State v. Simpson, Cr. 241

• Decision Date: 13 December 1951
• Docket Number: Cr. 241
• Citation: 50 N.W.2d 661,78 N.D. 571
• Parties: STATE v. SIMPSON.
• Court: North Dakota Supreme Court

Page 661

50 N.W.2d 661

78 N.D. 571

STATE v. SIMPSON.

Cr. 241.

Supreme Court of North Dakota.

Dec. 13, 1951.

Rehearing Denied Jan. 11, 1952.

Syllabus by the Court.

1. Where upon arraignment of a defendant the information is challenged by a motion to quash upon the ground that it charged more than one offense and the defendant also demands a bill of particulars, and the court upon motion of the defendant requires the state to elect the offense upon which it will proceed, after which the state's attorney is permitted to strike out portions of the information upon which the contention of duplicity is based, and counsel for the defendant then states that such amendment of the information is satisfactory and withdraws his application for a bill of particulars and proceeds with the trial without further objection being made to the information, either during or at the close of the trial by motion in arrest of judgment or otherwise; such errors of procedure as may have occurred with regard to the amendment of the information or the arraignment of the defendant are waived and cannot be urged on appeal.

2. By failure to move to quash an information before he pleads thereto, a defendant waives all objections to the information which are grounds for a motion to quash, except those which are also grounds for a motion in arrest of judgment. (Section 29-1412 RCND 1943.)

3. The terms 'prostitution,' 'lewdness,' and 'assignation' are not defined as crimes in our statutes. These terms denote acts concerning which various related courses of conduct are made unlawful by Section 12-2214 RCND 1943. Punishment for these courses of conduct is provided by Sections 12-2216 and 12-2217 RCND 1943.

4. The name given or attempted to be given in an information is not controlling as a statement of the crime charged. When the facts, acts, and circumstances are set forth with sufficient certainty, the failure to properly name the offense is not fatal.

5. Where the court read to the jury as a part of his instructions an original information charging that the defendant did unlawfully receive persons into a certain place for the purpose of prostitution, lewdness, and assignation in violation of Sections 12-2214 and 12-2215 RCND 1943, and the court had previously upon motion of the state's attorney stricken from the information the words 'prostitution and lewdness' and the court having further instructed the jury that 'all the material allegations of this information that I have read to you and of which I have spoken, must be proved to your satisfaction beyond a reasonable doubt' the error in reading to the jury the unexpurgated information tended to increase the burden of proof of the state and was not prejudicial to the defendant.

6. It is not error to instruct the jury, in the absence of a request, that a failure of a defendant to testify does not create or raise a presumption of guilt against him.

7. In a prosecution for unlawfully receiving persons into a place for the purpose of assignation, in violation of Section 12-2214 RCND 1943, the actual indulgence of the person so received in the proscribed act is not an essential element of the crime charged.

8. Testimony concerning the reputation of any place, structure, or building and of the person or persons who reside in or frequent the same and testimony concerning the reputation of the defendant is admissible in a prosecution for violation of any of the provisions of Section 12-2214 RCND 1943.

9. In order to avail himself upon appeal of error alleged to result from improper argument of counsel, the appellant must take such steps as are necessary to provide a record upon which the appellate court can determine the merits of the controversy.

10. Where oral instructions are read to the jury, it is not error for the trial court to submit to the jury the identical instructions in writing.

11. Where the information is sufficient and the jury renders a verdict finding the defendant guilty as charged in the information, an error in naming the crime in the verdict does not invalidate the action of the jury.

12. The sustain a plea of once in jeopardy it must appear that the offense for which the defendant claims he was once placed in jeopardy is the same offense as that for which he is being tried. The acts charged and the legal character of the crimes charged must be the same in both instances.

13. Section 29-2622 RCND 1943 requires the trial court, in all cases of conviction, to tax the costs of prosecution against the defendant and the amount of costs so taxed will not be disturbed on appeal unless it affirmatively appears that the amount fixed by the trial court exceeds the costs of prosecution.

Paul Campbell, Minot, for defendant and appellant.

Elmo T. Christianson, Atty. Gen., Harold Halstead, Asst. Atty. Gen., and Halvor L. Halvorson, Jr., State's Atty., of Ward County, Minot, for plaintiff.

MORRIS, Chief Justice.

The defendant appeals from a judgment of the district court convicting her of 'the crime of Assignation in the Second Degree.' She was sentenced to be confined in the County Jail of Ward County for a period of one year and to pay costs of the action in the sum of $728, and in event of her failure to pay the costs, she was required to serve an additional 300 days in the Ward County Jail. The defendant was arrested upon the criminal complaint of a member of the police force of the City of Minot. The complaint charged the defendant with 'Prostitution, Lewdness, & Assignation.' She was bound over to the District Court of Ward County for trial at the September Term of that court. She filed an affidavit of prejudice against the presiding judge, whereupon the supreme court designated Honorable J. J. Kehoe, one of the judges of the Second Judicial District, to preside. He presided throughout all subsequent proceedings that terminated in the defendant's conviction.

On October 18, 1950, the defendant was arraigned and pleaded 'not guilty' and 'once in jeopardy' after moving to quash the information upon the ground that it is duplicitous and that it does not state facts sufficient to constitute a cause of action. The next step was an application on the part of the defendant for a change of place of trial from the District Court of Ward County upon the ground that it was impossible to obtain a jury in Ward County that had not formed an opinion as to the guilt or innocence of the defendant. The defendant's application was granted by order of the court of October 20, 1950, and the place of trial was changed to the District Court of McHenry County where the case was later tried to a jury that found the defendant 'guilty as charged in the information of the crime of Assignation in the Second Degree.'

The defendant made no motion for a new trial but appealed from the judgment, and in support of her appeal presents eleven assignments of error. The first and tenth assignments will be considered together. One charges error on the part of the trial court in overruling the defendant's motion to quash the information and the other challenges certain instructions of the court based upon the information. The information upon which the defendant was arraigned charges that she 'did commit the crime of Prostitution, Lewdness & assignation committed as follows to-wit: That at the said time and place the said Margaret Simpson did wilfully and unlawfully receive persons into her place at 228 3rd St. S.W. in the city of Minot in said County for the purpose of prostitution, Lewdness, and assignation, in violation of Section 12-2214 and 12-2215 of the North Dakota Revised Codes for 1943.' The motion to quash, made at the time of the arraignment, was later denied. The defendant also moved that the state be required to elect as to which offense it would proceed upon. The court appears to have directed an election pursuant to which, on the following day, the state moved 'that the terms 'prostitution and lewdness' be stricken out of the information as filed, wherever they appear in the same.' This motion was granted by the trial court. No amended information leaving out the words that the court had ordered stricken was served or filed and the defendant was not again arraigned and no new plea was entered. However, the defendant appears to have been satisfied with the proceedings thus far. Before granting the state's motion, the court asked defendant's counsel: 'It that satisfactory, Mr. Campbell?' to which defendant's counsel replied: 'Yes.' After the motion was granted, defendant's counsel stated: 'I withdraw application for Bill of Particulars.' The motion to quash was not renewed, nor was the information again attacked, either during or at the close of the trial, by a motion in arrest of judgment or otherwise. Such errors of procedure as may have occurred regarding the amendment of the information and the arraignment of the defendant were clearly waived and cannot be taken advantage of on this appeal. Hack v. State, 141 Wis. 346, 124 N.W. 492, 45 L.R.A.,N.S., 664; Huffman v. State, 46 Okl.Cr. 377, 287 P. 1090. By failure to move to quash an information before he pleads thereto, a defendant waives all objections to the information which are grounds for a motion to quash except those which are also grounds for a motion in arrest of judgment. Section 29-1412 RCND 1943. Grounds for a motion in arrest of judgment are set forth in Section 29-2502 RCND 1943.

Before discussing the assignment of error pertaining to the instructions of the court, we deem it advisable to consider the information as filed and the effect thereon of the state's motion deleting certain words, as well as the statutory definitions pertinent to the terms used.

Section 12-2214, paragraph 3, RCND 1943 makes it unlawful 'To receive or to offer or agree to receive any person into any place, structure, building, or conveyance for the purpose of prostitution, lewdness, or assignation, or to permit any person to remain there...