State v. Johnson
| Decision Date | 27 April 1966 |
| Docket Number | Cr. N |
| Citation | 142 N.W.2d 110 |
| Parties | STATE of North Dakota, Plaintiff and Respondent, v. Bernard William JOHNSON, Defendant and Appellant. o. 333. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. There is no right of appeal in the absence of a statute conferring it.
2. Section 29--28--06, N.D.C.C., does not authorize an appeal to the Supreme Court from an order of the District Court denying a defendant's motion to dismiss the prosecution against him.
Helgi Johanneson, Atty. Gen., Bismarck, and Richard B. Thomas, State's Atty., Minot, for plaintiff and respondent.
Ella Van Berkom, Minot, for defendant and appellant.
On September 3, 1965, the defendant moved the District Court of Ward County for the dismissal of a criminal action brought against him on the following ground:
That the Defendant, Bernard William Johnson, was on the 19th day of September, 1961, held to answer for a public offense, to-wit, burglary; that no information has been filed, nor indictment found against him at the next general term of the District Court at which a jury was called.
The District Court denied the motion, and this appeal is attempted from the order of denial.
At the outset we are met by the contention of the State that the order of the District Court denying the defendant's motion to dismiss the prosecution is nonappealable. If this contention be sound, this court is without jurisdiction to entertain this appeal, and it must be dismissed without a consideration of the merits involved.
Section 29--28--06, N.D.C.C., provides that an appeal may be taken by the defendant from the following:
1. A verdict of guilty;
2. A final judgment of conviction;
3. An order refusing a motion in arrest of judgment;
4. An order denying a motion for a new trial; or
5. An order made after judgment affecting any substantial right of the party.
There is no right of appeal in the absence of a statute conferring such. State v. Fortune, 29 N.D. 289, 150 N.W. 926; Quarton v. O'Neil, 51 N.D. 842, 200 N.W. 1010. Since Section 29--28--06, supra, does not authorize an appeal from an order denying a defendant's motion to dismiss the prosecution against him, the contention of the State is well taken and requires a dismissal of this appeal.
Appeal dismissed.
MURRAY, J., not being a member of the Court at the time of submission of this case, did not participate.
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State v. Fischer
...In numerous cases we have held that there is no right of appeal unless a statute specifically confers such a right. See State v. Johnson, 142 N.W.2d 110 (N.D.1966); State v. McEnroe, 69 N.D. 445, 287 N.W. 817 (1939); Quarton v. O'Neil, 51 N.D. 842, 200 N.W. 1010 (1924); State v. Fortune, 29......
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State v. Gohl
...in section 29-28-06 authorizes an appeal from a denial of a defendant's motion to dismiss the prosecution against him. State v. Johnson, 142 N.W.2d 110, 111 (N.D.1966); see also State v. Rippley, 319 N.W.2d 129, 131 (N.D.1982). The right of appeal is governed solely by statute in this state......
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State v. Rippley, Cr. N
...The denial of Rippley's motion to dismiss the prosecution against him was not appealable. Section 29-28-06, NDCC; State v. Johnson, 142 N.W.2d 110 (N.D.1966). Rippley waited and appealed from the judgment so that we could review the denial of his motion to dismiss on appeal from the judgmen......
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State v. Nordquist, 731-A
...standard was not met by the grand jury which indicted him.4 The order denying Nordquist's motion was not appealable. See State v. Johnson, 142 N.W.2d 110 (N.D.1966).5 We note that Nordquist did not argue to the trial court, nor does he argue before us, that his conviction rests on insuffici......