State ex rel. Peterson v. Barnes

• Decision Date: 21 February 1893
• Court: North Dakota Supreme Court

54 N.W. 541

3 N.D. 131

STATE ex rel. MAGNUS PETERSON v. BARNES

Supreme Court of North Dakota

February 21, 1893

Petition for a writ of habeas corpus by the state, on the relation of Magnus Peterson, against Oscar G. Barnes, as Sheriff of Cass County.

Writ discharged.

Writ discharged, and prisoner remanded.

Taylor Crum, for petitioner.

Robt. M. Pollock, State's Attorney.

OPINION

WALLIN, J.

Magnus Peterson, the petitioner, was arrested upon a criminal warrant issued by a justice of the peace of Cass County, and was taken before such justice of the peace for a preliminary examination. The complaint upon which the warrant was issued was read to the petitioner, and, acting upon the advice of counsel, the petitioner waived an examination, and was committed for trial at the next ensuing term of the District Court for Cass County. The complaint was sworn to, and omitting certain formal parts not criticized, is as follows "State of North Dakota vs. Magnus Peterson, defendant. A. E. Jones, being by me first duly sworn, on oath complains and charges that the defendant, Magnus Peterson, at the said County of Cass, on the 15th day of August, A. D. 1891, with force and arms, did then and there commit the crime of obtaining property under false pretenses, as follows, to-wit That on the said 15th day of August, 1891, at the City of Fargo, in said County of Cass, the said Magnus Peterson, with intent to cheat and defraud Aultman, Miller & Co., and for the purpose of obtaining of it, the said Aultman, Miller & Co., property of the value of seventy dollars by means thereof, did falsely and feloniously represent and state to said Aultman, Miller & Co., that he, said Magnus Peterson, was then and there the owner of 80 acres of land in the County of Clay and State of Minnesota free from all incumbrances, and of the value of $ 1,500, and also of personal property within said County of Clay and State of Minnesota of the value of $ 1,000, over all indebtedness and legal exemptions; that, by reason of said false and fraudulent representations, the said Aultman, Miller & Co., were induced to and did sell and deliver to said Magnus Peterson on said 15th day of August, 1891, 540 pounds of pure manilla twine, then and there the property of said Aultman, Miller & Co., and of the value of $ 70, against the peace and dignity of the State of North Dakota, and contrary to the form of the statute in such case made and provided, and prays that the said Magnus Peterson may be arrested and dealt with according to law." No depositions or testimony other than said complaint was taken by the justice of the peace before issuing the warrant of arrest, or at any time. At a term of the District Court for Cass County next following such commitment the state's attorney of said county filed an information in due form against said Magnus Peterson, charging him with "the crime of obtaining property under false pretenses."

It will be unnecessary, for the purpose of disposing of this case, to set out the information in detail. It is conceded that it is a valid and sufficient information; also, that certain averments of fact, which are essential in an information or indictment charging said offense, were embodied in the information, but were ommitted from the complaint upon which the warrant of arrest was issued.

The petitioner, on being brought to trial on the information, pleaded in abatement thereto that "he had never had a preliminary examination for the crime or offense charged, nor waived the same, and that the crime charged was not committed during the session of the court, and that the petitioner was not a fugitive from justice." The antecedent history of the case appeared of record as above narrated, and no issue of fact was litigated upon the issues raised by the plea in abatement. The District Court overruled the plea, holding that the petitioner, having waived a preliminary examination, was in a position which authorized the state's attorney to file an information against him for the offense charged by such information, and that the offense set out in the complaint was the same offense, in substance, as that charged in the information. This ruling is assigned as error in this court.

The petitioner refused to plead either guilty or not guilty, whereupon the court directed a plea of not guilty to be entered in his behalf, and after a trial the prisoner was found guilty. A motion was made and overruled in arrest of judgment, and the petitioner was sentenced to a term of six months in the state's prison at Bismarck. Exceptions were saved to the several rulings above mentioned. While in the Cass County jail under said sentence the petitioner was awarded the writ of habeas corpus, directed to the sheriff of Cass County, and upon the return of the writ the foregoing facts are upon the record of this court.

Upon the facts appearing of record, only one question arises upon the merits. It is this: In waiving a preliminary examination before the magistrate, did the petitioner, within the meaning of the statute, waive an examination for the crime or offense charged in the information lodged against him by the state's attorney? We think he did. Section 8, Ch. 71, Laws 1890, provides, with certain exceptions, not necessary to notice in this case, that "no information shall be filed against any person for any crime or offense until such person shall have had a preliminary examination therefor, as provided by law, before a committing magistrate or other officer having authority to make preliminary examinations unless such person shall waive his right to such examination," etc. The manifest purpose of this provision of the statute is, with the exceptions specified in the statute, to prohibit the state's attorney from filing an information in the District Court charging any person with a public offense until the person accused has first had or waived a preliminary examination before an examining magistrate upon a complaint charging the offense set out in the information filed in the District Court. The grand jury being abolished, this statute was enacted to furnish the citizen with a substantial safeguard against hasty and ill advised prosecutions for grave public offenses. Without this statute, or one of similar import, the grand jury no longer existing, a citizen would be required to stand his trial for a felony on the mere accusation of one person, viz: the state's attorney. It was to prevent such a state of things that the statute above quoted was enacted, and it should therefore be upheld, and not be frittered away by judicial construction. Was the petitioner denied any right secured to him by the statute? He exercised his privilege, and waived an examination, which was tendered to him. In so doing did he waive an examination, within the meaning of the statute? In other words, was the examination tendered him by the proceedings in justice's court such as is "provided by law?" The prisoner's counsel has suggested but one reason why the preliminary examination was not such as is contemplated by the statute. The point is made that the complaint lodged with the...