State v. Pedie

• Decision Date: 09 April 1929
• Docket Number: Cr. No. 33.
• Citation: 224 N.W. 898,58 N.D. 27
• Parties: STATE v. PEDIE.
• Court: North Dakota Supreme Court

58 N.D. 27

224 N.W. 898

STATE

v.PEDIE.

Cr. No. 33.

Supreme Court of North Dakota.

April 9, 1929.

Syllabus by the Court.

The district court of a county is always open to hear and determine motions and applications in criminal actions, and, where a defendant charged with crime in that county is brought before the judge at chambers in that county for the purpose of hearing matters involving said defendant, and all of the officers of the court are present, the court is in session, and it is proper to file the information at that time.

Where a defendant is brought before the court upon the charge of arson in the third degree, and the information fails to allege malice, either in the language of the statute or otherwise, such information does not charge the crime of arson in any degree.

Appeal from District Court, Bottineau County; G. Grimson, Judge.

Selma W. Pedie was convicted of arson in the third degree, and she appeals. Reversed and remanded.

J. J. Weeks, of Bottineau, for appellant.

A. Benson, State's Atty., and O. B. Benson, Asst. State's Atty., both of Bottineau, for the State.

BURR, J.

The defendant was arrested July 31, 1928, charged with arson in the third degree. She waived preliminary examination, and was held to answer to the district court of Bottineau county. No term of the court had been called, but the next day one of the judges of the district court was in Bottineau, and there were present in the courthouse, for the purpose of holding court, the district judge, court reporter, state's attorney, sheriff with the defendant in custody, and defendant's husband, but no counsel for defendant. At that time an information was filed, the defendant arraigned, and, after some discussion, wherein the obtaining of counsel was suggested, the defendant entered her plea of guilty, was sentenced to serve four years in the penitentiary, and was committed. From the judgment of conviction, the defendant appeals.

Appellant presents three matters on this appeal: First, that the information was filed in vacation time, without having the duly verified statement of the state's attorney in writing filed as provided for in subdivision 6 of section 10628, Compiled Laws, though the written confession of defendant was filed, admitting guilt, therefore all of the proceedings thereunder are void and the judgment erroneous; second, that, at the time of the reception of the plea of guilty and the passing of sentence, a doubt arose as to the sanity of the defendant, and therefore no judgment should have been pronounced without first having the question of sanity determined; third, that the information does not state facts sufficient to constitute a public offense.

[1] The general rule is that, “in the absence of a statute to the contrary, informations may be properly filed with the Clerk of Court in vacation.” 31 C. J. 637; State v. Kyle, 166 Mo. 287, 65 S. W. 763, 769 (56 L. R. A. 115). Our attention is not called to any statute specifically forbidding the filing of an information at any time desired by the state. However, section 10628 of the Compiled Laws says:

“During each term of the district court held in and for any county, * * * the state's attorney of the county * * * shall file an information * * * against all persons accused of having committed a crime or public offense within such county.”

And, after specifying four causes or occasions when such information may be filed, adds a fifth, stating:

“At any time, when the person accused of a crime * * * is a fugitive from justice and such information may be needed by the governor of this state to demand such person from the executive authority of any other state. * * *”

This would intimate that ordinarily informations can be filed during a term of court only. This intimation is suggested also in State v. Kilmer, 31 N. D. 442, 447, 153 N. W. 1089, 1090 (Ann. Cas. 1917E, 116) where it was held that “informations can be filed during, as well as at the beginning of the term where no grand jury is in session nor called.” The section quoted is part of the original statute adopted when we became a state, and is included in the Code of 1895. Through chapter 153 of the Session Laws of 1911 an amendment was added, which became subdivision 6 of the section. This provides that, when the state's attorney presents “to the district judge his statement in writing, duly verified, that an accused held for trial after preliminary examination or waiver thereof desires to forthwith enter a plea of guilty said statement when accompanied by a written confession of guilt of the person so accused of said crime, duly signed by such person so accused, shall be sufficient upon which such district judge in his discretion may order the state's attorney of the county wherein said defendant is held for trial to forthwith file a criminal information against such person with the clerk of the district court of such county; * * * provided, that after the filing of said information by such clerk the defendant and state's attorney may appear with such clerk in district court chambers before the judge anywhere within the judicial district of which such county * * * is a part, and said district judge may thereupon * * * pronounce final judgment * * * with the same force and effect as though the same were done in open court in the county in which such information was so filed with such clerk.”

This authorizes the filing of the information when the judge is not present, and is a part of the procedure provided for permitting the defendant to consent to proceedings in another county in the same judicial district and accept his punishment without waiting until such time as the judge of the district court could be present. It is the authority for taking the defendant to another county, an exception to the rule that an information can be filed in term time only.

But under the provisions of section 10399 of the Compiled Laws the district court of Bottineau county is “always open for the purpose of hearing and determining all questions, motions and applications of every kind and character in criminal actions or proceedings * * * except issues of fact. * * * But issues of fact in all criminal actions or proceedings must be tried at a regular term of the court in the county * * * in which the same is legally brought or to which the place of trial is changed as provided by law.”

Not only is the district court of Bottineau county always open, but the judge, the reporter, the clerk, and the sheriff were all present, and court was held, even though it was not a regular term. The crime charged is alleged to have been committed in Bottineau county; the defendant was in Bottineau county; the record shows her to be a resident of Bottineau county; the...