State v. Mostad

• Decision Date: 24 April 1940
• Docket Number: Cr. No. 169.
• Citation: 291 N.W. 910,70 N.D. 73
• Parties: STATE v. MOSTAD.
• Court: North Dakota Supreme Court

70 N.D. 73

291 N.W. 910

STATE

v.MOSTAD.

Cr. No. 169.

Supreme Court of North Dakota.

April 24, 1940.

Syllabus by the Court.

1. Motion to set aside amended information for want of preliminary examination was properly denied where complaint and amended information charged the same crime and contained the same allegations of particular acts of the defendant.

2. Defendant is not entitled, as a matter of right, to a preliminary examination before trial of a criminal action in County Court. Section 8964, Compiled Laws of North Dakota 1913, as amended by Chapter 121, Laws of North Dakota 1925.

3. Error, if any, in permitting testimony of witness, given at preliminary examination, to be read in evidence at trial, was not prejudicial, where all of the material facts testified to by the witness were admitted by the defendant.

4. Additional instruction, given by trial court at jury's request, is examined and held not error.

5. Sufficiency of evidence to sustain the verdict may not be reviewed upon appeal from judgment where there was no motion for an advised verdict or, after verdict, for a new trial.

Appeal from Ward County Court; Jos. J. Funke, Judge.

Thorwald Mostad was convicted of making a false statement in his certificate on an absent voter's ballot envelope, and he appeals.

Judgment affirmed.

B. H. Bradford, of Minot, for appellant. J. K. Murray, of Bismarck, for appellant on oral argument.

Alvin C. Strutz, Atty. Gen., and Roy A. Ilvedson, State's Atty., and B. A. Dickinson, Asst. State's Atty., both of Minot, for respondent.

BURKE, Judge.

An information charging the defendant with the commission of the crime of making a false statement in his certificate on an absent voter's ballot envelope was filed in the County Court of Ward County on November 28th, 1938. Defendant demurred to the information. The demurrer was sustained and the court ordered an amended information to be filed. The amended information charging the defendant with the commission of the same crime was filed December 3, 1938. Before pleading, the defendant moved to set aside the amended information upon the ground that he had had no preliminary examination upon the charge. The motion was denied and defendant pleaded not guilty. The case came on for trial before a jury on December 7, 1938, and the jury returned its verdict finding the defendant guilty as charged. Judgment of conviction was entered upon December 12, 1938. The defendant has appealed from the judgment.

There were eight assignments of error set forth in the specifications filed with the notice of appeal. Four of these we deem abandoned as they were not urged upon argument or in the brief. There remain for consideration specifications that the trial court erred in overruling defendant's motion to set aside the amended information; that it erred in permitting the testimony, given by the witness George at the preliminary hearing, to be read in evidence; that it erred in its instructions to the jury and that the evidence is insufficient to sustain a verdict of guilty.

Defendant's motion to set aside the amended information is based solely upon the ground that the defendant had had no preliminary examination upon the charge set forth therein.

[1][2] There is no merit in the specification. After a preliminary examination the defendant was held to answer to the charge of which he has been convicted The criminal complaint which was presented to the justice of the peace, before whom the preliminary hearing was had, and the original information filed in county court charged the same offense in identical language. The amended information contained the additional allegation that the defendant was, “A Notary Public, being an officer authorized by law to administer an oath and possessing a seal” at the time of the doing of the acts constituting the crime charged. In all other respects its allegations are identical with those contained in the complaint. The additional allegation of fact contained in the amended information did not change the nature of the crime charged, nor did it alter in any respect the allegations of the particular acts of the defendant which it was charged constituted the crime. Whatever variance there may have been between the information and the complaint is well within 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 trial was had in County Court. Section 8964, Compiled Laws of N.D.1913, as amended by Chapter 121, Laws of N.D.1925 provides: “No preliminary examination shall be necessary before trial in criminal actions in the County Court. * * *” The motion to set aside the information was properly denied.

At the trial, the court, over objection by defendant's counsel, permitted the testimony, given at the preliminary examination by the witness George, to be read in evidence. Defendant's contention is that the foundation for the admission of this testimony was defective in that it was not established that the witness George was absent from the state. Deputy Sheriff Lee testified that four or five days before the trial a subpoena for George was handed to him for service; that he attempted to locate the witness and was unable to do so; that he inquired of persons who knew the witness and also made inquiries at the place “where he had been when he was around town” and “learned he wasn't here”; that the persons of whom he inquired told him, “they thought he had gone”. While more positive proof of the absence of a witness from the state, as foundation for the reception of the testimony given at a previous trial or preliminary examination might be desirable, it is unnecessary for us to determine the sufficiency of the foundation here under attack. The information charged that the defendant wilfully and unlawfully made a false statement in his certificate upon an absent voter's ballot envelope in that he falsely stated “that one Leonard George, for whom an application purporting to be from Reno, Nevada, for absent voter's ballot was filed, exhibited an absent voter's ballot to said defendant unmarked, and thatLeonard George in the presence of the defendant in the presence of no other person, and in such manner that said def...