State v. Manning

• Decision Date: 18 March 1965
• Docket Number: Cr. N
• Citation: 134 N.W.2d 91
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. John W. MANNING, Defendant and Appellant. o. 319.
• Court: North Dakota Supreme Court

Page 91

134 N.W.2d 91

STATE of North Dakota, Plaintiff and Respondent, v. John W. MANNING, Defendant and Appellant.

Cr. No. 319.

Supreme Court of North Dakota.

March 18, 1965.

Syllabus by the Court

1. At the time of the filing of an information, the State's Attorney shall endorse on it the names of all witnesses on whose evidence the information is based.

2. The names of other witnesses as he purposes to call shall be endorsed by the State's Attorney on the information at such time as the court, by rule or otherwise, may prescribe.

3. The constitutional rights of an individual may be waived by such person.

4. If an accused knowingly waives his constitutional rights, and consents to a search of his property without a search warrant, he may not thereafter contend that the search was in violation of his rights.

5. In order to constitute a valid waiver of constitutional rights, there must be a clear, unqualified consent on the part of the accused, by which it clearly appears that he volunatarily and knowingly waived such rights.

6. The waiver of constitutional rights by an accused is not to be inferred lightly, but must be clearly and intentionally made.

7. Where the only evidence of a waiver on the part of an accused is the testimony of an investigating officer that the State's Attorney had informed such officer that the defendant had consented to a search of his premises, there is no sufficient showing of a clear and voluntary waiver of his rights against an illegal search to make the evidence secured by such search admissible in evidence.

8. No waiver of constitutional rights may be inferred from the fact that the defendant, while on the stand, failed to deny that he had consented to a search of his premises without a search warrant. There must be proof of an intentional abandonment of a known right by the accused, to constitute a valid waiver.

9. In determining whether there was a waiver of fundamental constitutional rights, courts will indulge every reasonable presumption against such waiver.

10. There is no definite rule by which it may be determined whether an error by the trial court in a criminal action, in passing on any question of law, is prejudicial.

11. Not every error committed by the court is prejudicial, for to be prejudicial the error must be such that it, in all probability, had some effect on the jury's verdict.

12. All evidence obtained by searches and seizures in violation of the Fourth Amendment of the Federal Constitution is a denial of due process, and inadmissible in a proceeding in a State court.

13. Where the conviction of the defendant is sustained by other than the disputed evidence, error in permitting the introduction of such disputed evidence, to justify reversal, must be error which is obnoxious to fundamental criminal procedure. Where the error committed by the court is fundamental, the appellate court may not affirm the conviction even if it is without doubt of the defendant's guilt.

14. A witness who claims his constitutional privilege of refusing to answer questions put to him, on the ground that the answers might tend to incriminate him, must make such claim in person. His counsel may not make such claim for him.

15. An accused who voluntarily takes the stand at his trial is subject to the same rules of cross-examination as any other witness. He will be required to answer any relevant and proper question on cross-examination that will tend to convict him of the crime for which he is being tried, even if his answer might incriminate him of a collateral offense.

Helgi Johanneson, Atty. Gen., Bismarck, and John A. Alphson, State's Atty., and Robert A. Alphson, Asst. State's Atty., Grand Forks, for plaintiff and respondent.

Leibert L. Greenberg, Grand Forks, for defendant and appellant.

STRUTZ, Judge.

The defendant was convicted of the crime of leaving the scene of an accident and of failing to render reasonable assistance to a person injured in such accident. He appeals from the judgment of conviction, alleging a number of errors in the trial of the action. Among the errors claimed to have been committed by the court in the trial which resulted in defendant's conviction are:

1. The admission of testimony of certain witnesses whose names were not endorsed on the information at the time of the filing of the information; and

2. The use of evidence against the defendant, which evidence, defendant alleges, was taken at night from the garage attached to his residence and which evidence was secured by the State without a search warrant and without the consent of the defendant and in violation of the defendant's constitutional rights.

The defendant is a captain in the United States Air Force located at the Grand Forks air base. On the night of September 28, 1963, he drove his automobile on the public highway from the air base to Emerado, North Dakota, for the purpose of picking up a pizza at the latter town. On the way to Emerado, he is aleged to have struck a boy who was walking along the highway, fatally injuring him. The State contends that the defendant failed to stop at the scene of the accident or to give any assistance to the alleged victim, contrary to the provisions of Sections 39-08-04 and 39-08-06 of the North Dakota Century Code. He was arrested later for leaving the scene of an accident and for failing to render reasonable assistance. From a verdict of guilty by the jury, and judgment of conviction entered on such verdict, the defendant has taken this appeal.

The record discloses that the information had endorsed upon it, at the time it was filed, the names of certain witnesses. Thereafter, on February 20, 1964, the State's Attorney served notice upon the attorney for the defendant that he would move the court, on the opening day of the trial, that the names of twenty-one additional witnesses be endorsed on the information. At the time of the commencement of the trial, on the morning of February 24, 1964, or four days after the service of such notice, the defendant moved the court for an order prohibiting the introduction of testimony of any such additional witnesses or, in the alternative, for a continuance of the case. The trial court denied defendant's motion.

The record discloses that twelve of such additional witnesses were, in fact, called by the State and testified at the trial of the action. We must determine whether the denial of defendant's motion was prejudicial error.

The defendant cites numerous cases in support of his position in the matter. All of the cases cited, however, where decided prior to July 1, 1939. At the time of these decisions, before July of 1939, the law provided that the State's Attorney endorse on the information 'the names of all witnesses for the prosecution known to him to be such at the time of the filing of the same, * * *' Sec. 7985, 1895 R.C.; Sec. 9794, 1905 R.C.; Sec. 10631, 1913 C.L.

In 1939, the Legislative Assembly amended this provision and required that, at the time of the filing of the information, the State's Attorney shall endorse on it the names of all witnesses on whose evidence the information was based. The amended law then goes on to provide:

'* * * and the state's attorney shall endorse on the indictment or information, at such time as the court by rule or otherwise may prescribe, the names of such other witnesses as he purposes to call. A failure so to endorse the said names shall not affect the validity or sufficiency of the indictment or information, but the court in which the indictment or information was filed, upon application of the defendant, shall direct the names of such witnesses to be endorsed. No continuance shall be allowed because of the failure to endorse any of the said names unless such application was made at the earliest opportunity and then only if a continuance is necessary in the interests of justice.' Chap. 132, 1939 S.L.; Sec. 29-11-57, N.D.C.C.

Thus it will be noted that all that the law now requires is that the names of witnesses on whose evidence the information is based be endorsed on such information at the time it is filed. Such information may be based on the evidence of only one witness, and thus his name alone would have to be endorsed at the time of filing. If the defendant desires to have the names of other witnesses which the State may call, endorsed on the information, he may, under the above section, make application to the court and the court 'shall direct the names of such witnesses to be endorsed.'

We believe that the proceedings followed in this case by the trial court, which defendant complains of, were perfectly proper. The court, acting within its legal discretion in passing on the defendant's motion, did not, in our opinion, abuse that discretion.

We would further point out that, in a prosecution in a county court of increased jurisdiction, an information is not even required. The prosecution may be upon the criminal complaint. This court has held that a criminal complaint in a county court of increased jurisdiction is the equivalent of an information as contemplated by our State Constitution. State v. Buehler (N.D.), 125 N.W.2d 155.

A more serious question is presented by the defendant's claim of error in permitting the State to introduce evidence obtained by a search of the defendant's premises without a search warrant. Officer Combs testified that he had no search warrant, but that he searched the defendant's garage, which is attached to the defendant's residence, because he had been informed by the State's Attorney that the defendant had given his consent that such a search be made. It further appears that the defendant, in testifying in his own behalf, did not deny having given the State's Attorney such permission to enter his garage. The State further points out that, in any event, the defendant's wife opened the garage door, thus giving implied consent to the search and waiving the necessity of securing a search warrant.

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