State v. Rozum

• Decision Date: 21 October 1899
• Court: North Dakota Supreme Court

80 N.W. 477

8 N.D. 548

STATE OF NORTH DAKOTA v. JOSEPH ROZUM

Supreme Court of North Dakota

October 21, 1899

Appeal from District Court, Walsh County; Sauter, J.

Joseph Rozum was convicted of keeping and maintaining a common nuisance, and appeals.

Affirmed.

Spencer & Sinkler, for appellant.

The information laid before the committing magistrate was insufficient because it did not particularly describe the place where the liquor was kept. § § 7601, 7602 and 7614, Rev. Codes. The information before the committing magistrate not stating a public offense there is no base upon which to rest the information upon which defendant was convicted. Every element of the offense defined by the statute must be covered in the information by positive averment. State v. Burchard, 4 S.D. 548, 57 N.W 491; State v. Butcher, 1 S.D. 401, 47 N.W. 406; State v. Markuson, 7 N.D. 155, 73 N.W. 82; Rogers v. State, 33 A. 283. Section 7614, Rev Codes, is identical with the Kansas statute on the same subject and in that state a particular description of the place is required. City v. Smith, 46 P. 710; State v. Nickerson, 2 P. 654; State v Walters, 47 P. 839. If from the preliminary proceedings no crime can be culled the state's attorney cannot file an information for any crime. § 7982, Rev. Codes; State v. Jarrett, 27 P. 146; Peo. v Parker, 27 P. 537; Peo. v. Wallace, 29 P. 950; Orr v. State, 8 S.W. 644; Smith v. State, 8 S.W. 645; Wood v. State, 11 S.W. 525; Peo. v. Kilvington, 36 P. 13; Peo. v. Lane, 36 P. 16; State v. Ivey, 5 S.E. 407; Ex parte Baker, 25 P. 966; Peo. v. Christian, 35 P. 1043; Peo. v. Howland, 44 P. 342; White v. State, 35 S.W. 391; Dominguez v. State, 35 P. 973; Paschal v. State, 9 Tex.App. 205; Lackey v. State, 14 Tex.App. 167 State v. Beebee, 83 Ind. 171; Little v. State, 19 S.W. 332. The offense charged in the information before the committing magistrate if any, was a misdemeanor, while the information on which he was tried was felony. An information for felony cannot be based on a complaint for a misdemeanor. Kinley v. State, 16 S.W. 339. The fact of the former conviction should have been alleged in the complaint before the examining magistrate. § 7614, Rev. Codes; Clark's Cr. L. 35 & 36; Clark's Cr. Pro. 204; Peo. v. Buck, 67 N.W. 982; Com. v. Harrington, 130 Mass. 35; Beale's Cases on Cr. L. 31. The District Court acquired no jurisdiction to try this defendant because the information filed by the state's attorney was verified on information and belief, and the statements of the witnesses examined by him were not filed therewith. § 7601, Rev. Codes; State v. Huffman, 33 P. 377. Except as provided by statute no person should be arrested save upon a positive oath to the complaint. State v. Kirkpatrick, 34 P. 415; State v. Mosell, 30 P. 189. There is no indorsement of committment on the complaint as required. § 7966, Rev. Codes; Peo. v. Thompson, 24 P. 384. It was not competent to ask either the observation or opinion of witnesses either as to the disposition of the accused, or as to his conduct. Abbott's Cr. Brief, § 468 and cases cited. Neither was it competent to show defendant's bad character by proof of specific acts. State v. LaPage, 57 N.H. 245; Com. v. O'Brien, 119 Mass. 342; Hayward v. Peo. 96 Ill. 492. Neither can the people offer evidence tending to show defendant guilty of an independent crime. Peo. v. Greenwall, 108 N.Y. 296; Peo. v. Whiteman, 46 P. 92; Ryan v. Peo. 79 N.Y. 594; Peo. v. Brown, 79 N.Y. 571. Nor can they inquire of defendant on cross-examination. Clark v. State, 78 Ala. 474. The information accused defendant of keeping and maintaining a nuisance, the evidence disclosed that his wife was running the place. The question should have been submitted to the jury as requested by defendant as to whether defendant intentionally allowed or permitted his wife to keep the place. Peo. v. Utter, 44 Barb. 170; Com. v. Hill, 145 Mass. 305; 6 Lawson's Cl. Def. 762; Fanny v. State, 2 Blackf. 484.

Jeff M. Meyers, state's attorney, for respondent.

The information before the magistrate alleges a statutory offense in the language of the statute; this is allthat is required. 10 Enc. Pl. & Pr. 483, n. 2. In most states where a similar statutory offense exists it is not necessary in the information or indictment to particularly describe the place constituting the nuisance. Black on Intox. Liqs. § 486; Com. v. Rhodes, 19 N.E. 22; Com. v. Quinlan, 27 N.E. 8; Skinner v. State, 22 N.E. 115; State v. Hoard, 23 N.E. 972; State v. Welch, 7 A. 475; State v. Hall, 11 A. 181; State v. Walsh, 38 N.W. 494; Nicholson v. Peo. 29 Ill.App. 57. This pleading fulfills strictly all the requirements of our code as to a criminal complaint. § § 7886, 7881, Rev. Codes. It satisfies the rule with respect to such pleadings heretofore laid down by this Court. State v. Barnes, 3 N.D. 131-136, 54 N.W. 541. Sections 7601-2, Rev. Codes, do not enact any rule for pleading an offense under the statute. Section 7614, Rev. Codes, does not abridge the rule so far as it applies to pleadings otherwise than upon actual trial. The word "prosecution" in this statute is synonymous with the word "action." § 5156, Revised Codes. A proceeding before a magistrate is to determine whether the party shall be held to await future "prosecution." It is a complete independent judicial investigation similar to that made by a grand jury. State v. Hasledahl, 3 N.D. 36, 53 N.W. 430. Proceedings before a grand jury are in no proper sense a part of a "prosecution". State v. Walcott, 21 Conn. 297. For the sense in which the word "prosecution" is used in the statute, see § § 7745, 7979, Rev. Codes; Sec. 8, Const. Shulte v. Keokuk Co. 39 N.W. 376. There is ample authority in the statute for the filing of an information for a different offense than that described in the complaint before the magistrate. § 7983, Rev. Codes. A preliminary examination is not essential to "due process of law." 1 Bish. Cr. Pro. 239, a; State v. Anderson, 30 La.Ann. 557; State v. Brett, 40 P. 873; State v. McGilvery, 55 P. 115; Holt v. Peo. 45 P. 374; State v. Sureties, 34 P. 3. It is the state's attorney who is required to file the statement of witnesses with his information. § 7601, Rev. Codes. He deposited them attached together with the magistrate, this was a filing by the state's attorney and satisfies the statute. 7 Am. & Eng. Enc. L. 960; Harris v. Watkins, 5 Dak. 374, 40 N.W. 536. It is the order indorsed by the magistrate over his signature upon the complaint as provided in § 7966 and returned as provided in § 7978, Rev. Codes, that confers jurisdiction upon the District Court to entertain the prosecution. 16 Enc. Pl. & Pr. 863; Peo. v. Tarbox, 46 P. 896; Peo. v. Wallace, 29 P. 950. The indorsement was not made on the complaint in this case but the order was entered by the justice in his docket. Peo. v. Wallace, 29 P. 950; Peo. v. Clark, 35 P. 710; Peo. v. Tarbox, 46 P. 396. The evidence challenged was properly received. State v. Kent, 5 N.D. 516, 67 N.W. 1052; Snell v. Bray, 14 N.W. 14; Carpenter v. Wiley, 26 A. 488; 3 Rice, Ev. 29; Kirkaldie v. Paige, 17 Vt. 256; Rand v. State, 53 N.W. 836; State v. Howell, 23 S.W. 263; Russell v. State, 44 S.W. 159; State v. Taylor, 22 S.W. 806; Jameson v. Peo. 34 N.E. 486; Horn v. State, 15 So. 278; Anderson v. State, 46 N.E. 971. It is the keeper of the common nuisance who is punishable. § 7605, Rev. Codes. The husband is the keeper of the home. § 2764, Rev. Codes. And is guilty of the acts constituting the nuisance when done with his knowledge and consent. 1 Bish Cr. Law, 654; Com. v. Woods, 97 Mass. 224; Com. v. Carroll, 124 Mass. 30; Hunter v. State, 43 N.E. 452; 9 Am. & Eng. Enc. L. (2d Ed.) 531; Black on Intox. Liqs. § 374.

OPINION

BARTHOLOMEW, C. J.

The defendant has been convicted of the crime of keeping and maintaining a common nuisance, as a second offense, and has been sentenced to imprisonment in the penitentiary. He appeals from the judgment.

In his first assignment of error he urges that he has never had or waived a preliminary examination for the offense for which he was convicted or for any offense. The facts are that a complaint against the defendant, attempting to set out the offense of keeping and maintaining a nuisance, was filed by the proper state's attorney before a committing magistrate, and a warrant issued thereon. Defendant was arrested under the warrant, and, by proceedings in all respects regular, waived an examination, and was bound over to the District Court. It is now urged that the complaint before the magistrate did not set forth any public offense in that it did not particularly describe the place where the alleged nuisance was maintained. The language of the complaint is, "in a certain frame building situate on the townsite of Pisek," in the proper county and state. No other attack is made upon the complaint. In State v. Barnes, 3 N.D. 131, 54 N.W. 541, this Court said: "We know of no case or principle of law which requires that a complaint made as a basis for a mere preliminary examination should be drawn with the fullness and technical accuracy required in cases where the prisoner is put upon his trial in a court having authority to hear and determine the case and impose a final judgment. The system of criminal procedure which is established by the laws of this state contemplates that non-professional persons, and particularly justices of the peace, who, as a rule, are men unlearned in the abstruse rules of criminal pleading, may have frequent occasion to write out criminal complaints, to be filed as a basis for the arrest of offenders. To require of persons who are without professional training to frame criminal complaints with the same degree of technical accuracy which is required in indictments and informations would be to...