State v. Empting

• Decision Date: 25 November 1910
• Citation: 21 N.D. 128,128 N.W. 1119
• Parties: STATE v. EMPTING.
• Court: North Dakota Supreme Court

21 N.D. 128

128 N.W. 1119

STATE

v.EMPTING.

Supreme Court of North Dakota.

Nov. 25, 1910.

Syllabus by the Court.

Whether a demand for a bill of particulars in a criminal case is ever permissible in this state is not decided, but, conceding that it may be demanded, it is a matter that is always within the discretion of the trial court, and such discretion will not be interfered with on appeal, unless it appears that there has been a manifest abuse thereof.

The allowance of answers to leading questions or questions which assume facts not proven is strictly discretionary with trial judges; and, unless there appears a clear abuse of that discretion, appellate courts will not disturb their rulings.

Whether a verdict in a criminal case is against the evidence or not will not be reviewed on appeal, unless the motion for a new trial specifies as error that the verdict is against the evidence, and failure by the state to object to the motion for a new trial when made without any specification is not a waiver of the right to raise the question in this court.

Objections to questions and motions to strike out answers considered, and the rulings of the trial court sustained.

Appeal from District Court, Burleigh County; Winchester, Judge.

William Empting was convicted of keeping a common nuisance, and he appeals. Affirmed.

Newton & Dullam, for appellant. Andrew Miller, Atty. Gen., Alfred Zuger, C. L. Young, and F. C. Heffron, Asst. Attys. Gen., for the State.

MORGAN, C. J.

The information charges defendant with keeping and maintaining a nuisance by the sale and keeping for sale of intoxicating liquors. There is no specific place set forth in the information where the nuisance was kept, but it alleges only that it was located within the city of Bismarck, in Burleigh county, N. D. The defendant demanded a bill of particulars showing the specific place or building where the nuisance was kept, the kind of liquors sold, when and to whom sold. The demand was not verified. The trial court denied the demand, and the defendant excepted.

The appellant claims that this ruling was prejudicially erroneous, especially so far as the demand for the precise location of the nuisance is concerned. As to the particulars demanded, except the location, the appellant practically concedes that they cannot properly be demanded. The demand states that the defendant cannot understandingly prepare for trial without this specific information on account of the indefiniteness of the allegations of the information. Conceding, without deciding expressly, that a refusal to compel the state to furnish a statement of the precise location of the alleged nuisance may under some circumstances be erroneous and prejudicial, we are satisfied that the refusal was not error in this case. The defendant had a preliminary examination at which the desired information could have been secured. Further, the demand was not verified. Further, there is nothing in the record of the trial showing that any prejudice followed or could follow from the ruling. There is no statute in this state regulating or providing for a bill of particulars in criminal cases. The statute provides that the information must be direct and certain, as to the party and crime charged, and that the offense must be charged in such a manner as to enable a person of common understanding to know what is intended. The particular circumstances need not be alleged unless necessary to constitute a complete offense. Section 9849, Rev. Codes 1905. It has been held in this state that a specific description of the place where a nuisance is alleged to have been maintained need not be set forth in the information, except in cases where the state claims an abatement of the nuisance. It is not necessary to particularly describe the place where punishment of the keeper only is sought. Said section, therefore, has no application to informations in cases like the one under consideration. In view of the fact that the information conformed to the statutory requirements, and of the preliminary examination, and that the demand was not under oath, we are satisfied that the trial court did not abuse the judicial discretion vested in it in denying the demand for such particulars, even conceding that trial courts may properly under some circumstances grant such request.

We do not hold in this case that the fact of having had a preliminary examination always necessarily constitutes a waiver of the right to demand a bill of particulars, nor that the failure to verify the request or demand is in all cases fatal to the granting of the demand. But these matters, considered in connection with the evidence at the trial, conclusively show that there was no abuse of discretion in denying the request in this case. In some states the privilege is not ever allowed in criminal cases. Where allowable, it is not subject to review, unless the judicial discretion of the trial court has been clearly abused. In Mathis v. State, 45 Fla. 46, 34 South. 287, there is an exhaustive consideration of this question and a review of the authorities. In that case it is said: “Such an application or motion, however, is not founded upon a legal right, and is a matter resting within the sound judicial discretion of the court, depending entirely upon the nature and circumstances of each particular case as they appear to the court before whom the trial is had, and the refusal of the trial judge to grant such motion will not be disturbed or reversed by an appellate court unless there was an abuse of such discretion. * * * We will add that under the system of criminal pleading prevailing in this state, the forms of indictment, and information used, we can conceive of but few criminal cases wherein it would be necessary to order a bill of particulars.” In Commonwealth v. Wood, 1 Gray (Mass.) 11, the court said: “But, although such is the uniform practice, specifications cannot be claimed as a matter...