State v. McKenzie
| Decision Date | 24 April 1937 |
| Docket Number | No. 144.,144. |
| Citation | 273 N.W. 1,67 N.D. 443 |
| Parties | STATE v. McKENZIE. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. When one is arrested on a criminal complaint and the preliminary examination is had thereunder, with testimony taken and the defendant held to answer to the district court, it is the duty of the state's attorney, under the provisions of section 10629 of the Compiled Laws to file an information setting “forth the crime committed according to the facts ascertained on such examination and inquiry and from the written testimony taken before the magistrate, whether it is the offense charged in the complaint upon which the examination was had or some other offense.”
2. Section 9992 of the Compiled Laws, chapter 92 of the Session Laws of 1929 (section 2), makes it an offense for any one to willfully and unlawfully kill “any horse, mule, cow, calf or other neat cattle, or any sheep or swine, or poultry, the property of another, * * * ” and also makes it an offense for any one to commit “grand larceny of any livestock * * * above specified, the property of another. * * * ” An information which asserts that the defendant is guilty of “larceny of livestock” and charges that the defendant did “willfully, unlawfully, maliciously and feloniously kill, take, steal and carry away, said act being accomplished by fraud and stealth, one calf branded ... right ribs, said calf being then and there the property of another, to-wit: Lars Vanvig, and of a value in excess of Twenty and 00/100 Dollars ($20.00), with intent then and there wilfully, unlawfully, maliciously, and feloniously to deprive the owner thereof” charges grand larceny and is not subject to the objection that it charges two offenses.
3. Evidence examined and it is held: The State failed to prove the defendant guilty of the crime charged.
Appeal from District Court, Billings County; H. L. Berry, Judge.
J. A. McKenzie was convicted of larceny of livestock and from the judgment of conviction and from an order denying a new trial, he appeals.
Order denying new trial reversed.
T. F. Murtha and C. H. Starke, both of Dickinson, for appellant.
P. O. Sathre, Atty. Gen., and A. M. Kuhfeld, Sp. State's Atty., of Beach, for the State.
The complaint charged that on March 30, 1935 the defendant did “wilfully, maliciously and feloniously butcher and kill one yearling steer, branded ... on the right ribs; said steer then and there being the property of another, to-wit: the complainant. * * * ”
A preliminary examination was had, testimony taken, and the defendant held to the district court.
The information alleges “the crime of Larceny of Live Stock,” charging that the defendant, on the 2d day of January, 1935, did “wilfully, unlawfully, maliciously and feloniously kill, take, steal and carry away, said act being accomplished by fraud and stealth, one calf branded ... on right ribs, said calf being then and there the property of another, to-wit: Lars Vanvig, and of a value in excess of Twenty and 00/100 Dollars ($20.00), with intent then and there wilfully, unlawfully, maliciously, and feloniously to deprive the owner thereof.”
Upon arraignment the defendant filed a demurrer to the information, a “motion to set aside and to quash” the information, and an “objection to the introduction of any testimony” under the information. At the close of the State's case he moved to dismiss and renewed the motion at the close of the case. After verdict he moved arrest of judgment, and in a motion for a new trial incorporated the objections contained in these various motions.
We need not discuss these objections seriatim or refer to the documents in which they are set forth, but treat the bases briefly.
Defendant asserts the information was filed without a preliminary examination on the crime charged.
[1] A preliminary examination was held and testimony taken upon the complaint. Under the provisions of section 10629 of the Compiled Laws it is the duty of the state's attorney to set “forth the crime committed according to the facts ascertained on such examination and inquiry and from the written testimony taken before the magistrate, whether it is the offense charged in the complaint upon which the examination was had or some other offense.” There is no showing the state's attorney did otherwise. On this point see State v. Rozum, 8 N.D. 548, 80 N.W. 477;State v. O'Neal, 19 N.D. 426, 429, 124 N.W. 68.
[2] Another objection is that there are two crimes charged in the information.
The accusations are based on section 9992 of the Compiled Laws chapter 92 of the Session Laws of 1929 (section 2). This amended statute states:
Killing or selling or misbranding is subject to a specific penalty and may be committed in manifold ways. Undoubtedly the complaint was framed under this provision.
But this section specifically describes another crime-the grand larceny of such livestock. Clearly the information is based upon this portion, and section 9916 of the Compiled Laws says it is grand larceny “when the property taken is of value exceeding twenty dollars.”
The crime charged is not named “grand larceny”; but the name is merely the conclusion of the pleader. The crime charged depends upon the facts alleged rather than upon the name given. State v. Noah, 20 N.D. 281, 124 N.W. 1121;State v. Bossart et al., 62 N.D. 11, 241 N.W. 78. Thus, if the information sets forth grand larceny, it is immaterial that the pleader omits the word “grand.”
In order to charge grand larceny it was not necessary for the pleader to allege the defendant killed the calf. We do not deem it necessary to determine the word “kill” is surplusage nor that it is incumbent upon the State to prove killing. It is clear the calf died. Its alleged hide was introduced as an exhibit in the case, and without the calf. Thus, it is assumed the thief skinned it. But the information does not state two offenses.
The case was submitted to the jury and the defendant found “guilty as charged in the information of the crime of Larceny of Live Stock.” The defendant's motion for a new trial was denied, and judgment was duly pronounced. The defendant appealed from the judgment and from the order denying his motion for a new trial-the appeals being heard together.
All the matters involved in the demurrer, motion to quash, objection to the introduction of testimony, etc., were presented on appeal.
[3] The motion for a new trial specifies numerous alleged errors of the court; but we...
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State v. Mostad
...the limits we have heretofore approved. State v. Rozum, 8 N.D. 548, 80 N.W. 477;State v. O'Neal, 19 N.D. 426, 124 N.W. 68;State v. McKenzie, 67 N.D. 443, 273 N.W. 1. We think it well to point out, too, that the defendant was not entitled to a preliminary hearing as a matter of right. This t......