State v. Colohan
| Decision Date | 27 June 1939 |
| Docket Number | Cr. 165 |
| Citation | 286 N.W. 888,69 N.D. 316 |
| Court | North Dakota Supreme Court |
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 and Chauncey B. Simons, for appellant.
An act, the body of which is broader than its title, must be annulled so far as it transcends its title. Divet v. Richland County, 8 N.D. 65, 76 N.W. 993.
If a restrictive title is chosen the act must be kept within it. Mitchell v. Colorado Mill. & Elevator Co. 55 P. 739.
No penalty can validly be imposed for an act other than those included within or suggested by the title. 59 C.J. 814; Com. v. Adams, 22 Pa. Dist. R. 174, 40 Pa. Co. Ct. 585; State v. Young, 47 Ind. 150; People v. Beadle, 60 Mich. 22, 26 N.W. 800; Quinn v. People, 123 Ill. 333, 15 N.E. 46; Badenoch v. Chicago, 222 Ill. 71, 78 N.E. 31; People v. Stevenson, 272 Ill. 538, 113 N.E. 939.
A public highway is a public place and the streets are public highways and therefore are public places. Ellis v. Archer, 38 S.D. 285, 161 N.W. 192; State v. Moriarty, 74 Ind. 103; State v. Stevens, 36 N.H. 59.
A plea either by or for the defendant, in a proceeding involving the deprivation of life or liberty, cannot be dispensed with and a conviction cannot be sustained in the absence of a plea. 16 C.J. 387; United States v. Aurandt, 107 P. 1064, 27 L.R.A.(N.S.) 1181.
It is an absolute essential act that a plea must be entered by the defendant or by the court for the defendant and that the record must so disclose. Crain v. United States, 162 U.S. 625, 40 L. ed. 1097, 16 S.Ct. 952; State v. Stepp, 48 N.D. 566, 185 N.W. 812.
A proviso is a clause making what precedes conditional on what follows. 50 C.J. 834.
Alvin C. Strutz, Attorney General, Ralph F. Croal, State's Attorney, and Odin J. Strandness, for respondent.
The provisions of § 61 of the state Constitution should receive reasonable and not technical construction and no matter should be held to invalidate a statute so long as such matter related exclusively to the same subject, or was germane or auxiliary thereto. Goodsill v. Woodmansee, 1 N.D. 246, 46 N.W. 970; State v. McEnroe, 68 N.D. 615, 283 N.W. 57.
The constitutional provision which provides that "No bill shall embrace more than one subject which shall be expressed in its title" is not intended to forbid or to prevent including in the bill such means as are reasonably adapted to secure the object indicated by the title. State ex rel. Gaulke v. Turner, 37 N.D. 635, 164 N.W. 924; Johnson v. People, 83 Ill. 431.
The title of an act is not required to be an index of its subject matter. State v. Boehm, 92 Minn. 374, 100 N.W. 95; Cessna v. Otho Development Co. 35 S.D. 557, 153 N.W. 380; Lien v. Norman County, 80 Minn. 58, 82 N.W. 1094.
The legislature may delegate to municipalities the power to legislate against crimes already denounced by the state law. Brennan v. Connolly, 207 Mich. 35, 173 N.W. 511; State v. Lee, 29 Minn. 445, 13 N.W. 913.
The charge of the court must be considered as a whole and the parts thereof which relate to the same subject matter must be considered together. State v. Rice, 39 N.D. 559, 168 N.W. 369; State v. Finlayson, 22 N.D. 233, 133 N.W. 298.
The defendant was convicted of the crime of "Operating a Motor Vehicle While under the Influence of Intoxicating Liquor," under the provisions of § 2 and § 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 § 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...
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