State v. Fordham

• Decision Date: 30 November 1904
• Court: North Dakota Supreme Court

101 N.W. 888

13 N.D. 494

STATE OF NORTH DAKOTA v. T. J. FORDHAM

Supreme Court of North Dakota

November 30, 1904

Appeal from District Court, Grand Forks county; Fisk, J.

Thomas J. Fordham was convicted of robbery. From an order granting a new trial, the state appeals.

Affirmed.

J. B Wineman, State's Attorney, and B. G. Skulason, Assistant State's Attorney, for respondent.

In filing an information the state's attorney is not confined to the offense mentioned in the complaint; he may file information for any offense covered by the allegation or growing out of the transactions set forth in the complaint or necessarily connected therewith. Section 7983, Rev. Codes 1899; State v. Rozum, 8 N.D. 548, 80 N.W. 477.

In criminal cases instructions should not be given to the jury unless founded upon some evidence that has been adduced at the trial. People v. Graham, 21 Cal. 261; People v. Sanchez, 24 Cal. 17; People v. Murphy, 47 Cal. 103; People v. Estrado, 49 Cal. 171; People v. Vasquez, 49 Cal. 560; People v. Turley, 50 Cal. 469; People v. Atherton, 51 Cal. 495; People v. Cummings, 57 Cal. 88; People v Hunt, 59 Cal. 430; People v. Gilbert, 60 Cal. 108.

Failure to charge, when no request is made, is not error. People v. Fice, 97 Cal. 459, 32 P. 531; State v Haynes, 7 N.D. 352, 75 N.W. 267; State v. Lawler, 28 Minn. 216, 9 N.W. 698; State v. Rosencrans, 9 N.D. 163, 82 N.W. 422; Thompson on Trials, sections 2338-2341.

Although the court did not define robbery, but stated that if the evidence showed that the prosecutor was knocked or thrown down, and his money taken from him by the defendant, this would constitute robbery. This was sufficient. Miller v. State, 80 Tenn. 223; Lanford v. State, 49 N.W. 766; People v. O'Brien, 26 P. 362; State v. Dooley, 57 N.W. 414; United States v. Mays, 1 Idaho, U.S. 763; Long v. State, 12 Ga. 293.

G. A. Bangs, for respondent.

A preliminary examination is a complete independent judicial investigation. State v. Haseldahl, 3 N.D. 36, 53 N.. W. 430; State ex rel. Styles v. Beaverstad, 12 N.D. 527, 97 N.W. 548; State ex rel. Durner v. Haegin, 85 N.W. 1046; People v. Annis, 13 Mich. 511; Yaner v. People, 34 Mich. 286; People v. Christian, 35 P. 1043; Ex parte Nicholas, 28 P. 47.

Information must charge the same offense as the complaint on preliminary examination. People v. McMillan, 18 N.W. 390; People v. Handley, 52 N.W. 1032; People v. Evans, 40 N.W. 473; O'Hara v. People, 3 N.W. 161; Brown v. State, 64 N.W. 749; People v. Christian, 35 P. 1043; People v. Howland, 44 P. 342; People v. Parker, 27 Cal. 537; People v. Wallace, 29 P. 950; Ex parte Baker, 25 P. 966; State v. Farris, 51 P. 772; Davis v. State, 22 S.W. 979; State v. Barnes, 3 N.D. 131, 54 N.W. 541.

It is a fundamental right of every person to be free from the expense, annoyance, humiliation and danger of a trial before a petit jury, save upon an accusation by a duly constituted tribunal based upon probable cause disclosed by oath or affirmation. Jones v. Robbins, 8 Gray 324; 2 Cooley's Blackstone, 306, bk. 4; 1 Wharton's Criminal Law, 152; State v. Barker, 12 S.E. 115; State v. Kingsley, 26 P. 1066; State v. Barnes, 3 N.D. 131, 54 N.W. 541; Art. 1, N.D. Const. sections 7, 8, 13 and 18.

The "right of trial by jury" and "due process of law" requires an indictment or presentment to adequately guard his right. Jones v. Robbins, supra; State v. Barnes, supra; In re Dolph, 28 P. 470; State v. Brett, 40 P. 873; State v. Bowser, 53 P. 179; State v. Little Whirlwind, 56 P. 820; State v. Barker, 12 S.E. 115.

After the filing of an information, arrest, arraignment and imprisonment or bail are required, by which one may be deprived of his liberty under a warrant based on information and belief. Section 18 Art. 1, Const. N.D.; Ex parte Burford, 3 Cranch (U.S.) 448, 2 L.Ed. 495; U. S. v. Collins, 79 F. 65; In re Way, 41 Mich. 299; Swart v. Kimball, 5 N.W. 635; People v. Swift, 59 Mich. 529; People v. Moore, 62 Mich. 496, 29 N.W. 80; Ex parte Dimmig, 15 P. 619; Ex parte Spears, 26 P. 608.

The information does not state facts constituting a public offense in this, that it does not allege an unlawful intent, or the animus furandi. U. S. v. Carll, 105 U.S. 611, 26 L.Ed. 1135; U. S. v. Simmons, 96 U.S. 360, 24 L.Ed. 819; U. S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Keck v. U.S. 172 U.S. 434; U. S. v. Hess, 124 U.S. 483, 31 L.Ed. 516; U. S. v. Britton, 107 U.S. 655, 27 L.Ed. 520; Blitz v. U.S. 153 U.S. 308, 14 S.Ct. 924; Moore v. U. S. 160 U.S. 268, 16 S.Ct. 294; Com. v. Bean, 14 Gray, 52; Com. v. Clifford, 8 Cush. 215; Mathews v. State, 4 Ohio St. 540; Com. v. Bean, 11 Cush. 414.

Felonious intent requires the same allegation and proof as in larceny. 2 Bishop's New Criminal Proc. 1007; Bishop's Directions and Forms, section 931; Sledge v. State, 26 S.E. 756; Mathews v. State. 4 Ohio St. 540.

Robbery is compound larceny and under an indictment for robbery the defendant may be found guilty of larceny. The indictment must contain the essential allegations of larceny. Haley v. State, 4 S.W. 746; People v. Nelson, 56 Cal. 77; People v. Jones, 53 Cal. 58; People v. Crowley, 100 Cal. 480, 35 P. 84; People v. Git, 34 P. 1080; People v. Ammerman, 50 Cal. 15; State v. Segermond, 19 P. 370.

It is the duty of the court to interpret the indictment and give its legal effect. It must clearly instruct the jury as to the law of the case. All the essential elements of the crime must be given. Territory v. Baca, 71 P. 460; State v. McCasky, 16 S.W. 511; McDow v. State, 39 S.E. 295; State v. Fulford, 32 S.E. 377; Bailey v. State, 30 S.W. 669; Putnam v. State, 16 S.W. 97.

The intent to deprive the owner of the property to convert it in bad faith to a use not to his advantage, in other words to steal it, is an essential element of robbery. 2 Bishop's New Crim. Law, 1162a; State v. O'Connor, 16 S.W. 510; State v. Woodward, 33 S.W. 14; Mathews v. State, 4 Ohio St. 540; Com. v. White, 133 Pa. 182, 19 A. 350, 19 A. S. R. 628; People v. Hughes, 39 P. 492.

OPINION

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 twenty-nine 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 is based said order, and set aside the sentence theretofore 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...