State v. Riley
| Decision Date | 20 November 1913 |
| Citation | 144 N.W. 107,26 N.D. 236 |
| Court | North Dakota Supreme Court |
Appeal from a judgment of the District Court of Sargent County, Hon Charles M. Cooley, Special Judge.
Affirmed.
J. A Dwyer, for appellant.
The complaint and the information charge two distinct, separate offenses, and the motion to set aside the information should have been granted. State v. Winbauer, 21 N.D. 161 129 N.W. 97.
No order of the magistrate as to his finding upon the examination is indorsed on the complaint, or entered in his docket. One or the other is essential. State v Rozum, 8 N.D. 556, 80 N.W. 477; State v. O'Neal, 19 N.D. 426, 124 N.W. 68.
Court for a given district composed of a number of counties cannot be held in two or more of such counties at the same time. Tippy v. State, 35 Neb. 368, 53 N.W. 208; Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; Re Millington, 24 Kan. 214; Garlick v. Dunn, 42 Ala. 404; Freeman, Judgm. § 121; Bates v. Gage, 40 Cal. 183; Smurr v. State, 105 Ind. 125, 4 N.E. 445, 7 Am. Crim. Rep. 545; Grable v. State, 2 G. Greene, 559; State v. Stevens, 67 Iowa 557, 25 N.W. 777, 6 Am. Crim. Rep. 88; 11 Cyc. 735; Courts, 13 Century Dig. 243.
Andrew Miller, Attorney General, Alfred Zuger, and John Carmody, Assistant Attorneys General, for respondent.
This case was tried during the general term of court for Sargent county, and Judge Cooley, the now resident judge, who was called in to try the case, had jurisdiction, even though Judge Allen, the judge of said court, was then holding court in another county in said district. Rev. Codes 1905, §§ 6765, 9929; State v. Stevens, 67 Iowa 557, 25 N.W. 777, 6 Am. Crim. Rep. 88; Harris v. Gest, 4 Ohio St. 469.
An information against the appellant was filed in the district court of Sargent county on the 7th day of September, 1911 subscribed and sworn to by the state's attorney of that county, charging that appellant on the 27th day of June, in 1911, and continuously from day to day, from the 1st day of January, 1911, to the commencement of this action, . . . did commit the crime of keeping and maintaining a common nuisance, etc. On or about September 7, 1911, in the district court of such county, she entered a plea of not guilty. The case was continued from term to term until the February, 1913, term of that court, when, on the first day of the term, it was called and set for trial. No other information was ever filed against her. When the case was reached, she appeared specially by attorney and was permitted to withdraw her plea of not guilty, and, on February 10, 1913, she filed a motion to quash the information, upon the grounds, (1) that she never had nor waived a preliminary examination upon the charge contained in the information; (2) that she had never been adjudged or required or bound to appear at that court, to answer any charge whatever; (3) that the district court of Sargent county had never acquired nor had jurisdiction of the person of the defendant from the lower court, and that she never was committed to the jurisdiction or custody of the district court by the committing magistrate who pretended to hear her case; (4) that the information did not state facts sufficient to charge defendant with any public offense; (5) that said information was not made, drawn, and presented in substantial compliance to the statutes of the state relating thereto, and in particular, because it shows on its face that it never was presented to the court in open court, as is required by law. In support of this motion, her counsel asked the court to take judicial notice of all its records and files in said cause, including the return of the justice of the peace in a cause similarly entitled. The records of the magistrate to which reference was made show a criminal complaint made against her by the state's attorney, charging her with having maintained a common nuisance in said county since the 1st day of January, 1911, and previous to the 27th day of June, 1911, in that, at sundry and divers times between those dates, she sold, bartered, and gave away intoxicating liquors, etc. In construing the law relating to this case, for reasons which will appear later, it is not necessary to notice the record relating to the proceedings on that complaint in the magistrate's court, or the reference to its being filed with the return in the district court. The motion to quash was denied, and an exception taken to the order denying it. On February 13, 1913, the defendant presented and filed her affidavit of prejudice, as provided by § 9929, Rev. Codes 1909, and amendments thereto, and requested the judge to arrange and procure some other judge to preside at the trial in his place, and in pursuance of such affidavit, Hon. Charles M. Cooley, judge of the first judicial district, upon the written request of Hon. Frank P. Allen, judge of the fourth judicial district, in which Sargent county is located, was secured and the trial set for February 18, 1913. On that day, Judge Cooley being present and presiding, and it being a day of the regular February, 1913, term of the district court for Sargent county, which term is fixed by law to commence on the first Tuesday of February, the case was called for trial, whereupon defendant filed objections to the trial, or the taking of any proceedings whatever in said action at that time and place before Judge Cooley, for the following reasons: (1) That there is no session of said district court of said Sargent county now being held there; (2) that Hon. Charles M. Cooley is not the judge of said district court, and is not sitting or acting as the judge of said district court in any manner or upon any cause authorized by law; (3) that the Hon. Frank P. Allen is the sole judge of that court and district, and that he is now sitting as a judge of said district court at Wahpeton, in the county of Richland, holding a regular term of said court in Richland county, namely, the January, 1913, term, and is actually engaged in the trial of an action at law, with a jury; (4) that the trial at such time and place and before Judge Cooley would be a denial of the rights of the defendant guaranteed by the Constitution, and contrary to the provisions of § 1, article 14, of the Amendments of the Constitution of the United States; and in support thereof, she showed that the regular January, 1913, term of the district court for Richland county, commenced on the 7th day of January, 1913, and, about the 31st day of January, 1913, was adjourned to the 18th day of February, 1913; that a petit jury was in attendance upon that court, and upon such adjournment the jurors were ordered to appear for service on the 18th day of February, 1913, at 9:30 o'clock in the forenoon; that they are now in attendance upon said court, and said court is actually engaged in the active discharge of its duties or functions at this time. The court was requested to take judicial notice of the fact that Richland county was within, and a part of, the fourth judicial district. This objection was overruled and an exception taken, whereupon the defendant demurred to the information on the ground that the court had no jurisdiction of the offense charged, and, in brief, because the record from the justice court, which pretended to hold a preliminary examination, shows on its face no such examination was held according to law; that no judgment was rendered by the justice committing the defendant to the jurisdiction of the district court; that the proceedings before the justice were irregular, as shown by the files and records transmitted to the district court, in a cause similarly entitled; that the information does not comply in form to the requirements of the Code, and more than one offense is charged therein; that it contains matter which would constitute a legal bar to the prosecution of this...
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