State v. Weltner

• Decision Date: 27 May 1898
• Citation: 75 N.W. 779,7 N.D. 522
• Court: North Dakota Supreme Court

75 N.W. 779

7 N.D. 522

THE STATE OF NORTH DAKOTA v. IRA WELTNER

Supreme Court of North Dakota

May 27, 1898

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

Ira Weltner was convicted of grand larceny, and appeals from the judgment of conviction.

Reversed.

Motion to affirm denied, and the judgment reversed.

John D Stack, for appellant.

The information depends for its legal existence upon a preliminary examination of the offender. Section 7982 Revised Codes; White v. State, 44 N.W. 445; State v. Sorenson, 53 N.W. 1124; State v Barnes, 3 N.D. 131, 134. Defendant moved to quash the information in proper time in the court below. Subd. 1 § 8082, Rev. Codes. Defendant was entitled to a judicial examination before an impartial magistrate. State v. Brett, 40 P. 873; Packwood v. State, 33 P. 674; State v Barnes, 3 N.D. 131; State v. Kent, 4 N.D. 577; State v. Henning, 3 S.D. 492, 54 N.W. 536; State v. Evans, 33 P. 1010. The demand for the removal of the case to another magistrate was in time before the taking of testimony had actually commenced. State v. Evans, 33 P. 1010; State v. Hazledahl, 2 N.D. 521; State v. Kent, 5 N.D. 516-531. When made the justice lost jurisdiction to proceed further. City v. Snyder, 43 P. 635; Hellriegel v. Truman, 19 N.W. 79; Jenkins v. Morning, 38 Wis. 197; State v. Sorenson, 53 N.W. 1124.

A. L. Miller, (J. H. Bosard, of counsel,) for respondent. No brief filed.

OPINION

WALLIN, J.

This record discloses that the defendant was convicted of the crime of grand larceny, and from the judgment of conviction the defendant has appealed to this court. The single point of error assigned in this court by the defendant rests upon the following facts: The defendant was arrested on a criminal warrant charging him with the commission of said offense, and was brought by the officer who made the arrest before Grant S. Hager, Esq., a justice of the peace of said county, who issued the warrant. As to what occurred in the Justice's Court, the entries in the docket of the justice will best disclose. Said entries are as follows: "On the 27th day of November, 1897, at 3 o'clock P.M. the defendant, Ira Weltner, being present in court, in custody of James A. Little, said deputy sheriff, I fully advised said defendant of the aforesaid accusation, by reading said complaint to him; and at the same time I advised the said defendant of his right to obtain counsel before entering his plea to said accusation of grand larceny. The said defendant, Ira Weltner, thereupon asked time to procure counsel, whereupon it was ordered by this court that said case be adjourned until the 30th day of November, 1897, at 10 o'clock A. M. Court opened at 11 A. M. of November 30, 1897, pursuant to adjournment. Defendant was present, in custody of deputy sheriff; John D. Stack, Esq., appearing for him. State was represented by O. M. Corwin, deputy state's attorney. Defendant's counsel John D. Stack, Esq., filed the necessary affidavit of prejudice and bias prescribed by law, and moved for a change of the place of trial to the next nearest justice of the peace. Court overruled the motion on the ground that the defendant had been informed of his rights when first brought before it, and had specifically waived at that time his right to a change of venue and to waive examination; only asking for an adjournment to procure witnesses, which adjournment was duly granted by the court. Defendant's attorney asked for a more full statement of the specific manner defendant waived his right for a change of venue. There having been no stenographer at court at the time of said act, and no request being made that the testimony in the case, or other facts of the court, be taken in writing, it becomes necessary for the court to rely on his memory entirely for the record, which is as follows: That the complaint was first read to the defendant in full, and at the same time the court informed the defendant that he had a right to waive examination and give bonds to appear at the District Court; that he had the further right to change of venue, which right was explained in language to apprise the defendant that he could have another justice hear this examination, if for any reason he believed that the court was unfair or biased. Defendant was further advised of his right to a reasonable adjournment to procure counsel. Defendant was asked if he wished to avail himself of any of said rights, and he said he only desired such adjournment as would give time for him to procure as a witness his brother, Earnest Weltner, who was at Thief River Falls, Minn., and who had, the previous evening, broken his arm by being thrown from a wagon; that he desired an adjournment until Thursday, the 2d day of December, 1897. The court made inquiries which brought out the information that the witness could reach the place of trial by train on Tuesday, November 30, 1897, by 10 A. M., to which time the trial was adjourned. The defendant gave no intimation to the court that he desired a change of venue, but, on the contrary, seemed, by all actions, willing to consent to the jurisdiction of this court. Defendant's counsel excepts to the ruling of the court, demanding a change of venue in this case." The examination proceeded before said justice of the peace, and resulted in holding the defendant to bail to answer for said offense before the District Court. No other examination was ever had of the accused, and it is not claimed that this case comes within the exceptions named in the statute in which an examination is unnecessary. The state's attorney of Pembina County filed an information in the District Court, charging the defendant with said offense; and, upon being arraigned thereon, the defendant's counsel, before pleading, moved to quash said information upon the ground that the defendant had never had a preliminary examination before any magistrate authorized by law to conduct an examination. The facts were not controverted; the motion being based upon the record of said examination before said justice, which record was then on file with the Clerk of the District Court. The motion to quash was denied, and defendant excepted to the ruling. The defendant refused to plead to the information, whereupon the court directed a plea of not guilty to be entered for him. The defendant was found guilty and sentenced, as before stated.

In this court, defendant contends that the trial court erred in overruling defendant's motion to quash the information. In our judgment, this contention is valid, and must be sustained. The statute expressly authorizes a defendant, upon being arraigned upon an information, to raise the point made here by a motion to quash or set aside the information. Revised Codes, section 8082. The sufficiency of the affidavit filed by the defendant in the Justice's Court, upon which his motion...