State v. Howe, Cr. N

CourtUnited States State Supreme Court of North Dakota
Citation247 N.W.2d 647
Docket NumberCr. N
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. Henry H. HOWE, Defendant and Appellee. o. 555.
Decision Date26 November 1976

Syllabus by the Court

1. The right to appeal is statutory, and an order is appealable only if it comes within the provisions of a specific statute.

2. If a statute conferring the right of appeal is susceptible to different meanings, it will be construed in favor of the right of appeal.

3. The right of appeal may be taken away only by statute, not by rule.

4. A construction which will render a rule of doubtful constitutionality will be avoided when reasonably possible.

5. An order of dismissal is appealable as an order which effectively quashes an information. § 29--28--07, NDCC.

6. In ruling on a motion to dismiss, the trial court is limited to the face of the information or indictment, and all facts stated therein are assumed to be provable or true.

7. Where a complaint has been filed, there is an official proceeding pending within the statute. § 12.1--09--01, NDCC.

8. To charge the crime of threatening to influence another's testimony in an official proceeding, the threat need not be successful.

9. Statute on tampering with a witness is not limited to persons legally bound or subpoenaed to testify, but includes those who know or are supposed to know material facts and are expected to testify to them. § 12.1--09--01, NDCC.

10. A threat may be made by innuendo rather than precise words, and must be considered in the circumstances under which it was spoken.

11. The statute punishes threats uttered for the purpose of obstructing justice, even if the acts threatened are lawful in themselves. § 12.1--09--01, NDCC.

Dale V. Sandstrom, Asst. Atty. Gen., Bismarck, for plaintiff and appellant.

Lundberg, Nodland & Schulz, Bismarck, for defendant and appellee; argued by Irvin B. Nodland, Bismarck.

SAND, Justice.

This is an appeal by the State from an order issued by the Barnes County district court dismissing the criminal information in which the defendant, Henry Howe, was charged with tampering with a witness in violation of § 12.1--09--01, North Dakota Century Code.

The charge was based upon a telephone call by the defendant to Mrs. Linda Rohde on the afternoon of July 9, 1975. Mrs. Rohde had previously signed a criminal complaint against Diane Stringer for contributing to the delinquency of a minor, that minor being Mrs. Rohde's son. The statement made by the defendant over the telephone, which is not disputed by the parties, was as follows:

'Mrs. Rohde, this is Henry Howe. Did you sign a complaint on Diane Stringer? Well, I'm not making a threat, I'm making a statement--if you want to play these silly little legal games, I'll sue for your back teeth. You know I'm a good lawyer--I'll sue you for everything you've got and charge you with neglect.'

Defendant Howe was arrested, and after a preliminary hearing before Judge Kirk Smith was bound over to district court. The defendant, before trial, moved for a dismissal on grounds that the criminal information failed to state an offense and that no evidence was or could be introduced to show that the telephone call was anything other than a lawful act. The criminal information was based on the complaint signed by Linda Rohde and charged that:

'Defendant, did unlawfully make a telephone call to Linda L. Rohde at her home, and during the said telephone call by the defendant to Linda L. Rohde, the said defendant did threaten the said Linda L. Rohde with the intent to influence her testimony in an official proceeding, to-wit, the criminal case of State of North Dakota vs. Diane Stringer; that the said threatening language consisted of a statement by the defendant to Linda L. Rohde, substantially as follows: 'Mrs. Rohde, this is Henry Howe. Did you sign a complaint on Diane Stringer? Well, I'm not making a threat, I'm making a statement--if you want to play these silly little legal games, I'll sue for your back teeth. You know I'm a good lawyer--I'll sue you for everything you've got and charge you with neglect.'; That the said conversation was threatening to Linda L. Rohde was caused her to be afraid and physically upset; this contrary to the statute in such cases made and provided and against the peace and dignity of the State of North Dakota; as defined in Section 12.1--09--01 of the North Dakota Century Code.'

The Barnes County district court, Judge Hamilton Englert presiding, issued an order granting the defendant's motion to dismiss. In granting the motion, the court stated that even if all allegations in the information were proven no intent to tamper with another's testimony could be shown. The court also stated, in a memorandum handed to both counsel before oral arguments on the motion, that no evidence could be submitted that would go beyond the allegations in the information, and that it was speculative at the time of the telephone call whether Mrs. Rohde would be a witness in the action against Diane Stringer.

The court also indicated, in supplemental findings to its order for dismissal, that it had 'full knowledge of the facts involved and which would most likely come out at the trial of this case.' Prior to the phone call in question a juvenile hearing had been held involving Mrs. Rohde's son in which Mrs. Rohde had testified against her son. Defendant Howe had acted as attorney for Mrs. Rohde's son in that hearing, with Judge Englert presiding.

The Judge stated in his supplemental findings supporting the order of dismissal that

'. . . this Court had sufficient knowledge of the facts that would be shown in the trial of the case to make a proper determination of what the rulings of the court would be as to this charge within Section 12.1--09--01 when the court would be asked on completion of the state's case to rule on the motion to dismiss.'

and, further, that

'I feel I acted in ruling on the motion to dismiss in the same manner that I would have done after hearing the state's evidence, even though the defendant's side of the case may have brought out more with respect to the juvenile court action.'

The State appealed from the order for dismissal, contending that it was error for the district court to base its ruling on facts not in evidence but within the personal knowledge of the court; that Mrs. Rohde was a 'witness' within § 12.1--09--01 NDCC; that defendant's act was unlawful and in violation of § 12.1--09--01, NDCC; and that it was improper to dismiss the charge for insufficient evidence of intent since intent is a question of fact for the jury.

The defendant contends that there is no right of appeal in this case by the State from the order for dismissal, and further that the facts stated in the criminal information could not constitute an offense.

We turn first to the question whether or not the order dismissing the criminal charge is an appealable order. Section 29--28--07, NDCC, as is material here, provides:

'An appeal may be taken by the state from:

'1. An order quashing an information or indictment or any count thereof;'

The note to this section states that motions to quash were abolished in Rule 12, North Dakota Rules of Criminal Procedure. Defendant Howe argues vigorously that subsection 1 is the only subsection under which the State could conceivably claim the right to appeal, and that Rule 12(a) expressly abolished that subsection when it did away with motions to quash. We conclude that the argument is premised on an erroneous assumption and hold that the State had a right to appeal from the trial court's order for the reasons set out later herein.

The right to appeal is purely statutory, and an order is appealable only if it comes within the provisions of a specific statute. State ex rel. Olson v. Nelson, 222 N.W.2d 383 (N.D.1974); Huso v. Bismarck Public School Board, 219 N.W.2d 100 (N.D.1974); State v. McEnroe, 69 N.D. 445, 287 N.W. 817 (1939). The right to appeal is a substantial right, however, and statutes conferring the right of appeal must be liberally construed to maintain that right. If such a statute is susceptible of different meanings, it will be construed in favor of the right of appeal. In re Adoption of Godejohn, 190 N.W.2d 42 (N.D.1971); In re Heart River Irrigation District, 77 N.D. 827, 47 N.W.2d 126 (1951).

The right of appeal being statutory also means that this right may be given or taken away only by statute. The right of appeal cannot be taken away by rule. 1 If Rule 12, NDRCrimP, were to attempt to take away this right of appeal, then Rule 12 would be invalid. We have on prior occasions in substance said, with reference to statutes, that a construction which will render a statute of doubtful constitutionality will be avoided when reasonably possible. See Chernick v. City of Grand Forks, 210 N.W.2d 73 (N.D.1973); Zimmerman v. Minot State College, 198 N.W.2d 108 (N.D.1972); and Lindberg v. Benson, 70 N.W.2d 42 (N.D.1955).

We think the rule of law as it applies to statutes equally well applies to rules adopted by the court. Therefore, if Rule 12 is susceptible to two constructions, one of which would question its validity and one which would not, we must adopt the latter.

Our decision in State v. Allesi, 211 N.W.2d 733 (N.D.1973), sheds light on the interpretation to be given § 29--28--07, NDCC, under which the State is claiming its right to appeal. In Allesi, the trial court dismissed the action at the close of the State's case on grounds that evidence was insufficient to convict the accused. The State appealed, whereupon the defendant argued that the case did not come within § 29--28--07, and hence was not appealable. We held that the case was appealable under subsection (1) of that statute because, in dismissing the case, the court in effect quashed the information.

This court later referred again to the Allesi holding in State v. Iverson, 219 N.W.2d 191, 194 (N.D.1974), which involved an appeal from an order to...

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