State v. Bauer

• Decision Date: 02 November 1967
• Docket Number: Cr. 358
• Citation: State v. Bauer, 153 N.W.2d 895 (N.D. 1967)
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Elroy BAUER, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 895

153 N.W.2d 895

STATE of North Dakota, Plaintiff and Appellant, v. Elroy BAUER, Defendant and Respondent.

Cr. 358.

Supreme Court of North Dakota.

Nov. 2, 1967.

Syllabus by the Court

1. An appeal from the judgment of a county justice in a criminal action, when perfected, transfers the action to the district court for trial anew on the criminal complaint and the defendant may move in the district court to dismiss the complaint on the ground facts stated therein do not constitute a public offense. Sections 33--12--34 and 33--12--40, N.D.C.C.

2. On an appeal from the judgment of a county justice in a criminal action to the district court, the plea is made to the complaint.

3. The State has only such right of appeal in a criminal action as is expressly conferred by law.

4. An order made by the district court dismissing the complaint under Section 33--12--40, N.D.C.C., is non-appealable.

Gordon O. Hoberg, State's Atty., Napoleon, for plaintiff and appellant.

Richard E. Herr, Wishek, for defendant and respondent.

TEIGEN, Chief Justice.

A criminal action, which the county justice's court was empowered to hear, try, and determine, was prosecuted pursuant to the provisions contained in Chapter 33--12, N.D.C.C., against the defendant for the crime of 'failing to give immediate notice of an accident.' The defendant was brought before the county justice named in the complaint and appeared with his attorney. The defendant, by his attorney, made a motion to dismiss the complaint on the ground that the facts alleged in the complaint do not constitute a public offense and, further, if it is held that it states an offense, it violates the defendant's constitutional rights.

The motion was denied and, upon trial, the defendant was found guilty. The county justice sentenced the defendant to pay a fine and assessed costs. The defendant appealed and the county justice set bail which was furnished and the defendant was released. The county justice transmitted this case to the clerk of the district court pursuant to Section 33--12--39, N.D.C.C. At the next term of the district court the State's attorney requested permission to file a criminal information, alleging in identical language the facts set forth in the complaint. The defendant was present and was represented by his attorney.

No objection was made and the district judge granted the request and ordered the criminal information filed. The attorney for the defendant then moved to quash the information on the ground that the facts stated in the information do not constitute a public offense. The motion was resisted by the State. Arguments were heard and the trial court took the matter under advisement, giving each side an opportunity to file briefs. Thereafter, the district judge issued his memorandum opinion sustaining the grounds of the motion to quash and signed an order quashing the criminal information. The State has appealed from said order to this court.

Our statutes provide that an appeal may be taken from a judgment of a county justice by the defendant upon both questions of law and fact. Section 33--12--34, N.D.C.C. An appeal from the county justice in a criminal action duly perfected transfers the action to the district court for trial anew and the statutes provide that the defendant may move to dismiss the complaint 'because the facts stated do not constitute a public offense' before he is required to plead. Section 33--12--40, N.D.C.C. This section also provides that if the defendant does not object to the complaint on the grounds specified or if the objections are overruled, he must then be required to plead to the complaint as to an indictment or information and, in other respects, the proceeding shall be the same as in criminal actions originally commenced in the district court.

Thus it is clear that the trial anew in the district court, on an appeal from the judgment entered by the county justice in a criminal action, does not contemplate that an information be filed but that trial shall be had upon the complaint filed in the county justice's court. A public offense, where a trial may be had in justice, police, or county court, is excepted from the statute requiring prosecution by information or indictment. Section 29--01--01, N.D.C.C.

For these reasons, we will consider the order entered by the district court as one dismissing the complaint as contemplated by Section 33--12--40, N.D.C.C.

A motion to quash is made applicable by statute only to an information or an indictment. Section 29--14--01, N.D.C.C. It is not made applicable to a complaint.

Having determined that the statutes providing for motions to quash are not...