State v. Gielen

• Decision Date: 01 November 1926
• Docket Number: No. 5165.,5165.
• Citation: 210 N.W. 971,54 N.D. 768
• Parties: STATE v. GIELEN.
• Court: North Dakota Supreme Court

54 N.D. 768

210 N.W. 971

STATE

v.GIELEN.

No. 5165.

Supreme Court of North Dakota.

Nov. 1, 1926.

Syllabus by the Court.

In the instant case the defendant was convicted of engaging in the liquor traffic as a second offense, and appeals from the judgment of conviction. For reasons stated in the opinion, it is held:

(a) That no prejudicial error was committed in permitting the information to be amended by connecting an error made in the original information in the legal description of the premises where it is charged that the offense was committed.

(b) That certain objections on the part of the defendant to the admission of evidence were properly overruled.

(c) That certain instructions given to the jury were not prejudicial to the defendant, but in fact tended to place upon the prosecution a greater burden than the law required.

Following State v. Webb, 36 N. D. 235, 162 N. W. 358, it is held:

(a) That in a prosecution for violation of the state prohibitory law as a second offense, the former conviction is not a part or ingredient of the offense charged, but is a matter which pertains only to the extent of the punishment to be imposed.

(b) That in the instant case the trial court was correct in denying defendant's motion in arrest of judgment, based on the ground that the information did not charge the former conviction with sufficient particularity.

Additional Syllabus by Editorial Staff.

In prosecution for second violation of prohibitory liquor law, where defendant's counsel agreed certified copy of former conviction might be offered as exhibit, receiving such copy, previously identified by clerk of court in which conviction was had, as correct, over objection that it was not properly certified and that it did not show what time alleged offense was committed, was not error.

Charge as to what jury was required to find to convict for second violation of prohibitory law, and to consider evidence in reference to whether it was second offense to determine whether defendant was guilty of felony, held proper.

Charge that if offense of violating prohibitory law was committed in certain county within time specified by court, to convict, although exact place to a nicety within such county was not proved, was not error.

Appeal from District Court, Eddy County; Fred Jansonius, Judge.

John M. Gielen was convicted of engaging in liquor traffic as second offense, and he appeals. Affirmed.N. J. Bothne, of New Rockford, for appellant.

Geo. F. Shafer, Atty. Gen., and Edgar P. Mattson, State's Atty., of New Rockford, for the State.

Statement.

COLE, District Judge.

The above-entitled cause came on for trial in the city of New Rockford, Eddy county, N. D., on the 6th day of November, 1925, the defendant having theretofore entered a plea of not guilty to the offense charged. The jury was impaneled, a trial had, and a verdict of guilty found by the jury, and thereafter the defendant was duly sentenced by the presiding judge to serve a term of 18 months in the penitentiary. After the selection of the jury for the trial of the defendant, the state's attorney made the following statement:

“The information in this case was dictated to a stenographer, and through some error on the part of the stenographer or on my part checking it over, I find that the description is not correct. The information reads range 64, instead of range 65. The number of the range should be 65, and we ask leave at this time to amend the information and move the court to change that description from range 64 to range 65.”

The attorney for the defendant made the following statement:

“Note my objection at this time. At this time the defendant objects to the amendment or any amendment of the information at this stage of the proceedings, on the ground and for the reason that the amendment sought charges the alleged offense as having been committed in another place, to which charge the defendant has not had an opportunity to plead; also, on the ground that this amendment comes too late, the defendant having been arraigned before this court and having pleaded to the specific charge in the information and the trial having already proceeded, the jury having been duly impaneled and sworn, and the state having made its opening statement to the jury, and the defendant having been put in jeopardy.

The Court; I will allow the amendment. It seems to be more of a clerical error. If the defendant wants to plead again he may plead again to the information as amended. If the defendant wants to plead he may. You may proceed.”

The state's attorney then called a witness and proceeded, after the witness was sworn, with the examination and continuation of the trial. A little farther on in the proceedings and during the examination of a witness, the attorney for the defendant made the following statement:

“I want to note another objection to the amendment of that criminal information. I did not discover it until now. The defendant also objects to the amendment of the criminal information in this case at this time on the ground that the criminal complaint in this court, on the preliminary hearing of this defendant, and upon which alleged crime he was bound over to the district court, and now tried in this court, alleges and states that the crime was committed on the south half of section 9 and the southeast quarter of section 8, township 148, range 64; that the amendment of the criminal information at this time is a variance between the crime charged and the criminal complaint in justice court. I did not discover that until now.

The Court: Inasmuch as the search warrant reads range 64, the search was made on section 8 and section 9, township 148, range 65, or inasmuch as the records show-the preliminary records show-that the defendant waived a preliminary hearing and did not take advantage of any defect that might exist in the criminal complaint in justice court, the amendment will be allowed to stand. I will allow the amendment.”

Then the attorney for the defendant made the following statement:

“The defendant also objects to the amendment of the criminal information on the ground that the defendant has had no opportunity for a preliminary examination in justice court upon this specific charge now made against him.

The Court: Overruled.”

Further on, during the examination of witnesses, the defendant's attorney made the following statement:

“For the purpose of the record I want it understood that the examination and all proceedings and all testimony in this case is taken subject to my objection as to the amendment of the information in this case.

The Court: The record will so show. It will be overruled.”

The criminal information as amended and allowed by the court and upon which the prosecution was conducted in the district court reads as follows, after the title of the action:

“To the District Court in and for said County:

Edgar P. Mattson, state's attorney in and for the said county of Eddy and state of North Dakota, informs this court that heretofore, to wit, on the 4th day of April, A. D. 1925, in the county of Eddy and state of North Dakota, John M. Gielen, late of the county of Eddy and state aforesaid, did commit the crime of engaging in the liquor traffic as a second offense, committed in the manner following, to wit:

That at the said time and place in a certain dwelling house and certain outhouses and other places on the south half (S. 1/2) of section nine (9) and the southeast quarter (S. E. 1/4) of section eight (8) in township one hundred forty-eight (148), range sixty-four (64), the said defendant, John M. Gielen, did willfully, unlawfully, and feloniously own and possess intoxicating liquor intended for use as a beverage, which said intoxicating liquor consisted of beer. And that at the said time and place, the said defendant did keep, maintain, and possess utensils, contrivances, machines, and compounds intended or designed for use in the manufacture of intoxicating liquor for beverage purposes, which utensils, contrivances, machines, and compounds were still, coil, filter, vessels, and containers.

This against the peace and dignity of the state of North Dakota and contrary to the form of statute in such cases made and provided, * * *”

-which was duly verified and upon which information the names of witnesses for the prosecution were entered.

In the information, the following is contained: “Did commit the crime of engaging in the liquor traffic as a second offense, committed in the manner following, to wit.” At the time that the state's attorney offered in evidence the record of the former conviction of the defendant, the attorney for the defendant made the following objection:

“Let me note this objection. The defendant objects to the introduction of this exhibit in evidence on the ground that no foundation has been laid for its introduction; also, on the further ground that it does not state in this exhibit what time the offense was committed, for which the defendant was convicted in Wells county, and it is objected to as incompetent for that reason.

The Court: Overruled. It will be received.”

At no time during the trial or the proceedings thereafter did the defendant by act or statement waive any of his objections. The state produced in court the clerk of court of Wells county, a Mr. Weiss, with the record of the former conviction of the defendant in this case, and a certified copy thereof, having in his hand at the time of testifying the original record of the county court of Wells county, wherein the original conviction or prior conviction was had. The defendant's attorney was asked specifically if he objected to the certified copy, the following taking place between the state's attorney, the court, and the attorney for the defendant, in reference thereto: The state's attorney said: “If the court please, we would like to substitute a certified copy of this original judgment, so that Mr. Weiss can take the original back with him to Fessenden and return...