State v. Hasledahl
| Decision Date | 04 November 1892 |
| Docket Number | 6731 |
| Citation | 53 N.W. 430,3 N.D. 36 |
| Parties | STATE v. HASLEDAHL |
| Court | North Dakota Supreme Court |
Error to District Court, Richland County; Lauder, J.
Martin O. Hasledahl was convicted of embezzlement and brings error.
Affirmed.
M. A Hildreth, for plaintiff in error.
C. A M. Spencer, Attorney General; S. H. Snyder, State's Attorney, and W. E. Purcell, for the state.
The plaintiff in error has been twice convicted of embezzlement. The conviction on the former trial was reversed because of a defect in the information. State v Hazledahl, 2 N.D. 521; 52 N.W. 315. It failed to show on its face that the prosecution was in the name and by the authority of the State of North Dakota. After the case was remanded, the District Court made and entered and order directing the state's attorney to file a new information to obviate the technical defect in the former one. Such a new information was filed. It was in all respects practically the same as the former information, with the exception of a statement that it was filed in the name and by the authority of the State of North Dakota. It is urged that it was improper to allow this information to be filed as the basis of a criminal prosecution without a new preliminary examination. That there had been such an examination before the defective information was filed is undisputed. That this examination was sufficient in all respects to warrant the filing of an information for the offense charged in the new information filed is uncontroverted. Why it should be necessary to re-examine the accused before a committing magistrate, in order to correct a technical defect not in the proceedings on such examination, but in an information filed thereafter, it is difficult to understand. The language of the statute does not require it, nor does the spirit of the law demand it. The main purpose of the provision requiring such an examination before the state's attorney shall have power to file an information is to protect the citizen against the arbitrary action of that officer. The return of an indictment, only after an examination of evidence by a grand jury, guarantied the citizen, as a rule, against prosecutions without probable cause. This guaranty is perpetuated by the requirement that there shall be a preliminary examination before a committing magistrate. After such an examination has been had,--one sufficient to sustain an information,--it is idle to urge that the rights of the accused are in the least prejudiced by the filing, without a second preliminary examination, of another information to take the place of the former defective one,--to amend it wherein it was technically insufficient,--charging the same offense charged in the former information, and differing therefrom only by supplying a formal part omitted from the first information. No authority can be found to uphold such a contention. But we are referred to cases wherein it is held that, where an indictment is set aside as defective, the case must be resubmitted to the same or another grand jury; and in one case it was held that the same grand jury could not return, without a re-examination of the witnesses, a second indictment, the former indictment having been quashed by the prosecuting attorney. These cases are not in point. In Ex parte Bain, 121 U.S. 1, 30 L.Ed. 849, 7 S.Ct. 781; the trial court, without the consent of the grand jury, amended the body of an indictment by expunging therefrom certain words, and it is apparent from the opinion in this case that the words were not regarded by the Supreme Court as mere surplusage. The words struck out by the trial court were, "The comptroller of the currency and." The gist of the charge was making a false report with intent to deceive the comptroller of the currency and others. The court said: "How can the court say that there may not have been more than one of the jurors who found this indictment who were satisfied that the false report was made to deceive the comptroller, but was not convinced that it was made to deceive anybody else?" It is elementary that the body of an indictment cannot be amended by the court without the consent of the grand jury. Whenever the accused is arraigned on such an amended indictment, he can plead that the grand jury have found no such indictment against him. The body that found the indictment has not amended it. But when an information is amended, as it may be, this objection cannot be urged against the amended information. The officer that presented the original information has amended it by either interpolating into the old one the amendment, or by filing a new one containing such amendment. It has always been the rule that an information could be amended with leave of court, by the prosecuting attorney. 10 Amer. & Eng. Enc. Law 709, note 1; Whart Crim. Pl. § 87. The decision in State v. Ivey, 100 N.C. 539, 5 S.E. 407, is confidently relied on by counsel for the plaintiff in error. In that case a bill of indictment was sent to the grand jury, and, upon examination of witnesses, it was returned a true bill. The solicitor of the state considering that it did not charge the offense committed, it was, on his motion, quashed; whereupon another bill was sent the grand jury, which was returned a true bill, without any further examination of witnesses. It was held that the second indictment must be squashed. It will be noticed that in this case the first indictment was quashed. It was utterly annihilated. There was nothing to amend. Its destruction carried down with it the examination of witnesses before the grand jury. Such examination could have no separate existence apart from the indictment. No record of such examination is required to be, nor is it ever, kept. But the record of a preliminary examination is entirely distinct from the information, and can and does exist after the information is destroyed. But in the case at bar the information was not set aside. A demurrer was interposed to it. The demurrer was overruled. On writ of error, this court held that the demurrer should have been sustained because of the omission from the caption of words showing that it was filed in the name and under the authority of the state. The conviction was reversed. The case then stood as though the trial court had sustained the demurrer. That court made an order directing the filing of a new information to remedy the defect in the former one. This was equivalent to an amendment, and, as an information must be verified, it is perhaps the better practice to make an amendment in this manner; otherwise it can be said that the verification to the old information does not embrace the new matter interpolated into the information by amendment. As the information was not quashed, the preliminary examination was unaffected. It continued to stand, and it was therefore true that there had been a preliminary examination as a foundation for the filing of the amended information. The same conclusion is inevitable, if we regard the old information as set aside, and consider that an entirely new information was filed. Setting aside an information does not touch the preliminary examination. The foundation remains. Setting aside or quashing an indictment destroys the whole proceeding. There must be a new indictment found by the grand jury, and this necessitates a judicial investigation by that body. As the law contemplates no record of the examination, as it does of a preliminary examination, the grand jury cannot refer to such a record in finding the new indictment,...
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