State ex rel. Poul v. McLain

Citation102 N.W. 407,13 N.D. 368
PartiesSTATE ex rel. POUL v. McLAIN, Sheriff.
Decision Date15 February 1905
CourtUnited States State Supreme Court of North Dakota

13 N.D. 368
102 N.W. 407

STATE ex rel.
POUL
v.
McLAIN, Sheriff.

Supreme Court of North Dakota.

Feb. 15, 1905.



Syllabus by the Court.

1. A criminal complaint wherein the facts constituting the crime charged are stated upon the information and belief only of the complaining witness is not sufficient to justify the issuance of a warrant of arrest.

2. Although the arrest of the defendant upon a magistrate's warrant was illegal, because there was no sufficient showing of probable cause upon oath, the defendant waived all objections to the jurisdiction of the magistrate to proceed with the preliminary examination by giving bail, procuring adjournments of the hearing, and taking a change of venue without objection to the validity of the arrest.

3. Section 7960, Rev. Codes 1899, which provides that the witnesses upon a preliminary examination of a person accused of crime must be examined in the presence of the accused, guaranties to the accused the right to confront the witnesses against him at such hearing; but if the accused has given bail for his appearance before the magistrate at a time and place fixed for the hearing, and neglects, without excuse, to personally appear, but is represented by counsel, he cannot impeach the commitment because the magistrate, at the stated time and place, proceeded to hear the evidence in the absence of the accused, but in the presence of the defendant's counsel.


Application by the state, on the relation of John Poul, for a writ of habeas corpus to John McLain, sheriff of Ramsey county. Denied.

[102 N.W. 407]

L. N. Torson and A. M. Christianson, for petitioner. J. F. Philbrick, Asst. Atty. Gen., for the State.


ENGERUD, J.

This is an original application for a writ of habeas corpus, which was presented to this court after a denial of the application by Judge Cowan, of the Second Judicial District, wherein the petitioner

[102 N.W. 408]

is confined. It appears from the petition that on December 12, 1904, one George W. Frame, a justice of the peace of Pierce county, issued a warrant for the arrest of this petitioner on a charge of maintaining a common nuisance, which warrant was issued upon a complaint made and filed by B. L. Schuman, the state's attorney of that county. The facts constituting the crime charged are stated upon information and belief of the state's attorney, and the complaint is verified upon the information and belief only of the affiant. The defendant was arrested pursuant to the warrant and brought before the justice on the 12th of December, 1904, and the hearing was adjourned at defendant's request to the following day, and the defendant gave bail for his appearance at that time. At the time fixed by the adjournment the hearing was again adjourned on the application of the state, without objection from the defendant, to December 21st. On that day the hearing was again...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT