State v. Medearis

• Decision Date: 25 February 1969
• Docket Number: Cr. N
• Citation: 165 N.W.2d 688
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Wayne Blair MEDEARIS, Defendant and Appellant. o. 374.
• Court: North Dakota Supreme Court

Page 688

165 N.W.2d 688

STATE of North Dakota, Plaintiff and Respondent, v. Wayne Blair MEDEARIS, Defendant and Appellant.

Cr. No. 374.

Supreme Court of North Dakota.

Feb. 25, 1969.

Syllabus by the Court

1. Where a criminal complaint does not show the signature of the officer administering the oath to the complainant but the court docket states that the complainant made and filed his sworn complaint, and the correctness of the docket entry is not challenged, the complaint is sufficient.

2. Where a criminal complaint does not state the county in which it is alleged the crime charged was committed but more particularly describes the geographical location of the alleged crime from which description judicial notice may be taken as to the county, and the territorial jurisdiction of the court in which the complaint was prosecuted is not disputed, the complaint will not be held insufficient in a post-conviction proceeding.

3. A criminal complaint which sets forth the facts, act, and circumstances with sufficient certainty to apprise the defendant with reasonable certainty of the charge made against him, and also sets forth a section of the statute creating the offense, the charge is stated with sufficient certainty.

4. Section 33--12--34, N.D.C.C., governing withdrawal of pleas of guilty in justice court, is not applicable to the county court with increased jurisdiction.

5. A county court with increased jurisdiction is governed by Section 29--14--22, N.D.C.C., when application is made to withdraw a plea of guilty. This section vests the county court with discretion in such a case.

6. The record in this case has been reviewed and it is held, for the reasons stated in the opinion, that the county court with increased jurisdiction did not abuse its discretion in denying the defendant's application to withdraw his plea of guilty.

Lester J. Schirado, State's Attorney, Mandan, for plaintiff-respondent.

Floyd B. Sperry, Bismarck, for defendant-appellant.

TEIGEN, Chief Justice.

The defendant has appealed from a judgment and sentence entered on a plea of guilty to the crime of driving a motor vehicle while under the influence of intoxicating liquor, and a subsequent order denying his application to withdraw the plea of guilty. These proceedings were had in the county court with increased jurisdiction of Morton County. This appeal comes to us upon the judgment roll without a settled statement of the case.

The sole record on the conviction consists of a uniform traffic complaint and summons, the court's docket, and the judgment and sentence. The sole record on the subsequent proceedings consists of the defendant's application to withdraw his plea of guilty and for a new trial, the court's order denying the same, and a docket entry.

From the record before us, it appears that on September 23, 1968, the defendant voluntarily appeared before the court, without an attorney, in response to a uniform traffic complaint and summons issued on September 14, 1968; upon arraignment he entered a plea of guilty to the crime charged in the uniform traffic complaint and summons, denominated as 'drove while under the influence of alcohol. All in violation of Section 39--08--01 of the N.D. Century Code, as amended * * *' He was sentenced to pay a fine in the amount of $100.

On September 27, 1968, the defendant executed an application to withdraw his plea of guilty and asked for a new trial. This application apparently came on for hearing on October 3, 1968, at which time the defendant appeared in person with an attorney. The application was resisted by the State's Attorney of Morton County. On the same day the judge denied the application and entered a written order of denial.

The defendant, in his formal application to withdraw the plea of guilty, sets forth two reasons in support of the application. The first is that he did not have the advice of counsel before entering a plea of guilty; and, secondly, that at the time of entering the plea the defendant did not understand that his driver's license would be suspended. According to the court docket, the defendant orally moved for a withdrawal of his plea of guilty upon the additional ground of insufficiency of the complaint. According to the docket entry, this ground was also denied.

Apparently no evidence was submitted in support of or in resistance to the defendant's application and, in reviewing the judgment and order appealed from we are restricted to the judgment roll.

The defendant, in his arguments and brief, has set forth three issues. They are as follows:

'1. Was the complaint sufficient?

'2. Did the defendant timely raise the issue as to the sufficiency of the complaint?

'3. Did the court err in refusing to grant the defendant's application for the withdrawal of his plea of guilty, and for a new trial?'

The defendant contends that the complaint was not sufficient for the reason that the complainant's signature was not sworn to; that it does not state the name of the county in which the offense was alleged to have been committed; and that it does not properly name the charge.

The complaint used in this action is one provided for by Section 29--05--31, N.D.C.C. This section sets forth the form of a uniform traffic complaint and summons. The form of complaint set forth in this statute provides space for the complainant's signature to be subscribed and sworn to. The complainant's signature appears upon the complaint but the complaint does not carry the signature of an officer entitled to administer the oath. However, the court's docket states that 'complainant made and filed in this Court, his sworn complaint * * *' The correctness of the docket entry is not challenged by the defendant. We must assume, therefore that the county judge swore the complainant but failed to evidence this fact by affixing his signature to the complaint. The docket entry, we find, is sufficient proof that the complaint was sworn to by the complainant.

The second contention that the complaint does not show where the offense was alleged to have been committed we also find is without merit. The complaint states that the alleged crime occurred on a public highway, Old 10 1/4 N.W. of New Salem. We take judicial notice of the fact that New Salem is a town located within Morton County, North Dakota. We find that the complaint does, with sufficient clarity, advise the defendant that the crime alleged occurred in Morton County, North Dakota.

The form of complaint used in this instance is one authorized by Section 29--05--31, N.D.C.C. This statute provides that when the complaint set forth therein is used, the State's Attorney shall not be required to make another complaint of the offense charged. For this reason Section 29--05--01, N.D.C.C., which defines a criminal complaint, does not govern. In State v. Buehler, N.D., 125 N.W.2d 155, we held that Article I, Section 8, of our Constitution requires that every criminal prosecution for a misdemeanor must be by indictment or information. We also held in that case that the criminal complaint was the equivalent of an information, as contemplated by our Constitution. We concluded that the complaint was in essence an information which fulfilled the constitutional requirement and was the means by which the county court with increased jurisdiction in that case obtained jurisdiction. We feel that case governs this one.

Section 29--01--13, Subsection 4, N.D.C.C., defines an information as '* * * an accusation in writing, in form and substance like an indictment for the same offense * * *.' An indictment is defined in Subsection 2 of the same section as '* * * an accusation in writing presented by a grand jury * * *.' In Section 29--11--17, N.D.C.C., dealing with informations and indictments, it is stated that 'an indictment or information need contain no allegation of the place of the commission of the offense, unless such allegation is necessary to charge the offense under Section 29--11--10. The allegation that the defendant committed the offense in all cases shall be considered an allegation that the offense was committed within the territorial jurisdiction of the court. * * *' We find no requirement in the statutes that the name of the county must be alleged. We believe that to describe the geographical location of the alleged crime more specifically than to name the county does not constitute error, and especially when, as here, the territorial jurisdiction of the court is not disputed.

The defendant also argues that the complaint does not properly name the charge. The charge is stated in the complaint as follows: 'Drove while under the influence of alcohol. All in violation of Section 39--08--01 of the N.D. Century Code, as amended * * *' The statute cited in the complaint provides that 'no person shall drive * * * any vehicle upon a highway in this state if:

'a. * * *

'b. He is under the influence of intoxicating liquor.'

The word 'drove' is the past tense of the word 'drive' and 'intoxicating liquor' is any liquor intended for use as a beverage which contains alcohol in such proportion that one who drinks it may come under its influence. We believe that being under the influence of alcohol is synonymous with being under the influence of an intoxicating liquor. Section 29--11--10, N.D.C.C., in part, provides that an information may refer to a section or subsection of any statute creating the offense charged therein and in determining the validity or sufficiency of such information, regard shall be had to such reference. When the facts, act, and circumstances are set forth with sufficient certainty, it is not a fatal defect that the information or the complaint gives an erroneous name to the charge. We have so held pertaining to indictments. State v. Marcks, 3 N.D. 532, 58 N.W. 25; State v. Bendickson, 62 N.D. 201, 242 N.W. 693.

We find that the complaint informed the defendant with reasonable certainty of the charge made against him and is...