State v. Colohan

• Decision Date: 27 June 1939
• Citation: 69 N.D. 316,286 N.W. 888
• Parties: STATE v. COLOHAN.
• Court: North Dakota Supreme Court

69 N.D. 316

286 N.W. 888

STATE

v.COLOHAN.

Supreme Court of North Dakota.

Cr. 165.

June 27, 1939.

Syllabus by the Court.

1. Where no exceptions to the charge given the jury are taken and filed, specifications of error based thereon will not be considered on appeal.

2. Alleged prejudice to the rights of the defendant based upon the action of the court in receiving the verdict of a jury in another case during the trial of the case at bar will not be considered on appeal when the alleged error was never called to the attention of the trial court, no objection to the action of the court taken, and when it was not made the basis of motion for a new trial. Matters not shown by the record can not be considered.

3. Where, after entering a plea of “not guilty,” the defendant requested and obtained leave of the court to withdraw the plea for the purpose of entering a demurrer, and thereafter, when the demurrer was overruled, proceeded to trial without re-entering a plea, and testimony was taken and the case submitted to the jury upon the evident theory that a plea of “not guilty” had been entered, the inadvertent omission of entry of plea is not reversible error when the accused is allowed to make his defense as fully and effectively as if issue had been joined after the overruling of the demurrer and no injury to the substantial rights of the defendant appears.

4. The provisions of section 61 of the constitution of the State, to-wit: “No bill shall embrace more than one subject, which shall be expressed in its title, but a bill which violates this provision shall be invalidated thereby only as to so much thereof as shall not be so expressed,” are to be construed liberally. It is not intended that the title should be an index or a catalog of the details of the act, and these provisions are fully met when the various subjects embraced therein are germane and reasonably connected with the subject expressed in the title and when all the provisions of the act are consistent with its avowed purpose.

5. Chapter 162 of the Session Laws of 1927, being “An Act Regulating the Operation of Vehicles on Highways * * *,” is not open to attack on the ground that the bill embraces more than one subject because the bill includes section 2 and section 62 legislating against operating a motor vehicle while under the influence of intoxicating liquors and providing punishment therefor. The statute is a comprehensive one, designed to control and regulate the operation of motor vehicles upon highways and to make uniform the law relating to the subject matter. The statute provides methods for the enforcement of the act and these features of enforcement are germane to the general subject.

6. Said chapter 162 of the Session Laws of 1927 is not open to attack on the ground that it contains the provisions of sections 2 and 62 without having the same expressed in the title when the title to the act states explicitly that the act provides for the enforcement of its provisions.

7. Chapter 162 of the Session Laws of 1927 is not repealed or annulled by chapter 175 of the Session Laws of 1933 authorizing a city to prohibit by ordinance the driving of a motor vehicle upon its streets by any one under the influence of intoxicating liquor.

8. Section 62 of chapter 162 of the Session Laws of 1927 authorizes the trial court to sentence a person convicted of operating a motor vehicle on the public highways while under the influence of intoxicating liquors to pay a fine, or to be imprisoned in the county jail, or both, and in case the court sentences the defendant to imprisonment, the court may suspend the sentence of imprisonment or any part thereof and make its order that the person so sentenced shall be precluded from driving any automobile within this State for a period of not to exceed two years; but it is only in case the sentence of imprisonment is suspended that the court may enter such restraining order.

9. Where the trial court sentences a person convicted of the crime of operating a motor vehicle upon the highways of the State while under the influence of intoxicating liquors to pay a fine and to suffer imprisonment for a definite period stated in the sentence and judgment, and enters a restraining order precluding the defendant from operating a motor vehicle on the highways for a defined period without suspending the sentence of imprisonment, said sentence will be set aside and the case remanded to the trial court with instructions to pass sentence within the limits prescribed by statute.

Appeal from Cass County Court; P. M. Paulsen, Judge.

James P. Colohan was convicted of operating a motor vehicle while under the influence of intoxicating liquor, and he appeals.

Conviction affirmed and case remanded for resentence.Allen W. Wood, of Fargo (Chauncey B. Simons, of Fargo, on the brief), for appellant.

Alvin C. Strutz, Atty. Gen., and Ralph F. Croal, State's Atty., and Odin J. Strandness, Asst. State's Atty., both of Fargo, for the State.

BURR, Judge.

The defendant was convicted of the crime of “Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor,” under the provisions of section 2 and section 62 of chapter 162 of the Session Laws of 1927, the specific facts charged being that “the said defendant did wilfully and unlawfully operate and drive a motor vehicle upon the streets of Fargo, North Dakota, while being under the influence of intoxicating liquor.” The maximum penalty set forth in section 62 of the act is imprisonment in the county jail for one year and a fine of five hundred dollars for the first offense and imprisonment in the county jail for not less than one year and a fine of one thousand dollars for the second offense.

The defendant entered a plea of “not guilty.” After the case was called for trial, but before the jury was drawn, he asked and obtained leave to withdraw this plea in order to demur to the information. The demurrer alleged that the information did not state facts sufficient to constitute a cause of action, basing the same upon the subdivisions (a), (b), and (c) hereinafter set forth. The demurrer was overruled. The record does not show any entry of plea thereafter. A jury was impaneled and sworn and testimony introduced by the State. The case was submitted to the jury under instructions by the court and the verdict of “guilty” returned.

When the verdict was returned the defendant made a “motion to vacate verdict, dismiss complaint and discharge defendant,” basing the motion upon the identical grounds used as the basis for the demurrer. This motion was overruled. The defendant then made a motion “in arrest of judgment, or in the alternative for a new trial * * *,” basing this upon the same grounds. This motion was overruled, and sentence was pronounced. Thereupon the defendant appealed to this court.

The notice of appeal states the appeal is taken from “the following orders and judgment, to-wit:

1. From that certain order refusing Motion in arrest of Judgment or in the alternative for a new trial, a copy of which Motion and Order is hereto attached and made a part hereof;

2. From that certain other Order refusing defendant's Motion to vacate the verdict, dismiss the Complaint and discharge the defendant, a copy of which said Motion and Order thereon is hereto attached and made a part hereof;

3. From that certain final Judgment of conviction entered herein upon the same grounds and reasons specified in the two proceeding Motions and Orders thereon, a copy of which said Judgment is hereto attached and made a part hereof.”

Thus, the appeal is limited to these grounds.

In the specifications of error the defendant sets forth as Nos. 1, 2, and 3 grounds used as a basis for his demurrer and the various motions which were made. As No. 4 he specifies as erroneous a portion of the charge to the jury; as No. 5, “that the Court was without jurisdiction to try the case without a plea of ‘Not Guilty’ by the defendant” and “erred in not obtaining a plea from the defendant.” As No. 6: “That the evidence was insufficient to sustain a verdict of Guilty in that the evidence did not prove that the defendant was driving a Motor Vehicle while under the influence of liquor as contemplated by law under the directions of the Court as to what constituted being under the influence of liquor.”

As No. 7 and No. 8 he specifies the overruling of objections to the taking of testimony and of his motion to dismiss made at the close of the case. As No. 9 he alleges: “That the court erred in staying the progress of the trial and allowing a jury, composed of members of the same panel to bring in and announce a verdict of guilty in a similar case against another defendant previously tried all in the presence of the jury herein. The same being prejudicial to the rights of the defendant.”

As No. 10 appellant complains of excessive penalty under the statute.

Specifications No. 1, No. 2, No. 3, No. 7, and No. 8 will be considered together.

[1] No exception to any portion of the charge was taken or filed, and therefore we do not consider specification of error No. 4. See State v. Shoars, 59 N.D. 67, 228 N.W. 413;State v. Johnson, 68 N.D. 464, 281 N.W. 16;State v. Gibson, 69 N.D. ---, 284 N.W. 209, 221.

There is no dispute as to the facts. They are ample to justify conviction and need not be set forth. There is no merit in specification No. 6.

[2][3][4] With reference to specification of error No. 9 the defendant says in his brief: “There is no specific legal authorities that we have found upon the prejudicial effect of the foregoing but it will appear from the standpoint of equity and justice that the effect upon the jury of a verdict of guilty in a similar case in the presence of the jury, the verdict being rendered by members of the same panel would have an influence upon the minds of the jury in the case.”

The record does not show that during the progress of this trial the court paused to receive a verdict of a jury drawn...