State v. Foster

• Decision Date: 24 November 1905
• Citation: 14 N.D. 561,105 N.W. 938
• Parties: STATE v. FOSTER.
• Court: North Dakota Supreme Court

14 N.D. 561

105 N.W. 938

STATE

v.FOSTER.

Supreme Court of North Dakota.

Nov. 24, 1905.

Syllabus by the Court.

The adjournment of a preliminary examination by a justice of the peace for more than three days, in violation of section 7954, Rev. Codes 1899, is not invalid, so as to render the subsequent examination a nullity, unless it has actually prejudiced the defendant, or has tended to his prejudice in respect to a substantial right.

The grounds for setting aside an information enumerated by section 8082, Rev. Codes 1899, are exclusive of all others, and do not include the failure to file an information at the term of court succeeding the defendant's commitment.

A regular term of court, within the meaning of section 8497, Rev. Codes 1899, which, in the absence of good cause shown, requires the dismissal of a prosecution when an information is not filed at the next regular term after the defendant's commitment, means a jury term, as distinguished from a statutory term without a jury.

An opportunity to cross-examine is a matter of right, but the latitude and extent of the cross-examination rests largely in the discretion of the trial judge. The limitation imposed in this case does not show an abuse of discretion.

It is not error to fail or refuse to charge the law as to circumstantial evidence, when the state's case rests in part upon direct evidence.

There is no legal distinction, so far as the weight and effect to be given to it is concerned, between circumstantial and direct evidence, and it is not error to refuse a request which disparages it as a species of evidence.

The verdict in this case rests upon evidence of a substantial nature, and it was not error to refuse a new trial because of its alleged insufficiency.

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

C. H. Foster was convicted of larceny, and appeals. Affirmed.

George A. Bangs, for appellant. C. N. Frich, Atty. Gen., and J. B. Wineman, State's Atty., for the State.

YOUNG, J.

The defendant was convicted of the crime of larceny upon an information filed by the state's attorney of Grand Forks county. A motion for new trial was overruled, and he has appealed from the order and judgment.

The first error assigned is the refusal of the trial judge to grant a motion to set aside the information, which was upon two grounds: (1) That he had no preliminary examination before the information was filed; and (2) that the information was not filed at the next term of the district court after his commitment. The motion was properly denied. The claim that there was no preliminary examination is based upon an alleged loss of jurisdiction by the examining magistrate. It is shown that on September 22, 1904, the state's attorney applied for a continuance because of the absence of a material witness, and the justice granted the request over defendant's objection, and adjourned the examination until September 26th, a period of four days. The 25th was Sunday. The examination was continued on the 26th, over defendant's objection to the jurisdiction, and resulted in the defendant's being committed for trial. Counsel for defendant claims that the justice lost jurisdiction by the adjournment, and that the subsequent examination was therefore a nullity. He relies upon section 7954, Rev. Codes 1899, which reads as follows: “The examination must be completed at one session unless the magistrate, for good cause, adjourns it. The adjournment cannot be for more than three days at each time, nor more than fifteen days in all, unless by consent, or on the motion of the defendant.” The adjournment was for four days, if Sunday, the 25th, be included, and in that event was beyond the limit fixed by the statute. It is not necessary to determine whether Sunday should be excluded; for, assuming that the adjournment was beyond the statutory limit, still it does not follow that the justice lost jurisdiction to proceed upon the adjourned day. No prejudice is shown to have resulted to the defendant because of the adjournment, neither did he lose any substantial right. It was, in that event, a mere mistake or error in the proceedings, which, under the terms of section 8423, Rev. Codes 1899, did not render it void. That section provides that “neither a departure from the form or mode prescribed in this code in respect to any pleadings or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.” It is apparent that the defendant's claim that he has not had a preliminary examination is without merit. The Supreme Court of California, under a statute similar to section 7954, and upon a like state of facts, reached the same conclusion, and without reference to the statutory rule of interpretation contained in section 8423 by which we are governed. A defendant who is aggrieved by the unwarranted adjournment of his hearing by a committing magistrate is not remediless. He may, upon habeas corpus, either secure his discharge or a speedy examination. See section 8662, subd. 2, and section 8664, Rev. Codes 1899.

The second ground of the motion, the alleged failure to file an information at the next regular term of court succeeding his commitment, is not one of those enumerated by section 8082, Rev. Codes 1899, as grounds upon which an information may be set aside. In State v. Tough, 12 N. D. 425, 96 N. W. 1025, we held that the grounds enumerated by this section are exclusive of all others, and so the courts generally hold under similar statutes. See cases cited in opinion, page 429 of 12 N. D., page 1026 of 96 N. W. The several grounds named in the statute go to the validity of the information. The defendant's objection goes, not to its validity, but to an alleged failure on the part of the state to proceed with the prosecution within the time required by statute. The remedy of one so aggrieved is not by an attack upon the information.

Following the denial of the above motion, counsel for defendant moved to dismiss the prosecution and discharge the defendant upon the second ground urged in his attack upon the information, to wit, that no information was filed against him at the next regular term of court succeeding his commitment. This motion was also denied, and the ruling is assigned as error. In our opinion no error was committed. The motion is based upon section 8497, Rev. Codes 1899, which provides that “the court, unless good cause to the contrary is shown, must order the prosecution to be dismissed: * * * (1) When a person has been held to answer for a public offense, if an information is not filed or an indictment found against him at the next regular term of the district court. * * *” The record shows that the defendant was committed on September 26, 1904, and the information was filed on December 12, 1904, at the first jury term of court held after his commitment. It is true section 403, Rev. Codes 1899, provides for a term of court in Grand Forks county for each month in the year except the months of August and September, commencing on the first Tuesday of each month. But these terms are not made regular jury terms by the statute. The same section requires the calling of a jury for at least two terms each year, and with this exception provides that a jury shall not be called for any term unless, in the opinion of the judge, there is sufficient business to demand a jury. No jury was called for the October or November terms, and the term at which the information was filed was the first jury term held after the defendant was committed. We are of opinion that a regular term of court, within the meaning of section 8497, means a court which is equipped with a jury for the trial of cases, and not a mere statutory term without a jury. This section was in force long before the so-called statutory terms were provided for, and that was its meaning then, and must be held to be its meaning now. This section requires two jury terms at least to be held each year in Grand Forks county. If they are held, it cannot be said that a defendant is denied his constitutional right to a speedy trial. If without good cause the presiding judge should fail or neglect to call a jury for these two terms, a different question would arise, and one which we need not discuss, for there has been no such neglect of duty, and the defendant predicates no rights upon the fact that a jury was not called at the October and November terms. His position is that each statutory term is “a regular term,” a position which, in our opinion, is not tenable.

Counsel for appellant also assigns error upon the court's action in limiting his cross-examination of the prosecuting witness Perry. We have examined the record upon this point and find no abuse of discretion. An opportunity to cross-examine is a matter of right, but the latitude and extent of the cross-examination rests largely in the discretion of the presiding judge, and he may place “a...