State v. Timm

• Citation: 146 N.W.2d 552
• Decision Date: 21 November 1966
• Docket Number: Cr. 332
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Art TIMM, Defendant and Appellant. No
• Court: United States State Supreme Court of North Dakota

Page 552

146 N.W.2d 552

STATE of North Dakota, Plaintiff and Respondent, v. Art TIMM, Defendant and Appellant.

No Cr. 332.

Supreme Court of North Dakota.

Nov. 21, 1966.

Rehearing Denied Dec. 1, 1966.

Syllabus by the Court

1. The right to appeal is not conferred by the Constitution. An appeal may be had only under such regulations as may be prescribed by law. Section 109, North Dakota Constitution.

2. There is no statutory provision for a trial de novo on appeal to the Supreme Court from the judgment in a criminal action.

3. Sufficiency of the evidence to sustain a finding upon facts by a judge in a criminal action where a jury is waived, not challenged either by motion for new trial or otherwise, cannot be considered on an appeal from the judgment alone.

4. An appeal from a judgment only brings to the Supreme Court for review errors of law committed by the trial court, appearing in the record of the action, which have been preserved and presented in the manner provided by statute.

Helgi Johanneson, Atty. Gen., Bismarck; Richard B. Thomas, State's Atty., Minot, for plaintiff and respondent.

Waldron & Kenner, Minot; for defendant and appellant.

TEIGEN, Chief Justice.

The defendant appeals from a judgment and sentence of the county court with increased jurisdiction entered upon his conviction by the court, after waiving a jury, of violating Section 49--18--07, N.D.C.C., which provides that it shall be unlawful for any common motor carrier, contract motor carrier, or agricultural carrier to transport persons or property for hire unless such carrier shall first have obtained the proper certificate or permit required by statute, and shall have complied with the provisions of Chapter 49--18, N.D.C.C., and any applicable rules, regulations or restrictions adopted by the Public Service Commission. The crime charged is a petit misdemeanor.

The scope of our review is limited by the inadequacy of the record presented. The defendant in his notice of appeal states that the appeal is taken on the ground that the evidence is wholly insufficient to support the findings, that errors of law were committed, and demands a trial de novo in this Supreme Court. The sufficiency of the evidence to sustain the conviction was not challenged either by motion before submission of the case to the court, or after the court's finding the defendant guilty as charged. There was no motion for a new trial, nor any other motion made to the trial court, nor were any objections made during trial.

There is no provision in our statutes on Judicial Procedure, Criminal Appeals, for trial de novo such as is contained in appeals from a civil action tried by the court without a jury.

The county court with increased jurisdiction has concurrent jurisdiction with the district courts in all criminal actions below the grade of felony. Section 111, North Dakota Constitution. The legislature has provided that the provisions of law and rules of practice and procedure applicable to the district courts in criminal actions, including appeals to the Supreme Court, are applicable and shall apply to the county courts with increased jurisdiction. Section 27--08--24, N.D.C.C.

This Court has no appellate jurisdiction other than that prescribed by statute. State v. McClelland, 72 N.D. 665, 10 N.W.2d 798. Section 109 of the North Dakota Constitution provides that:

Writs of error and appeals may be allowed from the decisions of the district courts to the supreme court under such regulations as may be prescribed by law.

No right of appeal from the county court with increased jurisdiction is specially conferred by the Constitution. It is provided by statute under the same laws as govern appeals in criminal actions from the district courts. That right was left to statutory provisions and must be exercised in accordance therewith. An appeal, therefore, from a county court with increased jurisdiction embraces only that which is contemplated by the law enacted by the legislature, and the legislature has adopted no law providing for a trial de novo in the Supreme Court on a criminal appeal.

We cannot review the sufficiency of the evidence in this case for still another reason. It is not before us. We have often held in a criminal action that the sufficiency of the evidence to sustain a verdict, if not challenged either by a motion for an advised verdict or after verdict by motion for a new trial, cannot be considered on appeal. State v. Eli, N.D., 62 N.W.2d 469; State v. McClelland, supra; State v. Mostad, 70 N.D. 73, 291 N.W. 910; State v. Johnson, 68 N.D. 236, 278 N.W. 241; State v. Fahn, 53 N.D. 203, 205 N.W. 67; State v. Glass, 29 N.D. 620, 151 N.W. 229. This rule is equally applicable when a jury is waived. The word 'verdict' is defined to include not only the verdict of a jury, but also the finding upon facts of a judge. Section 1--01--41, N.D.C.C.

The defendant, also for the first time in this Court, alleges that it was error for a trial court to amend the process to, in effect, substitute a new defendant for the original defendant after trial of the case when such new defendant was...