State v. Rickel
| Decision Date | 27 June 1939 |
| Docket Number | Cr. 165 |
| Citation | 286 N.W. 895,69 N.D. 329 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Chapter 162 of the Session Laws of 1927 is not open to the charge that it violates section 61 of the constitution on the theory that the provisions for punishment of violations of the act are not embraced in the title of the act. State v. Colohan, N.D., 286 N.W. 888, followed.
2. Rulings of the trial court on the introduction of testimony examined and found not shown to be prejudicial.
3. It was not error for the trial court to permit the State at the time of trial to endorse on the information additional names of witnesses when it was shown to the court that these witnesses were unknown to the State until the day before the trial.
4. Alleged error on the part of the counsel for the State, in making certain statements to the jury in his closing address examined and found to be without basis when the challenged remarks were merely reply to a statement the counsel for the defendant himself had made in his address to the jury.
5. Evidence examined and it is held, that the conviction is sustained by the evidence in the case.
Appeal from Cass County Court; P. M. Paulsen, Judge.
K. W Rickel was convicted of operating a motor vehicle while under the influence of intoxicating liquor, and he appeals.
Affirmed.
Leland J. Smith, for appellant.
Alvin C. Strutz, Attorney General, Ralph F. Croal State's Attorney, and Odin J. Strandness, Assistant State's Attorney, for respondent.
The information charged the defendant with operating a motor vehicle upon the streets of Tower City, Cass county, while under the influence of intoxicating liquor, the prosecution being had under the provisions of §§ 2 and 62 of chap. 162 of the Session Laws of 1927. The defendant was convicted and moved for a new trial. This motion was denied and the sentence of fine and imprisonment was inflicted.
The appeal is from the order denying the motion for a new trial and is based upon the same specifications of error. These allege that: chap. 162 of the Session Laws of 1927 is unconstitutional in so far as it attempts to punish for operating a motor vehicle while under the influence of intoxicating liquors; "That the court erred in overruling the objection of the defendant to the taking of testimony on the ground that the information failed to state facts sufficient to constitute a public offense;" that the court erred in numerous rulings in the introduction of testimony; that the court erred in admitting the testimony of witnesses whose names were not indorsed upon the information; that the counsel for the state was guilty of misconduct in his address to the jury; and that the evidence is insufficient to sustain the conviction.
The objection to the constitutionality of chap. 162 of the Session Laws of 1927 is based upon the claim that it violates § 61 of the state Constitution in that the title to the act is not sufficiently broad to cover that portion of the act dealing with this prosecution; and that if the title to the act be broad enough to provide penalty for violation of any of the provisions, nevertheless it is not sufficiently broad to include the penalty of imprisonment.
The title is: "An Act Regulating the Operation of Vehicles on Highways and Providing for Traffic Signs and Signals and Defining the Power of Local Authorities to Enact or Enforce Ordinances, Rules or Regulations in Regard to Matters Embraced within the Provisions of This Act and to Provide for the Enforcement of This Act and the Disposition of Fines and Forfeitures Collected Hereunder and to Make Uniform the Law Relating to the Subject Matter of This Act."
The defendant says that if the phrase "to Provide for the Enforcement of This Act" is broad enough to permit a prosecution for any offense described in the act, nevertheless the phrase which follows -- "and the Disposition of Fines and Forfeitures Collected Hereunder" -- limits the penalty to mere fines and forfeitures, that the latter phrase makes no provision for imprisonment, and therefore the inclusion in § 62 of the penalty of imprisonment is the inclusion of a subject not within the title. The specification of error dealing with the overruling of the objection to the taking of testimony is based upon the same grounds. Such matters are settled in the case of State v. Colohan, ante, 316, 286 N.W. 888, decided at this term, and need not be considered here. These specifications of error are not well founded.
The alleged errors in the rulings of the court on the introduction of testimony, broadly speaking, are based more upon the subjects of examination allowed and disallowed rather than the forms of question. The basis of the prosecution was a collision between a car driven by the defendant and one owned and driven by the witness Wishnvski. This witness testified as to the collision on a public street of Tower City, the intoxicated condition of the defendant at that time, the immediate arrest of the defendant, and some proceeding before a justice of the peace two days afterwards involving either a claim for damages to his car or some other matter, the record being extremely indefinite in this respect. The defendant attempted to show that in this proceeding Wishnvski had been paid some twenty dollars, and, objection being made by the state, defendant claimed he had a right to show that the amount Wishnvski was more than what the latter paid for the fixing of the car and the repairing of the damages. Defendant's counsel, in his colloquy with the trial court in this case, states his understanding of the court's ruling to be that he was "foreclosed from inquiring or from establishing that the amount that the witness received through this court proceeding in the Justice of Peace court in Tower City was more than what he actually paid or what it cost him to fix up his car." We see no error in the ruling of the court in this matter.
The defendant claims the court erred in admitting testimony of certain witnesses relative to the intoxication of the defendant at a time subsequent to the collision and too remote. The testimony of the state shows that at the time of the collision the defendant was under the influence of intoxicating liquor. While defendant was arguing with Wishnvski at the time of the collision Mrs. Wishnvski went for the marshal, who found the defendant in a poolroom about an hour after the collision. There is testimony that the defendant went to another poolroom shortly afterwards. Witnesses testified as to his intoxicated condition at that time, which was all within an hour after the collision. There is testimony that he did not purchase any intoxicating liquors in the poolroom and testimony that he did -- the state...
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