State v. Thomas

• Decision Date: 06 May 1943
• Docket Number: Cr. No. 188.
• Citation: 9 N.W.2d 442,72 N.D. 537
• Parties: STATE v. THOMAS.
• Court: North Dakota Supreme Court

9 N.W.2d 442

72 N.D. 537

STATE v. THOMAS.

Cr. No. 188.

Supreme Court of North Dakota

May 6, 1943

Syllabus by the Court.

1. By the law of this State, an information which does not allege the date of the commission of the offense charged, is made sufficient by virtue of a statutory presumption that the offense was committed within the period limited by statute for the prosecution for such offense. (Section 11, Chapter 132, Laws of North Dakota 1939.)

2. Information may be supplemented by bills of particulars to be furnished at the instance of the court or of the defendant or by the prosecuting attorney of his own motion. (Section 8 Chapter 132, Laws of North Dakota 1939.)

3. If it appears from the allegations of an information or from the allegations of the bill of particulars and the information taken together, that the offense charged is barred by the statute of limitations, the information is insufficient and must be quashed upon motion of the defendant subject, however, to the right of the prosecuting attorney to file a supplemental bill of particulars setting forth exceptions or other matters from which it would appear that the prosecution is not so barred. (Section 9, Chapter 132, Laws of North Dakota 1939.)

4. The grounds for demurrer specified by Section 10737, Compiled Laws of North Dakota 1913, are exclusive of all other grounds.

5. The expiration of the period of limitation fixed by statute for the prosecution for an offense is a legal bar to the prosecution and, where it appears from the information that the bar exists, that fact is a ground for demurrer. (Section 10737, Compiled Laws of North Dakota 1913.)

6. A demurrer which specifically sets forth a ground for demurrer which is included within the general grounds set forth in the statute is sufficient as to form.

CHRISTIANSON J., dissenting.

Alvin C. Strutz, Atty. Gen., and Milton Moskau, State's Atty., and Philip R. Bangs, Asst. St's. Atty., both of Grand Forks, for plaintiff and appellant.

Norman G Tenneson, of Fargo (Garfield H. Rustad, of Moorhead, Minn., of counsel), for defendant and respondent.

BURKE, Judge.

An information, charging the defendant with the crime of robbery, was filed in the District Court of Grand Forks County on January 18, 1943. It was alleged in the information that the crime had been committed on December 20, 1937. Defendant demurred to the information upon the grounds, (1) that the court had no jurisdiction of the offense charged therein; and (2) that upon the face of the information it conclusively appeared "that the crime alleged in said information has been barred by the statute of limitation as provided in the statutes of the State of North Dakota." The trial court made its order sustaining the demurrer upon the latter ground and directing the state's attorney to file an amended information setting forth facts which would avoid the bar of the statute of limitations. The State has appealed from this order.

There are five specifications of error which may be summed up under two general headings. 1. That a defendant in a criminal action may urge the defense of a statute of limitations by evidence under the general issue only and not by challenging the sufficiency of the information. 2. That the demurrer does not specify which statutory ground for demurrer is relied on. The statutory provisions which we must consider are as follows:

"An information for any other felony than murder must be filed, or an indictment found, within three years after its commission; provided, that nothing in this section contained shall be construed to bar or prevent a person prosecuted for murder from being found guilty of manslaughter and punished accordingly." Sec. 10521, Compiled Laws of North Dakota 1913.

"If when the crime or public offense is committed, the defendant is out of the state, or if the defendant is in the state when the crime is committed and subsequently leaves the state, the information may be filed, or the indictment found, within the time herein limited, after his coming within the state, and no time during which the defendant is not an inhabitant of, or usually resident within this state, is part of the limitation." Sec. 10523, Supplement to Compiled Laws of North Dakota 1913.

"The defendant may demur to the information or indictment when it appears upon the face thereof, either:

"1. That the court has no jurisdiction of the offense charged therein; or, if an indictment, that the grand jury by which it was found had no authority to inquire into the offense charged, by reason of its not being within the jurisdiction of the county or judicial subdivision.

"2. ***

"3. ***

"4. ***

"5. That it contains any matter, which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution." Sec. 10737, Compiled Laws of North Dakota 1913.

"An indictment or information need contain no allegation of the time of the commission of the offense unless such allegation is necessary to charge the offense under Section 7.

"(2) The allegation is (of) an indictment or information that the defendant committed the offense shall in all cases be considered an allegation that the offense was committed after it became an offense and before the finding of the indictment or information, and within the period of limitations prescribed by law for the prosecution of the offense.

"(3) All allegations of the indictment, information and bill of particulars shall, unless stated otherwise, be deemed to refer to the same time." Sec. 11 of Chapter 132, Laws of North Dakota 1939.

"When an indictment or information charges an offense in accordance with the provisions of Section 7, but fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the Constitution of this State, the court may, of its own motion, and shall, at the request of the defendant, order the prosecuting attorney to furnish a bill of particulars containing such information as may be necessary for these purposes; or the prosecuting attorney may of his own motion furnish such bill of particulars.

"(2) When the court deems it to be in the interest of justice that facts not set out in the indictment or information or in any previous bill of particulars should be furnished to the defendant, it may order the prosecuting attorney to furnish a bill of particulars containing such facts. In determining whether such facts and, if so, what facts should be so furnished, the court shall consider the whole record and the entire course of the proceedings against the defendant.

"(3) Supplemental bills of particulars or a new bill may be ordered by the court or furnished voluntarily under the conditions above stated.

"(4) Each supplemental bill shall operate to amend any and all previous bills and a new bill shall supersede any previous bill.

"(5) When any bill of particulars is furnished it shall be filed of record and a copy of such bill given to the defendant upon his request." Sec. 8 of Chapter 132, Laws of North Dakota 1939.

"If it appears from the bill of particulars furnished under Section 8 that the particulars therein stated together with any particulars appearing in the indictment or information do not constitute the offense charged in the indictment or information or that the defendant did not commit that offense, or that a prosecution for that offense is barred by the statute of limitations, the court may, and on motion of the defendant or of the prosecuting attorney shall, quash the indictment or information unless the prosecuting attorney shall furnish another bill of particulars which either by itself or together with any particulars appearing in the indictment or information so states the particulars as to make it appear that they constitute the offense charged in the indictment or information and that the offense was committed by the defendant and that it is not barred by the statute of limitations." Sec. 9 of Chapter 132, Laws of North Dakota 1939.

"The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of the objection to the information or indictment, or it must be disregarded." Sec. 10738, Compiled Laws of North Dakota 1913.

It will be noted that Section 10521, supra, requires that prosecutions for felonies other than murder be commenced within three years but that section 10523 provides the time when the defendant was not regularly a resident in the state shall not be included in the computation of time. Here it is alleged in the information that the crime was committed more than five years before the prosecution was commenced, and no mention is made therein of the place of the defendant's residence during that time. Upon its face the information shows that the prosecution was commenced after the period of limitation had run unless there exist facts which would bring the case within the statutory exception. The first question is whether an information is sufficient which fails to allege facts which would give rise to the exception when it otherwise shows that the crime was committed without the limited period of time. There is much diversity of opinion in the decisions upon this question. 27 Am.Jur. 637; 31 C.J. 673. We do not consider it necessary to review these decisions because as we view it the statutes of the state clearly point the way to a correct decision.

By the provisions of section 11 of Chapter 132, supra, it is not necessary to allege the time of the commission of an offense in an information or indictment. But an information or indictment which does not allege the time of the offense is...