State v. Hapip

• Decision Date: 25 November 1969
• Docket Number: Cr. 386
• Citation: 174 N.W.2d 717
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. David HAPIP, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 717

174 N.W.2d 717

STATE of North Dakota, Plaintiff and Respondent, v. David HAPIP, Defendant and Appellant.

Cr. 386.

Supreme Court of North Dakota.

Nov. 25, 1969.

Rehearing Denied Feb. 20, 1970.

Syllabus by the Court

1. For reasons stated in the opinion, a party to a litigated criminal case in a county court of increased jurisdiction, pursuant to the procedural statutes, has a statutory right which requires that a record of the proceedings and testimony upon a trial of an action be made by a court reporter or some suitable person acting by appointment of a judge, and to have a transcript of the proceedings certified as provided by statute.

2. The process of proceeding to a criminal trial in a county court of increased jurisdiction by a defendant did not constitute a waiver by him or his attorney of a defendant's statutory right to have the proceedings of the trial taken down by a court reporter; a waiver must be an overt act by a defendant or his attorney, not a passive act, supported by a record. A waiver cannot be presumed where there is no record.

McIntee, Whisenand & Calton, Williston, for appellant.

Helgi Johanneson, Atty. Gen., Bismarck and LeRoy Anseth, State's Atty., Williston, for respondent.

PAULSON, Judge.

This is an appeal from an order denying a motion for a new trial and from a judgment of conviction of the crime of petit larceny.

David Hapip attended a beer party on November 29, 1968, at the John G. Hegge farm, which is located about 28 miles north of Williston, North Dakota. There were approximately 100 young adults present at this gathering. During the time that Hapip was in attendance at the party, one of the individuals who was present had taken the liberty of placing from two to three gallons of gasoline in the Hapip car. This gasoline was removed from a gas tank located on the Hegge farm, and was appropriated without the permission of the owner, Mr. Hegge. Thereafter a complaint was issued charging David Hapip with petit larceny.

The case was tried before the Honorable Lawrence O'Connell, Judge of the Williams County Court of Increased Jurisdiction, on December 26, 1968. Hapip voluntarily waived a trial by jury, pursuant to § 27--08--41 of the North Dakota Century Code. Evidence was submitted by the State and by the defendant. A qualified reporter was not present at the trial, but alleged notations of the proceedings were taken during the trial. Hapip was found guilty as charged and, through his attorney, made a motion for a new trial. The motion for a new trial was denied on January 13, 1969. The court, on February 24, 1969, entered a judgment wherein Hapip was adjudged guilty of the crime of petit larceny and was sentenced to pay a fine and costs aggregating $50.00. Hapip appealed from the order denying a new trial, dated January 13, 1969, as well as from the jdugment of conviction dated February 24, 1969.

Hapip, in his motion for a new trial, set forth the following grounds, which are also contained in his appeal to this court:

1. The court erred in denying defendant's motion for dismissal and/or acquittal made at the conclusion of the State's evidence.

2. That the verdict is contrary to the law or clearly against the evidence.

3. That the defendant, without fault or negligence on his part, is unable to procure a correct and complete transcript of the evidence given and the proceedings had at the trial.

An appeal may be taken by the defendant from an order denying a motion for a new trial, pursuant to § 29--28--06(4), N.D.C.C. A county court with increased jurisdiction has concurrent jurisdiction with the district court in all criminal actions below the grade of felony. § 111, N.D.Const. The Legislature has provided that the provisions of law and rules of practice and procedure applicable to the district courts in criminal actions, including appeals to the Supreme Court, shall apply to the county courts with increased jurisdiction. § 27--08--24, N.D.C.C.; State v. Timm, 146 N.W.2d 552 (N.D.1966).

Section 29--24--02(8), N.D.C.C., states in pertinent part:

'When a verdict has been rendered against the defendant, the court in which the trial was had, upon his application, may grant a new trial in the following cases only:

'8. When the defendant, without fault or negligence on his or her part, is unable to procure a correct and complete transcript of the evidence given and the proceedings had at the trial.'

During Hapip's trial there was no qualified court reporter present to take down the testimony and proceedings in shorthand and, consequently, there is no transcript of the proceedings before this court on appeal.

Hapip urges that the determinative issue on this appeal is whether the trial court erred in failing to provide at his trial a court reporter, pursuant to §§ 27--08--18 and 27--08--24, N.D.C.C., qualified to perform the duties set forth by § 27--06--03, N.D.C.C.

Section 27--06--01, N.D.C.C., provides that each judge of the district court may appoint a court reporter or some suitable person to act in his place if the reporter is incapacitated from acting. Section 27--08--18, N.D.C.C., provides that each judge of a county court of increased jurisdiction may appoint a court reporter who shall be qualified in the same manner as the reporter of a district court and his duties shall be governed...