State v. Henderson

• Decision Date: 11 January 1968
• Docket Number: Cr. 355
• Parties: Blue Sky L. Rep. P 70,762 STATE of North Dakota, Plaintiff and Respondent, v. Arthur Robinson HENDERSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 700

156 N.W.2d 700

Blue Sky L. Rep. P 70,762

STATE of North Dakota, Plaintiff and Respondent, v. Arthur Robinson HENDERSON, Defendant and Appellant.

Cr. 355.

Supreme Court of North Dakota.

Jan. 11, 1968.

Rehearing Denied March 1, 1968.

Syllabus by the Court

1. Where a written order denying a motion in arrest of judgment was signed almost four months afer the entry of judgment, the statutory time for appealing from the order commenced when the written order was made, and not when the oral decision in open court was rendered. The oral decision, however, was sufficient compliance with the statute requiring a motion in arrest of judgment to be decided prior to entry of judgment, so that a judgment entered thereafter could not be attacked as void. Secs. 29-28-08 and 29-25-04, N.D.C.C.

2. An information charging, in part, the sale of a note in violation of Section 10-04-10, N.D.C.C., which makes it an offense to sell or offer to sell 'securities' without registering as a dealer or a salesman, is not subject to the objection that it does not charge a public offense because plural words include the singular unless a contrary intention plainly appears. Sec. 1-01-35, N.D.C.C.

3. An information charging selling or offering to sell securities without registering as a dealer or a salesman does not violate the rule against duplicity where defendant was not confused or embarrassed in making his defense by the necessity of meeting several distinct accusations founded on disconnected acts.

4. Section 10-04-10, N.D.C.C., sets forth the conduct proscribed in such a manner as to convey an adequate warning to the reasonable man interpreting it in the light of common understanding and commercial practice, and the section therefore does not violate due process of law.

5. Where trial court submitted written instructions to both counsel and requested that they examine them and present any objections which they might have, and counsel for defendant registered no objections, any error in the instructions as given will not be considered on appeal. Sec. 29-21-33, N.D.C.C.

6. An assignment of error in the admission of evidence will not be reviewed by this court unless proper and timely objection is made to the admissibility thereof, and the admissibility of such evidence cannot be challenged for the first time on appeal.

7. The failure of the prosecution to call a witness whose name is endorsed on a criminal information does not constitute error.

8. Control of the scope of opening and closing arguments is a matter left largely to the judicial discretion of the trial court, and this exercise of discretion will not be reversed unless this discretion has been clearly abused.

Syllabus on Petition for Rehearing.

9. Where there is an unnecessary third party present during an attorney-client conversation, any statements made will be considered nonconfidential and not within the ambit of the attorney-client testimonial privilege.

10. The legislative intent in enacting a statute stating that testimony by the holder of a privilege concerning the privileged communication is a waiver as to testimony from the other member of the privileged relationship was to prevent the privilege holder from obstructing justice, and was not meant to set forth the only method by which the privilege could be waived.

William R. Mills, Bismarck, for defendant and appellant.

Helgi Johanneson, Atty. Gen., and Donald R. Holloway, Special Asst. Atty. Gen., Bismarck, Richard B. Thomas, State's Atty., Minot, and Glenn Dill, Asst. State's Atty., Kenmare, for plaintiff and respondent.

PAULSON, Judge (on reassignment).

This is an appeal from a judgment rendered on a verdict against the appellant, Arthur Robinson Henderson, who was charged with violating Section 10-04-40 of the North Dakota Century Code, and from an order denying a motion in arrest of judgment.

The original information was amended just prior to trial, and Mr. Henderson, without objection, was arraigned on the amended information. The latter information charged the appellant with 'offering for sale or selling securities without registering with the securities commissioner as a dealer or salesman', the specific act complained of being the selling of a $1000 note to Alice Rodin on September 25, 1965.

The salient facts are that, during the period specified in the information, March 10, 1965, to November 1, 1965, the appellant was employed by Heartland International, Inc., a North Dakota corporation, to assist in raising money to be used by the corporation to purchase a Minot radio station from Heartland's parent corporation, the People's Radio Association of Denver, Colorado. During this period Mr. Henderson was not licensed with the North Dakota Securities Commissioner either as a salesman or as a dealer. The State proved, without contradiction, the sale of a note to the woman named in the amended information, and several other sales as well. The State offered further proof, through the testimony of an attorney who had advised Mr. Henderson, that Mr. Henderson had knowledge that the sale of the notes in question would require a North Dakota salesman's or dealer's license.

There are two preliminary matters to be decided prior to consideration of the basic issues raised by Mr. Henderson's specifications of error. Both are in regard to the motion in arrest of judgment.

The State claims that this court has no jurisdiction of an appeal from the denial of the motion in arrest of judgment because the oral decision on the motion was rendered in open court on November 23, 1966, and the notice of appeal from that decision was not served until April 4, 1967, which period was not within the sixty-day limit set forth in Section 29-28-08, N.D.C.C.

The State's contention cannot be upheld. Section 29-28-08, N.D.C.C., requires that an appeal be 'from an order'. This court stated in State v. New, 75 N.D. 433, 28 N.W.2d 522, in paragraph 2 of the syllabus:

'An oral denial of a motion does not constitute an Order denying the motion. An order Must be in writing and Must be signed by the judge.' (Emphasis supplied.)

Accord, State v. Wicks, 68 N.D. 1, 276 N.W. 690.

The rationale behind these decisions is clear; their purpose is to foster certainty and concreteness in the record to be reviewed on appeal. The written order denying the motion was filed with the clerk of court on March 12, 1967, and the notice of appeal from that order was served on April 4, 1967, and filed on April 13, 1967, or well within the sixty-day period. This court has jurisdiction of the appeal from the order, and the motion to dismiss that appeal is denied.

Henderson claims that the judgment entered against him is void because the order denying the motion in arrest of judgment was not entered prior to the rendition of the judgment. To support this contention, Henderson relies on Section 29-25-04, N.D.C.C., which reads as follows:

'A motion in arrest of a judgment shall be heard and decided before judgment is entered and after reasonable notice has been given to the state's attorney by the defendant.'

Assuming, without deciding, that the provision of the foregoing section is mandatory, we conclude that it has been complied with by the court's oral decision on the motion. Section 29-25-04 does not require a written order to be entered prior to judgment, but only that the motion 'be heard and decided before judgment is entered.'

This provision is for the protection of the defendant, in that the granting of the motion would preclude the entry of a judgment against him. An oral decision on the motion sufficiently protects and informs the defendant, and does not affect his right to appeal from the written order when it is finally entered.

Mr. Henderson's remaining specifications of error can be grouped under four main categories. We will first consider the claimed error in denying the motion in arrest of judgment.

This motion was based on three grounds: that the information did not charge a public offense; that the information charges more than one offense; and that the trial court did not have jurisdiction of the offense charged.

The information charged Henderson with 'offering for sale or selling Securities' in that he sold a note to one Alice Rodin. The language of Section 10-04-10, N.D.C.C., also refers to 'securities'. The essence of Henderson's argument in this regard is that the sale of a 'note' is not the sale of 'securities'. This argument is not well taken. Section 1-01-35, N.D.C.C., provides:

'Words used in the singular number include the plural and words used in the plural number include the singular, except when a contrary intention plainly appears.'

The contrary intention does not plainly appear in Section 10-04-10. The gist of the offense is selling, in a nonexempt transaction, without being registered. That offense is committed whether one security or many are sold. Further, the State proved, without contraversion, the sale, by Henderson, of several other notes, thus fulfilling Henderson's contention that the 'sale of securities' must be shown. The error in the information, if such it is assumed to be, is at best a technical error and did not affect any substantial right of Henderson and, therefore, it will be disregarded by this court. Sec. 29-28-26, N.D.C.C.

The second ground stated in the motion in arrest of judgment is that the information charges more than one offense. The contention is that the charge comprises four offenses: selling securities without registering as a salesman; selling securities without registering as a dealer; offering to sell securities without registering as a salesman; and offering to sell securities without registering as a dealer. This contention cannot be sustained.

Section 29-11-10, N.D.C.C., sets out the method of charging a criminal offense in North Dakota. It states, in subsection 2, that a valid charge can be made:

'By stating so much of the definition of the offense or...