State v. Pleason

• Decision Date: 24 February 1928
• Citation: 56 N.D. 499,218 N.W. 154
• Parties: STATE v. PLEASON.
• Court: North Dakota Supreme Court

56 N.D. 499

218 N.W. 154

STATE

v.PLEASON.

Supreme Court of North Dakota.

Cr. 5.

Feb. 24, 1928.

Syllabus by the Court.

The provision that “no time during which the defendant is not an inhabitant of, or usually resident within, this state,” is part of the period for prosecution in criminal cases, found in section 10523 of the Compiled Laws of 1913 as amended by chapter 124 of the Session Laws of 1925, is applicable to a crime committed prior to the going into effect of the amendment where the period of limitation giving a right to acquittal specified in section 10522 had not been completed prior to the going into effect of this amendment.

Appeal from District Court, Cass County; J. A. Coffey, Judge.

David J. Pleason was convicted of importing into the state, and possessing, alcohol and he appeals. Affirmed.G. H. Rustad, of Moorhead, Minn., and Allen W. Wood, of Fargo, for appellant.

J. C. Pollock, State's Atty., and J. W. Pollock, Asst. State's Atty., both of Fargo, for the State.

BURR, J.

On May 16, 1925, a complaint was filed in justice court charging the defendant with engaging in the liquor traffic on September 9, 1924, by knowingly, willfully, and unlawfully importing into the state and possessing 1,600 gallons of alcohol contrary to the statutes in such cases made and provided, etc. Defendant was brought into court on October 7, 1925, and furnished bail in the sum of $2,500. Nothing further appears to have been done until the 20th day of December, 1926, when the defendant waived examination and was held to answer to the district court. The record says:

“The defendant, already having furnished a bail bond in the sum of $2,500, and same having been approved by me, is ordered discharged thereunder.”

On February 18, 1927, the state's attorney filed an information against the defendant in the district court, charging the defendant with engaging in the liquor traffic on or about September 9, 1924. The defendant demurred to this information, principally on the ground “that the information was not filed in the district court of Cass county, N. D., within two years after the commission of the offense alleged in said information,” etc. This demurrer was sustained, and thereupon the state filed an amended information for the same offense, charging in addition “that at all the times herein mentioned and since the commission of the crime herein set forth the said defendant was not an inhabitant of or usually resident within the state of North Dakota;” and the defendant demurred to this information on the same ground. This demurrer was overruled, the case was tried to a jury, the defendant convicted, and judgment and sentence passed upon him. From this judgment of conviction the defendant appeals.

In his brief the defendant says:

“It is an admitted fact that the defendant was not a resident of the state of North Dakota at the time of the alleged crime but that he had resided in the state of Minnesota, and that he continued his residence in the state of Minnesota after the filing of the bond, as hereinbefore stated.”

Further in his brief defendant says:

“There is only one question involved in this appeal, and that is whether or not section 10523 of the Statutes of North Dakota are (is) applicable to a nonresident defendant, who, after his arrest, appears within the jurisdiction of the court, and files an approved bond for his appearance. In other words, does the statute apply in a case where a nonresident defendant files a bond for his appearance.”

All specifications of error center on this proposition. In this latter admission the defendant attempts to limit the law of the case to section 10523 of the Code, ignoring the amendment as set forth in chapter 124 of the Session Laws of 1925, but later he argues against the application of the provision of this chapter 124 of the Session Laws of 1925.

The undisputed facts show that the defendant was present in the state of North Dakota when the crime was committed; therefore section 10523 of the Code, standing alone, does not apply to this case, as this crime was committed while the defendant was in the state. See State v. Clemens, 40 Mont. 567, 107 P. 896, though People v. Montejo, 18 Cal. 38, holds expressly to the contrary. Section 10522 requires an information to be filed within two years after the commission of a misdemeanor; therefore the information was not filed within the time prescribed by statute, unless the amendment to section 10523 of the Code applies to the case at bar. Chapter 124 of the Session Laws of 1925 says:

“* * * If the defendant is in the state when the crime is committed and subsequently leaves the state, the information may be filed, or the indictment found, within the time herein limited, after his coming within the state, and no time during which the defendant is not an inhabitant of, or usually resident within this state, is part of the limitation.”

This law became operative July 1, 1925, and the defendant says it does not apply to crimes committed prior to that date, otherwise it would be an ex post facto law, and that this law cannot be given a retroactive effect. True, our Constitution prohibits ex post facto laws (section 16, Const.); but this law is not an ex post facto law. The classic decision regarding ex post facto laws is Calder et al. v. Bull et al., 3 Dall. 386, 1 L. Ed. 648, where Justice Chase defines such a law as:

“1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was, when committed. 3. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”

It is clear this amendment does not come within any of the classes included in the definition, and of late years some doubts have been expressed as to whether every law which may come within the fourth class-the one dealing with evidence-is really an ex post facto law. See 6 R. C. L. 297.

It is claimed by the defendant the law cannot be given a retroactive effect. In principle there is no difference between a retroactive law and a retrospective law. In Sturges v. Carter, etc., 114 U. S. 511, 519, 5 S. Ct. 1014, 1018, 29 L. Ed. 240, 243, the Supreme Court of the United States adopts and approves the definition of a retroactive or retrespective law as one “which takes away or impairs vested rights acquired under existing laws, or...