the record, Mr. McGregor, that you are to be sentenced to the State Prison at Stillwater for a period of not to exceed seven years.'

The District Court of Washington County determined that the petition for the writ of habeas corpus was without merit and denied it.

1. We are of the opinion that the order appealed from must be affirmed. Relator's contention that § 618.18 is unconstitutional because of its subtitle or headnote--'RESTRICTIONS ON OBTAINING DRUGS'--is without merit. The title of c. 618 of which § 618.18 is a subdivision is 'OFFENSES RELATING TO NARCOTICS.' This chapter, which is modeled after the Uniform Narcotic Drug Act, defines Isonipecaine, for which Demerol is a trade name, as a narcotic drug. ⁴ The headnote for § 618.18 as above set forth is not a part of this legislative enactment. It was inserted under the provisions of Mason St.1927, § 5681, by the secretary of state and cannot be given consideration in determining legislative intent or in any construction relative to the meaning and intent of c. 618. State ex rel. Greenberg v. Erickson, 159 Minn. 287, 198 N.W. 1000; see, also, In re Dissolution of School Dist. No. 33, 239 Minn. 439, 60 N.w.2d 60.

2. The title of this chapter when it was enacted (L.1937 , c. 74) in our judgment was well within the requirements of Minn.Const. art. 4, § 27. This section of the constitution is designed to prevent deception as to the nature or Subject of legislative enactments. The term Subject as used therein should be given a broad and comprehensive meaning to permit inclusion within an act of all provisions germane or auxiliary to it. Blanton v. Northern Pac. Ry. Co., 215 Minn. 442, 10 N.W.2d 382. All that is necessary to establish compliance with this constitutional provision is that a statute must embrace one general subject under which all matters treated therein would logically fall. C. Thomas Stores Sales System, Inc. v. Spaeth, 209 Minn. 504, 297 N.W. 9. Here the title to L.1937, c. 74, ⁵ embraced the general subject of narcotic offenses. Thereunder, there would logically fall the restrictions of § 618.18 against obtaining narcotics by 'fraud, deceit, misrepresentation, or subterfuge; or * * * (d) by the use of a false name or the giving of a false address.'

3. On appeal for the first time relator urges that after his arrest on October 20, 1958, the failure to bring him to trial before October 27, 1958, constituted a violation of his constitutional right to a speedy trial. ⁶ Prior hereto no objection was ever made to this brief delay or...