State v. Anderson

• Court: North Dakota Supreme Court
• Citation: State v. Anderson, 66 N.D. 522, 267 N.W. 121 (N.D. 1936)
• Decision Date: 21 May 1936
• Docket Number: Cr. No. 130.
• Parties: STATE v. ANDERSON et al.
• Writing for the Court: NUESSLE

66 N.D. 522

267 N.W. 121

STATE

v.ANDERSON et al.

Cr. No. 130.

Supreme Court of North Dakota.

April 25, 1936.

Rehearing Denied May 21, 1936.

Syllabus by the Court.

1. An information which states the facts constituting an offense in general words and in the language of the statute defining the offense will be held sufficient, although some of the necessary allegations are stated or appear by inference and not by positive allegation, where the objection that the facts stated do not constitute a public offense is raised for the first time on appeal from the judgment of conviction.

2. An information for extortion is insufficient as against a demurrer on the ground that it does not comply with the requirements of sections 10685 and 10693, Comp.Laws 1913, where the information does not contain a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended but merely states the charge in the general language of the statute (section 9943, Comp.Laws 1913) defining the offense.

Appeal from District Court, Ward County; A. J. Gronna, Judge.

Fred L. Anderson and T. C. Wilde were convicted of extortion, and they appeal.

Reversed and remanded.

Crum & Crum, of Bismarck, and G. W. Twiford, of Minot, for appellants.

P. O. Sathre, Atty. Gen., and Robert W. Palda, State's Atty., of Minot, for the State.

NUESSLE, Judge.

The defendants were arraigned on a charge of extortion. They demurred to the information. The demurrer was overruled. They were tried and found guilty. They moved in arrest of judgment. The motion was denied, and judgment of conviction was entered against them. Thereupon they appealed to this court. The appeal is on the judgment roll.

The information charged that the defendants conjointly “did wilfully, unlawfully, and feloniously, with the consent of one Ward, induce him, the said Ward, by wrongful use of fear, to turn over to them an automobile, to wit: a 1929 Oldsmobile sedan. This contrary to the form of the statute * * *.” The defendants demurred on the ground: “That said information fails to charge the defendants, or either of them, with a criminal offense under the law of the State of North Dakota, in that it fails to state how, or by what means, defendants used force, or fear, to induce the prosecuting witness to consent to defendants obtaining his automobile.” The statute, Compiled Laws 1913, provides:

“§ 9943. Extortion is the obtaining of property from another with his consent induced by a wrongful use of force or fear, or under color of official right.”

Ҥ 9944. Fear such as will constitute extortion may be induced by threat, either:

1. To do an unlawful injury to the person or property of the individual threatened, or to any relative of his or member of his family; or,

2. To accuse him, or any relative of his or member of his family, of any crime; or,

3. To expose, or impute to him or them, any deformity or disgrace; or,

4. To expose any secret affecting him or them.”

“§ 9945. Every person who extorts any money or other property from another, under circumstances not amounting to robbery, by means of force or any threat such as is mentioned in the last section, is punishable by imprisonment in the penitentiary not less than one and not exceeding five years.”

Pursuant to section 10737:

“The defendant may demur to the information or indictment when it appears upon the face thereof, either: * * *

2. That it does not substantially conform to the requirements of this code. * * *

4. That the facts stated do not constitute a public offense.”

Section 10685 provides that the information or indictment must contain a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. Section 10686 provides that the allegations of the information or indictment must be direct and certain as regards: (2) The offense charged, and (3) the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. And section 10693 provides that the information is sufficient if it can be understood therefrom: (6) That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended; and (7) that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case.

[1] In support of their appeal the defendants first urge that the facts stated in the information do not constitute a public offense. In that behalf they contend that the information does not set forth that the automobile charged to have been obtained from Ward was his property, nor does it negative the ownership of such automobile by the defendants Anderson and Wilde, or either of them. They urge that the ownership of the property, or at least its rightful possession by Ward, was essential to constitute the obtaining of it from him under the circumstances set out in the information, the crime of extortion; that the information does not so allege; that it is only by way of inference and implication from the facts set out in the information that it can be said that the automobile belonged to or was rightfully in Ward's possession. We think even though good if timely made, this contention of the defendants is raised too late. The demurrer is inartificially drawn. Its challenge is directed to the failure of the information to conform to those requirements of the Code of Criminal Procedure prescribed in sections 10685, 10686, and 10693, set out above. While it recites that the information fails to state facts constituting a public offense, it does not stop with this recital. It proceeds further and gives the reason therefor, to wit, that the information “fails to state how, or by what means, defendants used force or fear to induce the prosecuting witness to consent to the defendants obtaining his automobile.” The insufficiency of the information in this particular respect was the defect at which the defendants' challenge was directed, and the ground on which the defendants relied on their motion in arrest of judgment. They now urge for the first time the insufficiency of the facts stated to constitute a public offense because the ownership or right to possession of the property is not challenged. An examination of the demurrer shows that when it was interposed the defendants conceded that the information sufficiently charged the automobile to be the property of Ward, for the demurrer recites that the information “fails to state how, or by what means, defendants used force or fear to induce the prosecuting witness to consent to the defendants obtaining his automobile.” They cannot after trial and judgment be permitted to enlarge the grounds on which they objected to the information where the allegations of the information are such as they are here. See State v. Johnson, 17 N.D. 554, 118 N.W. 230;State v. Sanders, 14 N.D. 203, 103 N.W. 419. Accordingly, it becomes necessary to test the sufficiency of the information in the light of the requirements of sections 10685, 10686, and 10693, supra.

[2] The crime of “extortion,” as defined by section 9943, supra, is a statutory enlargement upon the common-law offense. At the common law extortion was confined to the unlawful taking by any officer, by color of his office, of any money or thing of value that was not due to him or more than was due or before it was due. 12 Cal.Jurisprudence, 374; Wharton's Criminal Law, § 1895; 1 Bishop's Criminal Law (9th Ed.) § 573.

The rule, with respect to statutory offenses generally, is that it is sufficient to charge them in an information or indictment in the words of the statute definingthem. But this rule does not apply in all cases. The exception arises where “the particular circumstances * * * are necessary to constitute a complete offense.” What the rule above referred...