State v. Gottlieb

• Citation: 129 N.W. 460,21 N.D. 179
• Decision Date: 30 December 1910
• Court: United States State Supreme Court of North Dakota

129 N.W. 460

21 N.D. 179

THE STATE OF NORTH DAKOTA v. W. H. GOTTLIEB

Supreme Court of North Dakota

December 30, 1910

Appeal from County Court, Wells county; Alois Wartner, J.

From a judgment of conviction for maintaining a common nuisance defendant appeals.

Reversed and a new trial ordered.

Judgment reversed and a new trial ordered.

John O Hanchett, for appellant.

A criminal complaint sworn to on knowledge is essential to jurisdiction of a criminal action. People v Heffron, 53 Mich. 527, 19 N.W. 170; Bishop, Crim. Proc. chaps. 716-719; Com. ex rel. Parker v. Certain Lottery Tickets, 5 Cush. 369; Brown v. Kelley, 20 Mich 27; People ex rel. Hackett v. Wayne Circuit Judge, 36 Mich. 334; Swart v. Kimball, 43 Mich. 451, 5 N.W. 635; Badger v. Reade, 39 Mich. 774; People ex rel. Van Valkenburgh v. Recorder of Albany, 6 Hill, 429; Proctor v. Prout, 17 Mich. 473; State ex rel. Poul v. McLain, 13 N.D. 368, 102 N.W. 407; State ex rel. Register v. McGahey, 12 N.D. 544, 97 N.W. 865, 1 A. & E. Ann. Cas. 650, 14 Am. Crim. Rep. 283.

Certificate of a public officer is evidence only when made so by law. Billingsley v. Hiles, 6 S.D. 445, 61 N.W. 687; Sykes v. Beck, 12 N.D. 242, 96 N.W. 844.

John A. Layne, State's Attorney, Andrew Miller, Attorney General, C. L. Young, Assistant, for respondent.

Provision that preliminary examinations in county courts are not necessary is constitutional. State v. Krohne, 4 Wyo. 347, 34 P. 3; State v. Brett, 16 Mont. 360, 40 P. 873; Hurtado v. California, 110 U.S. 534, 28 L.Ed. 238, 4 S.Ct. 111, 292; Hallinger v. Davis, 146 U.S. 314, 36 L.Ed. 986, 13 S.Ct. 105; Swart v. Kimball, 43 Mich. 443, 5 N.W. 635; State v. Boswell, 104 Ind. 541, 4 N.E. 675, 5 Am. Crim. Rep. 166; Re Humason, 46 F. 388; State v. Kelm, 79 Mo. 515; State v. Rozum, 8 N.D. 548, 80 N.W. 477.

Giving bail waives irregularity in the complaint. Re Cummings, 11 Okla. 286, 66 P. 332; State v. Barr, 54 Kan. 230, 38 P. 289; State v. Longton, 35 Kan. 375, 11 P. 163.

State's attorney can file information when supported by affidavit. State v. Rozum, 8 N.D. 548, 80 N.W. 477; State v. Stevens, 19 N.D. 249, 123 N.W. 888.

Evidence of payment of a special United States revenue tax may be shown by copy of records in collector's office. State v. Gorham, 65 Me. 270; State v. Teahan, 50 Conn. 92; State v. Intoxicating Liquors, 44 Vt. 208; State v. O'Connell, 82 Me. 30, 19 A. 86.

OPINION

FISK, J.

Appellant was convicted in the county court of Wells county of the crime of maintaining a common nuisance, and he has appealed from the judgment of conviction. He assigns errors as follows:

1. The court erred in denying defendant's motion for a preliminary hearing.

2. The court erred in denying the defendant's motion to set aside and quash the information.

3. The court erred in overruling defendant's general objection to the introduction of any testimony under the information made at the opening of the trial.

4. The court erred in overruling defendant's objection to Exhibit 7.

5. The court erred in denying defendant's motion for a new trial made upon the ground of the errors occurring upon the trial above specified, and upon the ground that the jury was allowed to separate without leave of the court after returning to deliberate upon their verdict.

It was not error to deny appellant's motion for a preliminary examination. The statute governing the practice in county courts expressly provides that "no preliminary examination shall be necessary before trial in criminal actions in the county court." (Laws 1909, chap. 80, § 35.) That such statute is constitutional we entertain no doubt. The Constitution of this state confers no right to a preliminary examination. If such right exists, it is by virtue of some statute. Such was the express holding of this court in State v. Rozum, 8 N.D. 548, 80 N.W. 477. See also 1 Bishop, New. Crim. Proc. § 239a. Nor does a statute such as chapter 80, Laws 1909, contravene the "due-process-of-law" clause in our Constitution, or in the Federal Constitution.

Hurtado v. California, 110 U.S. 516, 28 L.Ed. 232, 4 S.Ct. 111, 292; Hallinger v. Davis, 146 U.S. 314, 36 L.Ed. 986, 13 S.Ct. 105; State v. Krohne, 4 Wyo. 347, 34 P. 3. The opinion in the latter case, to our minds, fully answers the very ingenious argument of appellant's counsel upon this branch of the case. Such argument would, no doubt, have much to commend it if addressed to the legislature, instead of to the courts. As argued by counsel the statute dispensing with preliminary examinations in the county court may, for reasons stated, be very harsh and drastic in many instances; but the remedy for this rests with the legislature, not the courts.

The second assignment challenges the ruling denying defendant's motion to quash the information. The grounds of such motion were:

"1. That defendant has never had or been allowed a preliminary hearing herein as provided by law, but has been refused the same.

"2. That the information herein does not purport to be sworn to by the state's attorney upon his own knowledge, but only upon information and belief, and is not accompanied by any deposition or testimony taken before him as state's attorney.

"3. That there never has been a criminal complaint made herein, as required by law.

"4. That this court is without jurisdiction in this action." For reasons hereafter stated we are unable to discover any error in such ruling. The first ground is untenable, as we have above noticed, for the reason that the defendant was not entitled to a preliminary examination under the statute. None of the other grounds enumerated in the motion are designated in the statute as grounds for quashing the information. Sec. 9891, Rev. Codes 1905, prescribes the cases in which an information may be set aside by the court in which the defendant is arraigned as follows:

1. In all cases when the defendant is entitled to a preliminary examination before a magistrate, before the filing of such information, when he has not had such examination and been held to answer before the district court, or has not waived such examination in writing, or orally before a magistrate.

2. When the information is not subscribed by a person authorized to act as informant.

3. When the information is not verified.

Appellant's counsel argues that the information being verified by the state's attorney on information and belief merely, and there being no proper showing of probable cause supported by oath or affirmation, that it was error to deny his motion to quash the information. Conceding that there was no showing of probable cause supported by oath or affirmation, does it follow that the court erred in refusing to quash the information? It was verified as required by law. Conceding that appellant was wrongfully arrested under a warrant issued without a previous showing of cause, supported by oath or affirmation, contrary to § 18 of our Constitution, does this furnish any ground for quashing the information? It was, no doubt, a good ground for setting aside the warrant under which he was thus illegally arrested, and, restoring him to his liberty, but further than this the authorities are not in entire harmony. The case of State v. Cropper, 4 Kan.App. 245, 45 P. 131, and State v. Blackman, 32 Kan. 615, 5 P. 173, are authority upon the point that the information, being verified according to law, is sufficient for every purpose except merely for the purpose of issuing a warrant for the arrest of the defendant. We quote from the opinion in the latter case as follows: "The question in the present case is not whether a warrant was properly issued or not, or whether a warrant or an arrest thereunder is valid or not; but the sole question is simply whether the information, as verified by the county attorney, is sufficient. Now, it is our opinion that an information or complaint under the prohibitory liquor law of 1881, verified in accordance with § 12 of such law, is, so far as the verification is concerned, sufficient for every purpose except merely for the purpose of issuing a warrant for the arrest of the defendant. Such an information thus verified may properly be filed by the county attorney; a trial may properly be had thereon; a conviction may properly follow the trial; and the defendant may properly be sentenced upon such conviction. And an information thus verified is not subject to a motion to set it aside or to quash it merely because of the supposed insufficiency of the verification; nor may the cause be dismissed or the judgment arrested or a new trial granted for any such reason, and the county attorney may not only rightly file the information under the prohibitory liquor law, and verify them in accordance with § 12 of such law, but it is his duty in many cases to do so, and it is always his duty to obey the provisions of that section. Of course, before a warrant is issued for the arrest of the defendant, an oath or affirmation within the meaning of § 15 of the Bill of Rights should be made, showing probable cause to believe the defendant guilty; but if no such oath or affirmation is made or filed, but nevertheless the defendant, without objection, pleads to the merits of the action, and goes to trial, he waives all irregularities in the verification of the information, and cannot afterward be heard to question the regularity or validity of any proceeding in the case, if he urges no other objection than that such verification is insufficient."

In State v. Cropper, supra, the information was verified upon information and belief, and filed with the information was the affidavit of one Phillips, verified before the county attorney. A motion to quash the information was made and denied. We quote from the opinion, as follows: "An information...