State v. Foster

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

105 N.W. 938

14 N.D. 561

STATE OF NORTH DAKOTA v. C. H. FOSTER

Supreme Court of North Dakota

November 24, 1905

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

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

Affirmed.

Geo. A Bangs, for appellant.

By a continuance for more than three days the magistrate lost jurisdiction and the commitment was void, there being no preliminary examination to support it. State v Barnes, 3 N.D. 131, 54 N.W. 541; State v. Weltner, 7 N.D. 522, 75 N.W. 779.

An information should charge the same offense as that of the complaint on preliminary examination. People v Cohen, 50 P. 20; People v. Crespi, 46 P. 863; State v. Wright, 91 N.W. 311; People v. Christian, 35 P. 1043; Brown v. State, 64 N.W. 749; Yaner v. People, 34 Mich. 286; Davis v. State, 22 S.W. 979; State v. Farris, 51 P. 772; Com. v. Linton, 2 Va. 205; section 7954, Rev. Codes 1899.

When an act is to be performed in fulfillment of a statutory requirement, Sunday will not be excluded and the act must be done on Saturday. Harrison v. Sager, 27 Mich. 476; Dale v. Lavigne, 31 Mich. 149; Vailes v. Brown, 27 P. 945; Peacock v. Reg., 93 E. C. L. 264; Ex parte Simkin, 105 E. C. L. 392; Rollin v. Overseers, 52 E. C. L. 71; Sheffer v. McGone, 47 F. 872; Herman v. U.S. 66 F. 721; Burr v. Lewis, 7 Tex. 76; Company v. Schroeder, 59 A. S. R. 25; Ex parte Dodge, 7 Cow. 147; Brown v. Wellington, 1 Sandf. 664; Weaver v. Lammon, 28 N.W. 905.

When an information is not filed at the next term at which it is triable, it should be dismissed. Section 403, Rev. Codes 1899; Bishop on Cr. Proc., sections 89, 92, 93.

The statute is mandatory and prosecution should have been dismissed. Ex parte Bull et al., 42 Cal. 196; People v. Staples, 27 P. 523 to 525; People v. Wickham, 48 P. 123; In re Esselborn, 8 F. 904; Cummins v. People, 34 P. 734; Jones v. Com., 19 Grat. 478; Bennett v. Sette, 27 Tex. 701; Wentzels v. People, 28 A. 694; Ex parte Two Calf et al., 9 N.W. 44; State v. Miller, 62 N.W. 238.

Unless defendant is brought to trial at next term at which information is triable after it is filed, prosecution should be dismissed, and this provision is mandatory, and state must establish good cause for the failure. People v. Morino, 24 P. 892; People v. Douglass, 34 P. 490; In re Begero, 65 P. 828; State v. Brodie et al., 35 P. 137; State v. Kuhn, 57 N.E. 106; Walker v. State, 15 S.E. 553; In re Garvey, 4 P. 758; In re McMicken, 18 P. 473; Ochs et al. v. People, 16 N.E. 662.

The court erred in restricting and limiting the cross-examination. Wigmore on Evidence, section 1368 and 1390; Greenlf. on Evidence, section 446; State v. Kent (Pancoast) 5 N.D. 516, 67 N.W. 1052; People v. Gallagher, 35 P. 80; Territory v. OHare, 1 N.D. 30, 44 N.W. 1003; People v. Tice, 30 N.E. 494, 15 L. R. A. 669; People v. Casey, 72 N.Y. 394; People v. Irving, 95 N.Y. 541; State v. Rozum, 8 N.D. 548, 80 N.W. 477; O'Donnell v. Segar, 25 Mich. 371; Bennett v. Eddy et al., 79 N.W. 481; Thompson v. Richards, 14 Mich. 172; Chandler v. Allison, 10 Mich. 460; 3 Enc. of Evidence, 809 to 812; People v. Cole, 43 N.Y. 508; Lichtenberg et al. v. Mair, 5 N.W. 455; Beers v. Payment, 54 N.W. 886; Jones on Evidence, section 437; Zacher et al. v. Carpeles et al., 50 N.W. 373; People v. Westlake, 57 P. 465.

The state relied wholly upon circumstantial evidence and the court should instruct the jury thereon. People v. Scott, 37 P. 335; Hanks v. State, 56 S.W. 922; Polanke v. State, 28 S.W. 541; Williard v. State, 9 S.W. 358; Hart v. State, 23 S.E. 831; Crowell v. State, 6 S.W. 318; Jones v. State, 31 S.E. 574; Lopez v. State, 40 S.W. 594; Hamilton v. State, 22 S.E. 528; State v. Brady, 91 N.W. 801, 97 N.W. 62; 1 Blashfield Inst. Juries, section 213, 12 Cyc. 633; 12 Am. & Eng. Enc. Law (1st Ed.) 879; Underhill on Cr. Ev. 10; Rapalje on Larceny, section 258; State v. Maxley, 14 S.W. 969; Territory v. Lermo, 46 P. 16; McCamant v. State, 37 S.W. 437.

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

Jurisdiction of a justice in a criminal case is not lost by adjourning the cause for more than three days without the consent of the parties. People v. Van Horn et al., 51 P. 538; State v. Valure, 64 N.W. 280.

"A term of the district court," as used in section 7982, Rev. Codes 1899, means an actual session, having a place, time, judge and jury at which the defendant can be tried. Jones v. Commonwealth, 19 Gratt. 478; Clark v. Commonwealth, 29 Pa. St. (5 Casey, 129); State v. Boucher, 8 N.D. 277, 78 N.W. 988; Com. v. Brown, 11 Phila. 370; State v. Tough, 12 N.D. 425, 96 N.W. 1025; State ex. rel. Adams v. Larson, 12 N.D. 474, 97 N.W. 537.

It is within the discretion of the trial judge to limit the cross-examination, and he is not bound to wait for objection or request from the state. Gilliland v. State, 42 N.E. 238; Payne v. Goldbach, 42 N.E. 642; Bailey v. Bailey, 63 N.W. 341; Hamilton et al. v. Miller, 26 P. 1030, Commonwealth v. Leyden, 113 Mass. 452; Wallace v. Tauton, 119 Mass. 91; Gardner v. Kellogg, 23 Minn. 463; Ellis v. Pervis, 10 N.Y.S. 628; Thompson on Trials, section 352, and cases cited; Abbott's Criminal Trial Brief, page 319, and cases cited; Plew v. State, 35 S.W. 366; Buck v. Maddock, 167 Ill. 219; Pigg v. State, 145 Ind. 560; State v. Brown, 100 Iowa 50; People v. Harrison, 93 Mich. 594; State v. Miller, 93 Mo. 263; State v. Southern, 19 So. 668.

Restriction or enlargement of the scope of cross-examination as to credibility will not be reviewed except for abuse. Birmingham Fire Ins. Co. v. Pulver, 18 N.E. 804; People v. Kindra, 60 N.W. 458; State v. Ward, 73 Iowa 534, 35 N.W. 617; Lumehan v. State, 115 Ala. 471; State v. Ross, 21 Iowa 467; State v. Refefferle, 36 Kan. 90; State v. May, 11 S.E. 440; Commonwealth v. Hales, 10 Cush. 530; People v. McEran, 121 Mich. 79; Jones on Evidence, 827; Wigmore on Evidence, 944, 983; Rice on Criminal Evidence, 330, 334; Greenleaf on Evidence, 431.

If there is direct evidence that defendant admitted his guilt, the court may refuse instruction based upon the theory that the evidence is purely circumstantial. Blashfield on Instructions to Juries, 323, and cases cited; Tatum v. State, 85 N.W. 40; Barrow v. State, 80 Ga. 191; Cotton v. State, 87 Ala. 75; Rains v. State, 88 Ala. 91; Upchurch v. State, 39 S.W. 371; State v. Donnelly, 130 Mo. 642; Weatherby v. State, 29 Tex.App. 278; Wilson v. State, 29 So. 569; People v. Lem Deo, 132 Cal. 199; Thomas v. State, 62 S.W. 919.

Only where the inculpatory evidence is wholly circumstantial is an instruction as to its weight required. Smith v. State, 28 Tex.App. 309; Self v. State, Id. 98; Jones v. State, 31 Tex.App. 177.

Where there is direct evidence sufficient to convict, an instruction on circumstantial evidence is not required. Welch v. State, 27 So. 307; Purvis v. State, 14 So. 268; Vaughan v. State, 20 S.W. 588; People v. Burns, 53 P. 1096; State v. Gartrell, 71 S.W. 1045; State v. Calder, 59 P. 903; People v. Kaatz, 3 Park Cr. 129; Barnards v. State, 12 S.D. 431; Jackson v. State, 62 S.W. 914; 12 Cyc. Law & Pro. 634.

Proof of confession by defendant renders a charge on circumstantial evidence unnecessary. Green v. State, 12 So. 416, 15 So. 242; Perry v. State, 36 S.E. 781; Langdon v. People, 24 N.E. 874; State v, Robinson, 23 S.W. 1066; Robert v. State, 70 S.W. 423.

OPINION

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...