State v. Wicks

Decision Date28 September 1937
Docket NumberCr. 137
Citation276 N.W. 690,68 N.D. 1
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. An oral statement by the court that he sustains a demurrer, and a notation to that effect made by the clerk of the court in the minutes, does not constitute an order sustaining the demurrer. Such an order must be in writing and signed by the judge.

2. A demurrer to a criminal information upon the ground " that said information does not state facts sufficient to constitute a public offense" is in the language of subdivision 4 of section 10737, Compiled Laws, and is sufficient.

3. The information in this case is examined and is held to state facts sufficient to constitute a public offense under section 9283, Compiled Laws.

Appeal from District Court, Sioux County; H. L. Berry, Judge.

Joe Wicks was charged with falsely canvassing votes while judge of election. From an order sustaining a demurrer to the information, the State appeals.


P O. Sathre, Attorney General, and Irving Koths State's Attorney, for appellant.

Jacobsen & Murray and R. F. Gallagher, for respondent.

Morris, J. Christianson, Ch. J., and Nuessle, J., concur. Burr, J. (dissenting).


This is an appeal by the State of North Dakota from an order of the district court sustaining a demurrer to an information. The first matter to be considered is a motion by the defendant to dismiss the appeal upon the ground "that the appeal has not been taken and perfected within the time fixed and prescribed by statute." The minutes of the court disclose that on June 11, 1936, this case was called for trial, that the defendant demurred to the information on the ground that it does not state facts sufficient to constitute a public offense, which demurrer was sustained by the court. A written order sustaining the demurrer was signed by the court on September 16, 1936. The notice of appeal to the Supreme Court was served on October 6 and filed on October 8. Chapter 217, Session Laws of North Dakota for 1927, specifies the time for appeal in criminal cases and provides that "an appeal from a judgment may be taken within three months after its rendition and from an order within sixty days after it is made."

The defendant contends that the order was, in fact, made on the 11th day of June when the court orally sustained the demurrer and the clerk made a written notation thereof in the minutes, and that consequently the time for appeal had expired when the notice was served. We cannot agree with this contention. Section 10740, Compiled Laws, provides: "Upon considering the demurrer, the court must give judgment either sustaining or overruling it, and an order to that effect must be entered upon the minutes." Section 7939, Compiled Laws (Code Civ. Proc.) provides that every direction of a court or judge made or entered in writing and not included in a judgment is denominated an order. The Code of Criminal Procedure does not define an order. Under the criminal procedure it cannot be contended that a notation made by the clerk upon his minutes which is not signed by the court is an order of the court; neither can an oral statement of the court that he is sustaining the demurrer constitute such an order. It must be in writing and signed by the judge. No such order was made until September 16 and the notice of appeal having been served and filed within sixty days after that date, the appeal was taken in time.

The defendant was charged in the information with committing the crime of falsely canvassing votes while judge of election, committed as follows: "the said Joe Wicks being one of the Judges of election of Cannon Ball Precinct, Sioux County, North Dakota, did wilfully and unlawfully make a false canvass of the votes cast at the General Election held on November 8th, 1932 by then and there misreading and falsely reading to the clerks of election, who were then and there duly recording the votes, certain ballots cast at said election and the names of candidates thereon; thus wilfully and unlawfully falsifying the returns that were made of the canvass at said election, knowing the same to be false." The statute under which the prosecution is brought, § 9283, Compiled Laws of North Dakota for 1913, reads as follows: "Every inspector or judge of election, member of any board of election or of canvassers, poll clerk, messenger or other officer authorized to take part in or perform any duty in relation to any canvass or official statement of votes cast at any election, who wilfully makes any false canvass of such votes, or makes, signs, publishes or delivers any false returns of such election, knowing the same to be false, or wilfully defaces, destroys or conceals any statement or certificate intrusted to his care, is guilty of a misdemeanor."

The defendant demurred upon the ground "that said information does not state facts sufficient to constitute a public offense," thus challenging the sufficiency of the information. The state asserts that the demurrer is too indefinite in that it does not distinctly specify wherein the information fails to set forth facts which constitute a public offense. The position of the state on this point cannot be sustained. The demurrer is in the language or para. 4 of § 10,737, Compiled Laws of North Dakota for 1913, and is sufficient.

We now pass to the consideration of the information. Section 10,685 requires that it must contain "A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended." Section 10,686 requires that the allegations of the information must be direct and certain as regards:

"1. The party charged.

"2. The offense charged.

"3. The particular circumstances of the offense charged when they are necessary to constitute a complete offense."

Section 10,691 provides that: "The words used in an information or in an indictment must be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning."

Section 10,692 provides that: "Words used in a statute to define a public offense need not be strictly pursued in the information or indictment; but other words conveying the same meaning may be used."

Section 10,693, in so far as it applies to the pleading of facts in an information, provides that it is sufficient if it can be understood therefrom:

"6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

"7. That the act or omission charged as the offense, is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case." Whether the information states facts sufficient to constitute a...

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