State v. Rother

• Decision Date: 07 June 1928
• Docket Number: No. 9.,9.
• Citation: 219 N.W. 574,56 N.D. 875
• Parties: STATE v. ROTHER.
• Court: North Dakota Supreme Court

56 N.D. 875

219 N.W. 574

STATE

v.ROTHER.

No. 9.

Supreme Court of North Dakota.

April 20, 1928.

Rehearing Denied June 7, 1928.

Syllabus by the Court.

Under section 10641, C. L. 1913, authorizing the challenging of an individual grand juror on the ground that a state of mind exists on his part in reference to the case, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging, and section 10728, C. L. 1913, which provides that, when the defendant had not been held to answer before the finding of the indictment, the indictment must be set aside by the court in which the defendant is arraigned, upon his motion, on any ground which would have been a good ground for a challenge to an individual grand juror, it is error, prejudicial to the rights of the defendant, for the trial court to refuse a defendant, who has moved to set aside an indictment on one of the grounds specified in the statute, opportunity to adduce proof in support of the motion.

It is a primary rule of statutory construction that the intention of the lawmaker is to be found in the language that he has used. The Legislature must be understood to mean what it has plainly expressed, and if a law is plain and within the legislative power, it declares itself and the courts have only the simple and obvious duty to enforce the law according to its terms.

In the instant case, it is held that the trial court erred in instructing the jury that, if they should find one A. guilty of exhibiting a false paper to the deputy state examiner, with intent to deceive, then they would have to find that the defendant Rother aided and abetted A. in committing the crime.

Appeal from District Court, Rolette County; Lowe, Judge.

F. C. Rother was convicted of exhibiting a false paper to one authorized to examine the condition of a banking association, and he appeals. Reversed and remanded.

Section 5174, Supplement to the 1913 Compiled Laws of North Dakota, provides:

“Every officer, agent or clerk of any association organized under this chapter, who willfully and knowingly subscribes or makes any false statements or entries in the books of such association, or knowingly subscribes or exhibits any false paper with intent to deceive any person authorized to examine as to the condition of such association, or willfully subscribes or makes any false report, shall be guilty of forgery as defined in the Penal Code of the state of North Dakota and punished accordingly.”

The defendant was indicted in the district court of Towner county for a violation of this section by exhibiting a false paper to a person authorized to examine as to the condition of a banking association. The indictment charged that the offense was committed as follows, to wit:

“That at the said time and place, the said F. C. Rother, then and there being an officer, to wit, the president of the Towner County Bank, a banking association then and there duly organized and existing under and by virtue of the laws of the state of North Dakota and engaged in the banking business at Perth, Towner county, N. D., and as such president, having the general management of the business and control of the property, books, records, and assets of said bank, did then and there willfully and knowingly, unlawfully and feloniously, and with intent to deceive, exhibit to J. L. McRae, a person authorized to examine, and then and there examining said Towner County Bank as to its condition, a false paper, to wit, a writing purporting to be a promissory note made, executed and delivered by one Margaret Hood, dated January 14, 1922, wherein and whereby said Margaret Hood promised and agreed to pay to the order of said Towner County Bank the sum of $1,700 on the 1st day of November, 1922, with interest thereon, a more accurate description of which said purported note cannot be given, whereas in truth and in fact the said pretended note was then and there false, fraudulent, fictitious, and forged and constituted no obligation of the said Margaret Hood and was of no value, and the said F. C. Rother did then and there and at the time of exhibiting such false paper know said pretended note to be false, fraudulent, fictitious, and forged.”

Defendant entered a plea of not guilty. He also moved for a change of venue on the first three grounds specified in section 10756, C. L. 1913. The place of trial was changed to Rolette county upon order of the court enteredpursuant to stipulation of the parties. Later he asked leave to withdraw the plea for the purpose of interposing a motion to quash the indictment. The application to withdraw the plea for the purpose of moving to quash the indictment was supported by the affidavit of the defendant to the effect that until the return of said indictment into court no criminal proceedings of any kind or character were pending or had been instituted in any court in the state of North Dakota against affiant; that he was not in custody nor under recognizance when the grand jury was impaneled, and that he had had no opportunity to submit any challenge to the grand jury or any member thereof; that one John McIlrath was a member of the grand jury which returned the indictment; that he was not a disinterested and impartial member of said grand jury; that said McIlrath was instrumental in having the grand jury called and personally circulated a petition for the calling thereof; that no grand jury would have been called but for the interest and activity of said McIlrath; that said McIlrath was and is an enemy of the defendant and was interested in the procuring of the indictment against the defendant; that the position of McIlrath in the grand jury room was that of a private prosecutor, and that if he had not been a member of the grand jury no indictment would have been found or returned against the defendant; that the deliberations of the grand jury were dominated by the said McIlrath to the end that an indictment might be returned against the defendant.

The trial court entered an order in writing granting defendant's motion for leave to withdraw the plea of not guilty for the purpose of making a motion to set aside the indictment. Thereafter, defendant filed a motion in writing that the indictment be set aside for the following reasons:

“1. That one John McIlrath was a member of the grand jury that returned the indictment against defendant in this case; that the said John McIlrath was one of the grand jurors that voted to indict defendant; that the said John McIlrath was then and there of such a frame of mind that he could not and did not act impartially and without prejudice to the substantial rights of the defendant in said matter; that he, the said John McIlrath, was the person who first moved to have a grand jury called at the last term of district court in Towner county; that he, the said John McIlrath, personally circulated the petitions for the calling of said grand jury, and that his object at all times in securing the presence of a grand jury at said term of court was to have defendant indicted, regardless of the evidence; that he, the said John McIlrath, was then and there violently and without cause prejudiced against the defendant; that he dominated said grand jury and forced an indictment against defendant, voting in favor thereof.

2. That prior to the return of said indictments against defendant (five in number) no criminal proceedings of any kind or character were pending or had been instituted in any court in the state of North Dakota against this defendant; that he was not in custody or under recognizance when the grand jury was impaneled, and defendant had no opportunity to challenge said Grand Juror John McIlrath, or any of the grand jurors, before the swearing in of the said grand jury and before the finding of the bill [indictment] against him by said grand jury; that if he had had opportunity to challenge the said John McIlrath he could then and there have shown to the satisfaction of the presiding judge of said court said John McIlrath was not a fair and impartial grand juror, and that he, the said John McIlrath, could not without prejudice to the substantial rights of the defendant be present at or take part in the consideration of charges against this defendant by said grand jury and act as a member of said grand jury.

3. That the said John McIlrath was incompetent in law to act as a grand juror in the consideration of charges then and there before said grand jury against this defendant and incompetent to participate in and vote for a bill [indictment] against this defendant.

4. That the presence in the grand jury room of the said John McIlrath and as a member of said grand jury, he being then and there disqualified to act as a member of said grand jury considering charges against this defendant, vitiated the findings of said grand jury in considering charges against this defendant and vitiated the indictment returned against defendant in this case by said grand jury; the presence in the grand jury room of the said John McIlrath and his participation in the deliberations of said grand jury and his voting as a member thereof in connection with the return of indictments against defendant worked a manifest and substantial injury to defendant.

5. That the position of the said John McIlrath in said grand jury room was then and there in fact the position of a private prosecutor actuated by private enmity against this defendant, and then and there seeking the gratification of his own personal malice against this defendant, to the manifest and substantial injury of defendant.”

The trial court entered a written order reciting that said motion to quash came duly on for hearing, and that the attorneys for the defendant offered to prove:

“That at the regular March, A. D. 1926, term of the district court of Towner county, N. D., a grand jury was called and impaneled by order of the presiding judge of such ...