State v. Stevens

• Decision Date: 07 December 1909
• Citation: 123 N.W. 888,19 N.D. 249
• Court: North Dakota Supreme Court

123 N.W. 888

19 N.D. 249

THE STATE OF NORTH DAKOTA v. C. H. STEVENS

Supreme Court of North Dakota

December 7, 1909

Appeal from District Court, Nelson county; Templeton, J.

C. H Stevens was convicted of maintaining a liquor nuisance, and he appeals.

Modified and affirmed.

Affirmed.

Frich & Kelly, for appellant.

Failure to preserve and file testimony as the foundation for an information under the prohibition law is fatal to jurisdiction. Ex parte Doherty, 32 N. Brunsw. 479; State v. Braithwaite, 27 P. 731; People v. Chapman, 62 Mich. 280, 28 N.W. 896; People v. Brock, 31 N.W 585; People v. Restell, 3 Hill, 289; 12 Cyc 310-11 and cases cited.

Setting the time of an offense "between the 1st day of October, 1908, and 22nd day of April, 1909," is insufficient. State v. Brown, 14 N.D. 529, 104 N.W. 1112; Storey v. Chandler, 15 A. 223; State v. O'Donnell, 17 A. 66; State v. Beaton, 9 A. 728; State v. Small, 14 A. 942; Wells v. Commowealth, 12 Gray. 326; 22 Cyc. 319, and cases cited; 23 Cyc. 227, and cases cited.

Incompetent and insufficient testimony taken as preliminary to a charge of offense, will not sustain an information. Royce v. Territory, 47 P. 1083; State v. Fellows, 1 N.C. 340; U. S. v. Farrington, 5 F. 343; State v. Cole, 47 S.W. 895; People v. Restenblatt, 1 Abb. Pr. 268; People v. Moore, 65 How. Pr. 177.

It is error for prosecuting attorney to express opinion as to accused's guilt, unless stated to be on the evidence. 12 Cyc. 580; People v. Quick, 25 N.W. 302; Reed v. State, 92 N.W. 321; Hardtke v. State, 30 N.W. 723; People v. Weber, 86 P. 671; Jones v. State, 51 S.E. 312.

Andrew Miller, Attorney General, Alfred Zuger and C. L. Young, Assistant Attorneys General, and M. A. Shirley, State's Attorney, for the State.

Ex parte depositions may be in narrative form. Weeks. The Law of Deposition, section 434; Pralus v. Pacific Gold, etc., Co., 35 Cal. 30; In re Thomas, 35 F. 822; Grissen v. Southworth, 64 Hun. 488.

Acts constituting different stages of an offense, although each is a distinct crime may be joined in one count. State v. John Nolan, 15 Rhode Island, 529, 10 A. 481; State v. Burns, 44 Conn. 149, 11 Enc. Pl. & Pr. 524; State v. Lang, 63 Me. 215; State v. Kerr, 3 N.D. 523, 58 N.W. 27.

Remarks of prosecutor, called forth by challenge of defendant, are not the subject of complaint. 2 Enc. of Pl. & Pr. 731; King v. Rea, 13 Col. 69.

Such remarks are largely regulated by the discretion of the court. 2 Enc. of Pl. & Pr. page 727; State v. Kennedy, 19 Tex.App. 618; 2 Enc. of Pl. and Pr. 752.

OPINION

FISK, J.

Appellant was convicted in the district court of Nelson county of the crime of keeping and maintaining a liquor nuisance in violation of the prohibition law, and from a judgment sentencing him to imprisonment for the period of ninety days, and adjudging that he pay a fine of $ 300 and the costs taxed at $ 287.95, and in default in the payment of such fine and costs that he be imprisoned for the additional period of one day for each $ 2 of such fine and costs, he has appealed to this court.

The assignments of error are five in number and are as follows: First. The court committed manifest error in overruling the defendant's motion to quash the information filed against him in the above-named court by the state's attorney of Nelson county, N.D. Second. The court erred in overruling the defendant's demurrer to the said information. Third. The court erred in denying and overruling the said defendant's motion for a postponement and continuance of the said trial upon the said information and in thereby compelling the said defendant to go to trial upon the accusation contained in said information at the July term of said court without allowing the said defendant time in which to procure the attendance of witnesses in his behalf and of making preparation for said trial. Fourth. The court erred in overruling the said defendant's objections to the remarks of the state's attorney made in his arguments to the jury, and each of same, which remarks are made part of and included in the statement of the case. Fifth. The court erred in rendering and causing to be entered the judgment appealed from herein.

These assignments will be noticed in the order presented. For the purpose of laying a foundation for the institution of criminal proceedings against the appellant, the state's attorney, pursuant to the provisions of section 9368, Rev. Codes 1905, issued his subpoena to one Lee, commanding him to appear before him at a designated time and place then and there to testify concerning any violation of the so-called prohibition law; and such witness, after being duly sworn, testified as follows: "I am a resident of the city of Aneta in Neson county; was a resident for the last year past; I know the defendant, C. H. Stevens; I have seen him at his place of business; he conducted a hotel and has conducted a hotel in said city of Aneta for the last year past; the hotel he conducted is known as the Manhattan Hotel in said city. I have been at his place of business on several occasions between the 1st day of October, 1908, and the 22d day of April, 1909. At the time I was at his place of business I bought intoxicating liquor and drank it on said premises, and saw others drinking intoxicating liquors on said premises. The property I bought, saw sold, and drank on said premises is more fully described as follows, to wit: Beer." Such testimony was subscribed by the said witness and the usual jurat of the officer endorsed.

It is appellant's first contention that the statute aforesaid violates section 85 of the Constitution of this state because it attempts to confer upon an executive officer judicial, not administrative, duties and powers. The section under consideration in substance provides that whenever the state's attorney shall be cognizant of any violation of the prohibitory law he may issue his subpoena commanding the appearance before him of witnesses and shall take their testimony in the form of depositions, and that if such testimony shall disclose that an offense has been committed in violation of the prohibition law, he is required to file such deposition or depositions in some court of competent jurisdiction, together with his information charging the particular offense which is shown to have been committed. Thereupon a warrant shall issue for the arrest of the person accused.

We are not required to pass upon the constitutional question urged by appellant's counsel, for, conceding all that is claimed by them as to the unconstitutionality of this statute, we are agreed that appellant cannot urge such defense. The witness Lee no doubt might have done so had he desired, but, so far as the record discloses, he in no manner questions the authority of the state's attorney in the premises. He did not object to the giving of his deposition and in no manner challenges the validity of the statute. In so far as appellant is concerned, his legal rights are no different than they would have been if the witness Lee had voluntarily appeared before the state's attorney and made his affidavit embracing the facts stated in his deposition. The section aforesaid was borrowed from the state of Kansas, being section 8, chapter 149, page 241, Laws of 1885, of that state. Prior to its adoption here it had received a construction by the Kansas court. In the case of State v. Whisner, 35 Kan. 271, 10 P. 852, in speaking upon the point here under consideration, that court, through its chief justice, said: "An attempt is made to question the constitutionality of section 8 of said chapter 149, giving county attorneys power to subpoena and examine witnesses concerning violations of that act. From the record, however, this question is not before us for decision. None of the witnesses who were subpoenaed and examined before the county attorney of Linn county on July 13, 1885, concerning the violations of the provisions of the prohibitory liquor law by the defendant, are here complaining, and the defendant has no right to complain for them. He stands before the court in reference to such matter as if all the parties to the statements filed with the information had voluntarily appeared before the county attorney, and had made before him, at their own instance, the statements."

Under a familiar rule of statutory construction the adoption of the Kansas statute carried with it by implication the adoption of the construction previously given such statute by the court of last resort in that state; but aside from this, we are in full accord with the reasoning and conclusion of the Kansas court as above quoted. The case In re Sims, 54 Kan. 1, 37 P. 135, 25 L.R.A. 110, 45 Am. St. Rep. 261, cited and relied upon by appellant's counsel, is not in point. In that case the validity of the statute was questioned by the witness, not the defendant, and such statute was held unconstitutional so far as it attempts to confer on the public prosecutor the power to commit witnesses for contempt for refusal to be sworn or to testify as provided in such section. As before stated the facts here presented do not call for a consideration of this question.

It is next contended that the provisions of said statute were not complied with by the state's attorney in that the testimony of the witness Lee was not taken in the form of a deposition but merely in narrative form and hence amounts to nothing more than an affidavit, and they argue that the committing magistrate therefore acquired no jurisdiction, and consequently that all subsequent proceedings are a nullity. Such contention is highly technical and wholly without merit. It is well settled that the testimony contained in depositions taken ex parte may be in narrative form. Weeks on Depositions, section 434...