State v. Fordham

• Decision Date: 30 November 1904
• Citation: 101 N.W. 888,13 N.D. 494
• Parties: STATE v. FORDHAM.
• Court: North Dakota Supreme Court

13 N.D. 494

101 N.W. 888

STATE

v.FORDHAM.

Supreme Court of North Dakota.

Nov. 30, 1904.

Syllabus by the Court.

1. An information for the crime of robbery, as defined in section 7117, Rev. Codes 1899, is sufficient to charge a taking with intent to steal the property taken when it charges that the defendant “unlawfully, wrongfully and feloniously * * * did take and carry away,” etc.

2. It is the duty of the trial court to charge the jury in direct or equivalent terms that, to constitute robbery, the taking of the property must have been with intent to steal it, even though not requested so to do, such intent being a substantive element of this crime.

3. The record before the committing magistrate examined, and held to show that the defendant was given a legal preliminary examination on the crime for which an information was filed against him.

4. The word “wrongful,” as used in the statute defining the crime of robbery, is to be construed as synonymous in meaning with the word “felonious.”

Appeal from District Court, Grand Forks County; C. J. Fisk, Judge.

Thomas J. Fordham was convicted of robbery. From an order granting a new trial, the state appeals. Affirmed.J. B. Wineman, State's Atty., and B. G. Skulason, Asst. State's Atty., for the State. G. A. Bangs, for respondent.

MORGAN, J.

The defendant was convicted of the crime of robbery from one Bert Click, and sentenced to three years in the penitentiary. Prior to entering a plea of not guilty, he moved to set aside the information upon the alleged ground that he had not been given a preliminary examination as provided by law for the offense for which he had been informed against. This motion was denied by the court. The information filed against him is as follows, so far as charging the offense is concerned: “That at said time and place the said T. J. Fordham violently, wrongfully, and unlawfully did make an assault upon the person of one Bert Click, and then and there unlawfully, wrongfully, and feloniously, accomplished by means of force and fear, did take and carry away from the person and possession of the said Bert Click, the owner thereof, against the will of the said Bert Click, a certain sum of money, to wit, five dollars in silver coin, lawful money of the United States, a more particular description whereof is to this informant unknown, and of the value of five dollars; also one pocket knife, the property of said Bert Click, of the value of one dollar; also one pair of link cuff buttons, the property of the said Bert Click, of the value of one dollar; also one engineer's license and engineer's book, property of the said Bert Click, of the value of one dollar; and therein did commit the crime of robbery. This contrary,” etc. The defendant demurred to the information upon the ground, among others, that the same did not state facts sufficient to constitute a public offense. The demurrer was overruled. After trial, and before sentence, the defendant moved in arrest of judgment upon various grounds, and the motion was denied. Thereafter the defendant moved for a new trial upon the minutes and records of the court and upon a statement of the case to be settled. This motion contains 29 specific grounds which were urged as errors warranting the granting of a new trial, but these alleged grounds may be summarized as follows: (1) The refusal to set aside the information upon the alleged ground that no preliminary examination was given to the defendant for the offense for which he was informed against; (2) the overruling of the demurrer interposed to the information; (3) errors in admitting certain evidence; (4) errors in instructions given to the jury and in refusing certain requested instructions. The court granted this motion for a new trial by a general order, not specifying the grounds upon which it based said order, and set aside the sentencetheretofore imposed. The state has appealed from said order, and specifies as error the granting of that order.

If all of the defendant's exceptions were without merit, it was error to grant a new trial. The first error complained of is that the information should have been set aside for the alleged reason that no preliminary examination was given to the defendant for the offense charged in the information, and the defendant has for that reason not been convicted by due process of law. The record shows that the defendant, with four others, was brought before a justice of the peace, charged in the complaint with the crime of robbery, committed by them by taking $15.40, two knives, and shirt studs from four persons named therein, of whom Bert Click was one. The contention is that the crime charged by the information is a different crime from the one charged in the complaint before the committing magistrate. In the complaint before the magistrate and in the information the crime charged is robbery from the person. In justice court five persons were charged with jointly robbing four persons. In the information the defendant is separately charged with robbery committed by the same acts that he was charged with in the complaint before the magistrate in connection with the others and for which charge he had a regular preliminary examination, and was regularly held to appear in the district court. The charge in the information is not different, as a matter of law, from the one contained in the complaint in justice court. A joint charge includes a separate charge against each person jointly charged. Defendant was not informed against by the state's attorney pursuant to an examination by him made under section 7983, Rev. Codes 1899. The information followed and was based exclusively upon a regular preliminary examination held by a committing magistrate pursuant to statute. We are not, therefore, called upon to consider the contention of the defendant that said section 7983 is unconstitutional so far as it authorizes the state's attorney to file an information against a person for a higher or different offense from that charged against him before the committing magistrate after an inquiry and examination by him of all the facts of the case. We have no hesitancy in holding that the defendant has had a preliminary examination for the identical offense for which an information was filed against him. Conceding, however, that the two offenses are not identical, as charged in the complaint and in the information, still the motion to quash was properly denied under the previous decision of this court in construing section 7983. In State v. Rozum, 8 N. D. 548, 80 N. W. 477, the court said: “It is clear from these provisions that in filing an information the state's attorney is not limited strictly to the offense named in the complaint. How far he may depart therefrom we are not now called upon to decide. To this extent we are clear: The state's attorney may file an information for any offense covered by the allegations in the complaint, or growing out of the transaction therein set forth, or necessarily connected therewith. * * * In the case at bar the added allegation covered no further criminal act or criminal purpose on the part of the accused. * * * There was therefore no possibility that the accused could be surprised or prejudiced by reason of the added allegation, and under our statutes it was clearly proper.” The offense charged in the complaint...