State v. Johnson

• Decision Date: 18 November 1908
• Parties: STATE v. JOHNSON.
• Court: North Dakota Supreme Court

17 N.D. 554

118 N.W. 230

STATE

v.JOHNSON.

Supreme Court of North Dakota.

Nov. 18, 1908.

Syllabus by the Court.

The sufficiency of the allegations of an information, when raised by a motion in arrest of judgment, will be construed with less strictness than when raised by demurrer.

Where an information states facts constituting an offense in general words, and in the language of the statute defining the offense, the information is sufficient, as against a motion in arrest of judgment, although some of the necessary allegations are stated or appear by inference, and not by positive allegation.

A person accused of a crime, in the commission of which a corrupt intent is a necessary ingredient thereof, may testify what his intent was in doing certain acts.

Objections to certain questions considered, and held error to sustain them.

A person accused of crime should be allowed the fullest latitude to explain what his intent was in writing or making statements, apparently incriminating, and in explaining what he meant by certain equivocal statements.

Appeal from District Court, Benson County; John F. Cowan, Judge.

Elias Johnson was convicted of offering a bribe to a road overseer and appeals. Reversed and remanded.F. Baldwin, C. B. Craven, Craven & Maxfield, and R. A. Stewart, for appellant. T. F. McCue, Atty. Gen., for the State.

MORGAN, C. J.

The defendant was convicted of the crime of offering a bribe to a road overseer or supervisor, and sentenced to one year and six months in the penitentiary. The assignments of error on his appeal are: (1) That the information fails to state facts constituting an offense against the laws of the state of North Dakota; (2) that prejudicial errors were committed in sustaining objections to certain questions; (3) that the evidence is insufficient to sustain the verdict. The information is in the following words, omitting formal parts, concerning which no objection is made: “That at the said county of Benson, state of North Dakota, on the 27th day of July, A. D. 1905, the said Elias Johnson did willfully, unlawfully, and feloniously offer and give a bribe to one Edwin Olson, who was then and there duly appointed, qualified, and acting road supervisor and road overseer in and for the west half of township 155, range 68, in said county of Benson, by then and there offering and giving to the said Edwin Olson a bank check for the sum of $75, and of the value of $75, made, executed, and delivered then and there by the said Elias Johnson to the said Edwin Olson, which bank check is in words and figures as follows, to wit: ‘For taxes v. N. P. R. R. Co., 155-68, Benson county, 1905, No. 145, Carrington, N. Dak., July 28, 1905. Pay to the order of Edwin Olson $75.00 seventy-five and no-100ths dollars. Elias Johnson.To Commercial State Bank, Carrington, N. Dak.’ Which said bank check was then and there offered, given, and delivered to the said Edwin Olson by the said Elias Johnson through the United States mail, with the intent then and there, on the part of the said Elias Johnson, to induce and influence the said Edwin Olson, as road supervisor and road overseer, as aforesaid, to sign, as such road supervisor and road overseer, as aforesaid, a certain receipt in words and figures following: ‘The state of North Dakota, county of Benson, township 155, 68, road district, 21-2, July 28, 1905. Received of Elias Johnson the sum of one hundred and thirteen and 75-100 ($113.75) in labor upon the highways in said district, in full for district road tax, for the year 1905 against the Northern Pacific Railway Company on personal property valuation of $ ----- in said district as follows: Labor of man 55 1/2 days, labor of team and wagon or plow 35 1/2 days. ------ Road Overseer.’ The said Elias Johnson, then and there well knowing that the said Elias Johnson had not done, or caused to be done, any of the labor or paid said sum of $113.75 mentioned in said receipt, for which he (the said Elias Johnson) offered and gave the said Edwin Olson the bribe as aforesaid, to induce and influence the said Edwin Olson, as road supervisor and road overseer, to sign said receipt as aforesaid. * * *” The objections urged against the information are: (1) That it does not state that the defendant knew that Edwin Olson was a road overseer or supervisor; (2) that it does not state that the bribe was offered with corrupt intent. The information is drawn under section 8633, Rev. Code 1905, which reads as follows: “Every person who gives or offers any bribe to an executive officer of this state, with intent to influence him in respect to any act, decision, vote, opinion, or other proceedings of such officer, is punishable,” etc. It will be seen that the information charges that the bribe was offered to the road overseer with intent “to induce and influence the said Olson, as road supervisor and road overseer, as aforesaid, to sign, as such road supervisor and road overseer, as aforesaid, a certain receipt, * * * knowing that the said Elias Johnson had not done, or caused to be done, any of the labor, or paid said sum of $113.75,” etc. It is claimed that the fact that the defendant knew that Olson was a road overseer must be directly charged, and that it is not sufficient to charge this fact inferentially or indirectly. It is also claimed that a corrupt intent must be directly charged, and that it is not sufficient that the corrupt intent appears as a necessary conclusion from the facts stated. In reference to these objections it may be said that neither of them was made or raised by demurrer. There was a plea of not guilty entered without in any way attacking the sufficiency of the information, and no objection was made to the introduction of evidence based on the insufficiency of the information.

The objections are now presented under an exception to the denial of a motion in arrest of judgment, in which these objections were specifically set forth. It may also be stated that the information states all the facts required by said section 8633, Rev. Codes 1905, and states such facts substantially in the general language of that section. It cannot be said that there is a total absence of any allegation of fact that is made a constituent element of the crime of bribery. The most that can be said of the information is that its averments as to the intent, and as to knowledge that Olson was a road supervisor, are not made with the absolute directness and certainty that is required in informations before they will be sustained when attacked by demurrer. It is true that the failure of an information to state facts constituting an offense against the state may be raised for the first time by a motion in arrest of judgment. When so raised for the first time, however, we deem it well settled that the same strict rules will not be enforced in testing the sufficiency of the information as are applied, or will be applied, when its sufficiency is challenged by demurrer. If the information states an offense, though imperfectly, by reason of general statements, or it is defective as to some matter not of the substance of the offense, then a motion in arrest of judgment will not lie. It is only in case of an omission of allegations as to ingredients of the offense that pertain to the substance thereof that the insufficiency of the information can be attacked after trial by a motion in arrest of judgment. In State v. Knowles, 34 Kan. 393, 8 Pac. 861, the court said: “Where an averment, which is necessary to support a particular part of a complaint or information filed in a criminal case, is imperfectly stated, or is stated in very general terms, a verdict or plea of guilty cures the defective averment, although such averment might have been bad on demurrer or motion to quash.” The Kansas statute, under which this decision was based is similar to our own as to motions in arrest of judgment. In this case the information charges the defendant with...