State v. Prince

• Decision Date: 09 July 1947
• Docket Number: Cr. No. 207.
• Citation: 28 N.W.2d 538,75 N.D. 386
• Parties: STATE v. PRINCE.
• Court: North Dakota Supreme Court

28 N.W.2d 538

75 N.D. 386

STATE v. PRINCE.

Cr. No. 207.

Supreme Court of North Dakota

July 9, 1947

Syllabus by the Court.

1. Where a criminal information is not challenged in the trial court by a motion to set aside, a motion to quash or a motion in arrest of judgment and the question of its sufficiency is raised for the first time on appeal, the information will be construed with less strictness than if its sufficiency had been questioned in the court below.

2. Where an information charges the offense in terms of substantially the same meaning as those used in the statute and is sufficient to give the court and the defendant notice of the offense which is intended to be charged, it will be held sufficient as against a challenge raised for the first time on appeal to the Supreme Court.

3. Where a statute prohibits the performance of an act without prescribing a penalty for its violation, the doing of such act is a misdemeanor under the provisions of Section 12-1727 R. C. N.D. 1943, and is punishable by the penalty provided by Section 12-0614, R. C. N.D. 1943.

Nels G. Johnson, Atty. Gen., Richard P. Rausch, Asst. Atty. Gen and George S. Register, State's Atty., of Bismarck, for plaintiff and respondent.

Scott Cameron, of Bismarck, for defendant and appellant.

MORRIS, Judge.

On November 6, 1946, a criminal information was filed in the District Court of Burleigh County, charging that the defendant '* * * did commit the crime of selling intoxicating liquor to a minor, committed in the manner following, to-wit: That at the said time and place the said defendant did then and there wilfully and unlawfully sell intoxicating liquor to a minor (to-wit: to Robert Godfrey, who was then of the age of eighteen years or thereabouts).' On the same day the defendant was arraigned and appearing in person and by counsel, entered a plea of not guilty. On November 30, 1946 the defendant appeared in person and by counsel and withdrew his plea of not guilty and entered a plea of guilty to the crime of selling intoxicating liquor to a minor. On January 6, 1947, the defendant again being present in court and being represented by counsel, the State's Attorney moved pronouncement of sentence. The Clerk's minutes show that at that time defendant's attorney '* * * objects to the passing of any sentence on the Defendant because, he says, there is no penalty on the matter in the statute as amended, and for that reason says no sentence be pronounced.' On January 11, 1947, the court sentenced the defendant to thirty days in the county jail and a fine of $50 and costs taxed at $10. In default of the payment of fine and costs the defendant was ordered committed to jail for an additional thirty days. This appeal is taken from the judgment and sentence thus pronounced.

The defendant specifies the following errors:

'I. The Court erred in pronouncing judgment and sentence on the Defendant in the crime of selling intoxicating liquor to a minor for the reason that the same offense is not a crime and was not a crime at the time of the entry of judgment.

'II. The Court erred in entering judgment and imposing sentence on the Defendant for a term (30) days in jail and payment of a fine of Fifty Dollars ($50) and costs for the reason that the Court was without authority and jurisdiction to impose said sentence for the reason that there was no penalty provided by law at the time of entry of said judgment.'

The first question is whether the information states and the defendant plead guilty to a criminal offense under the statutes of North Dakota. At the time of the commission of the alleged offense and the imposition of sentence therefor, Ch. 52, Sess. Laws N.D. 1945, provided: 'No person shall sell or deliver any beer, alcohol or alcoholic beverages to any person under the age of 21 years, incompetent person, Indian as defined by federal law, or a person who is an inebriate, or habitual drunkard.'

The statute also repealed Secs. 5-0210 and 5-0318, R. C. N.D. 1943. ^[*] The latter section read as follows: 'No person shall sell any liquor to a minor, incompetent person, Indian as defined by federal law, or a person who is an inebriate, or habitual drunkard.' The important change made by the new statute was the substitution of 'any person under the age of 21 years' in place of a 'minor'.

Sec. 14-1001, R. C. N.D. 1943, defines minors as:

'1. Males under twenty-one years of age; and

'2. Females under eighteen years of age.'

The change thus wrought by the statute added to the list of those to whom the sale of alcoholic beverages was forbidden, females between the age of eighteen and twenty-one years.

Under Par. 2 of Sec. 29-1110, R.C.N.D. 1943, an information is valid and sufficient if it charges the offense in terms of the statute or '* * * in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of the offense which is intended to be charged.' The sufficiency of the information was not challenged by a motion to set aside, a motion to quash or a motion in arrest of judgment. The only objection to passing sentence was made orally and upon the ground that no penalty was provided by the statute.

The information in question charges that the defendant sold intoxicating liquor to a minor, that his name was Robert Godfrey, and that he was of the age of eighteen years or thereabouts. The sufficiency of this language is challenged for the first time on this appeal. Under these circumstances the wording of the information will be viewed less strictly than if it had been challenged in the court below. See State v. Johnson, 17 N.D. 554, 118 N.W. 230; State v. Rhoades, 17 N.D. 579, 118 N.W. 233; State v. Anderson, 66 N.D. 522, 267 N.W. 121.

When these proceedings are viewed as a whole there can be no question but that the defendant was not misled and that he voluntarily plead guilty to the commission of an act forbidden by statute, namely, the sale of alcoholic beverages to a person under twenty-one years of age.

The second specification of error challenges the right of the court to impose the sentence. It is argued that since Ch. 52, Sess Laws N.D. 1945,...