State v. Hersch, CR

• Decision Date: 15 August 1989
• Docket Number: No. CR,CR
• Citation: 445 N.W.2d 626
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Alvin E. HERSCH, Defendant and Appellant. 880264. 880272.
• Court: North Dakota Supreme Court

Page 626

445 N.W.2d 626

STATE of North Dakota, Plaintiff and Appellee, v. Alvin E. HERSCH, Defendant and Appellant.

No. CR. 880264.

No. CR. 880272.

Supreme Court of North Dakota.

Aug. 15, 1989.

James M. Vukelic (argued), Asst. Atty. Gen., Atty. Gen's Office, Bismarck, for plaintiff and appellee.

William Kirschner & Associates, Fargo, for defendant and appellant; argued by William Kirschner, Fargo.

LEVINE, Justice.

Alvin E. Hersch appeals from a district court judgment entered upon a jury verdict finding him guilty of nine counts of theft of property. We affirm two counts, reverse seven counts, and remand for further proceedings consistent with this opinion.

The impetus for Hersch's convictions was his sale of coin-operated machines to investors and his subsequent failure to deliver or locate the machines for the investors and to return the purchase price. From April 1984 until June 1984 Hersch sold the Med Pulse 2000, a coin-operated blood pressure measuring machine, for Gary Tharaldson, who had "exclusive" territorial rights for that machine in thirty-eight states, including North Dakota. In May 1984 Hersch formed his own corporation, Tri-State Medical Vending, Inc., to buy the blood pressure machines from Tharaldson and sell them to investors. According to the State, Hersch's sales pitch to the investors included promises that each blood pressure machine would earn more than five dollars per day for the investors; that a management company would locate each machine in a high traffic area to assure a large profit; and that the management company would collect income from each machine and forward a percentage to the investors. Although Hersch bought only ninety blood pressure machines from Tharaldson, he sold more than 120 machines to investors for approximately $200,000.

When the blood pressure machines were not located and the complaining investors did not receive their expected profits, Hersch persuaded some of them to trade their blood pressure machines for pay telephones. Hersch also sold pay telephones to other investors through another corporation, Tri-State Empire Communications, Inc. According to the State, Hersch assured those investors that the pay telephones would generate a profit for the investors; that a professional locator would locate the telephones; and that the income from the telephones would be collected and distributed to the investors. Hersch sold fifty-two pay telephones to investors for about $70,000. None of the complaining investors received the pay telephones or any profits. In March 1985, Tri-State Medical Vending and Tri-State Empire Communications ceased doing business.

On June 9, 1987 and June 12, 1987, the State filed criminal complaints against Hersch in the counties where the transactions involving the blood pressure machines and pay telephones occurred, charging him with nine counts ¹ of theft by deception in violation of Section 12.1-23-02(2), N.D.C.C., a class C felony. The cases were consolidated and three criminal informations charging Hersch with a total of nine counts of theft by deception were filed in district court on December 21, 1987. Hersch was convicted by a jury on all nine counts and was sentenced separately on each count.

Hersch first argues that two of the informations, each of which alleged four counts of theft of property, failed to charge him with a crime because their prefatory language was not incorporated into each separate count. Although Hersch did not raise this issue below, defects based on the failure of an information to charge an offense may be raised at any time during the pendency of the proceeding. Rule 12(b)(2), N.D.R.Crim.P.

Each four-count information contained introductory language that alleged that "on or after" the date of sale, Hersch committed "theft of property in violation of N.D.C.C. § 12.1-23-02(2), in that [he] did knowingly obtain property of another by deception with intent to deprive the owner thereof, or did intentionally deprive another of his property by deception." A colon followed the prefatory language. Each information then stated four separate counts, which alleged that Hersch promised to provide the complainants with blood pressure machines or pay telephones and failed to provide the machines and refused to return the purchase money. We believe the colon at the end of the prefatory language of the four-count informations incorporated that language into each count. We conclude that the four-count informations contained a plain, concise, and definite written statement of the essential elements required to allege a violation of Section 12.1-23-02(2), N.D.C.C., and were factually sufficient to fairly inform Hersch of the charge so that he could prepare his defense. ² Rule 7(c), N.D.R.Crim.P.; see State v. Skjonsby, 319 N.W.2d 764 (N.D.1982); State v. Jelliff, 251 N.W.2d 1 (N.D.1977).

Hersch next argues the three-year statute of limitations barred his prosecution. Hersch concedes that this issue was not raised below, but contends that the statute of limitations is jurisdictional and may be noticed for the first time on appeal.

While some jurisdictions hold that a statute of limitations in a criminal action is an affirmative defense and may be waived [United States v. Wild, 551 F.2d 418 (D.C.Cir.1977), cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226 (1977); People v. Williams, 79 Ill.App.3d 806, 35 Ill.Dec. 63, 398 N.E.2d 1013 (App.Ct.1979); Padie v. State, 594 P.2d 50 (Alaska 1979) ], in State v. Tennyson, 73 N.D. 259, 14 N.W.2d 171 (1944), this court said that the statute of limitations in a criminal case is a jurisdictional fact which creates a bar to prosecution. See State v. Thomas, 72 N.D. 537, 9 N.W.2d 442 (1943). Our decisions thus follow the rule that an information that shows on its face that the prosecution is barred by the statute of limitations fails to state a public offense and is noticeable for the first time on appeal. E.g., Waters v. United States, 328 F.2d 739 (10th Cir.1964); Benes v. United States, 276 F.2d 99 (6th Cir.1960); People v. Zamora, 18 Cal.3d 538, 134 Cal.Rptr. 784, 557 P.2d 75 (1976); State v. Civella, 364 S.W.2d 624 (Mo.Ct App.1963); State v. Stillwell, 175 N.J.Super. 244, 418 A.2d 267 (1980); City of Cleveland v. Hirsch, 26 Ohio App.2d 6, 268 N.E.2d 600 (1971). We conclude that Hersch did not waive the statute of limitations by failing to raise it below.

Hersch contends that the three-year statute of limitations barred his conviction on seven of the nine counts alleged in the information. He argues that the prosecutions for those seven counts were barred by Sections 29-04-02, and 29-04-05, N.D.C.C., because the transactions involved in those counts were alleged to have occurred more than three years before the informations were filed on December 21, 1987. ³ [See fn. 1]. Relying on an amendment to Section 29-04-02, N.D.C.C., effective July 8, 1987, ⁴ the State responds that the prosecutions for those seven counts were commenced by the filing of the criminal complaints in June 1987 and were therefore within the three-year statute of limitations.

Our initial inquiry concerns whether the 1987 amendment to Section 29-04-02, N.D.C.C., is applicable to this case. In Reiling v. Bhattacharyya, 276 N.W.2d 237, 240-241 (N.D.1979), this court held that Section 1-02-10, N.D.C.C., ⁵ applies to all statutes enacted by the Legislature regardless of whether they are substantive or procedural and that "[a]ll statutes enacted by the legislature are to be applied prospectively, i.e., they are to be applied only to causes of action that arise after the effective date of the statute, unless the legislature clearly expresses that they are to be applied retroactively." The conduct in this case occurred before the 1987 amendment to Section 29-04-02, N.D.C.C., and the Legislature did not clearly express retroactive application of that amendment. We are therefore guided by the pre-1987 statute of limitations. ⁶

Before its amendment in 1987, Section 29-04-02, N.D.C.C., provided:

"Prosecution for felony other than murder within three years.--An information for any felony other than murder must be filed, or an indictment must be found, within three years after its commission. Nothing in this section contained shall be construed to bar or prevent a person prosecuted for murder from being found guilty of manslaughter and punished accordingly."

Section 29-04-05, N.D.C.C., provides:

"When action is commenced.--An information is filed or an indictment found within the meaning of this chapter when it is presented, if an information, by the state's attorney or person appointed to prosecute, or, if an indictment, by the grand jury, in open court, and there received and filed, or if a complaint, when filed by a magistrate having jurisdiction to hear, try, and determine the action."

Statutory language must be construed as a whole to determine the legislative intent. E.g., County of Stutsman v. State Historical Society of North Dakota, 371 N.W.2d 321 (N.D.1985). In ascertaining the legislative intent, we first look to the statutory language. Id. Statutory language must be given its plain, ordinary, and commonly understood meaning. Id. We are also guided by the principle that statutes of limitation are to be construed liberally in favor of the accused and against the prosecution. E.g., Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970).

Section 29-01-01, N.D.C.C., and Rule 7(a), N.D.R.Crim.P., require that all prosecutions in district court be by information or indictment. The plain language of Section 29-04-02, N.D.C.C., requires that "[a]n information for any felony other than murder ... be filed ... within three years after its commission." Section 29-04-05, N.D.C.C., plainly states that "[a]n information is filed ... when it is presented ... by the state's attorney or person appointed to prosecute ... in open court, and there received and filed, or if a...