State v. Willms

• Decision Date: 17 September 1962
• Docket Number: Cr. 302
• Citation: 117 N.W.2d 84
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Warren Allen WILLMS, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 84

117 N.W.2d 84

STATE of North Dakota, Plaintiff and Respondent, v. Warren Allen WILLMS, Defendant and Appellant.

Cr. 302.

Supreme Court of North Dakota.

Sept. 17, 1962.

Syllabus by the Court.

1. A formal finding of guilt is unnecessary where a plea of guilty is entered, the sole duty of the court thereafter being to fix the amount of punishment and to render judgment or sentence accordingly.

2. A 'charge,' within the terms of a statute authorizing arrest without warrant on a charge, made on reasonable cause, of the commission of a felony, does not mean 'a formal written charge, presented to proper authority,' but includes an oral charge or accusation made to a peace officer.

3. The criminal record of one accused of a crime, furnished by the Federal Bureau of Investigation, the State Superintendent of Criminal Identification, or a State parole officer, may be received by the court, after conviction, without verification or other foundation, as evidence in considering circumstances in aggravation or mitigation of punishment. Sec. 29-26-18, N.D.C.C.

4. After conviction by verdict or plea of guilty, the court may consider circumstances in aggravation or mitigation of punishment. Evidence of such circumstances must be presented by testimony of witnesses examined in open court, except as provided by Section 29-26-18 of the North Dakota Century Code.

5. Where, after conviction, the State's Attorney, at time of sentence, begins to give the court information of other and similar offenses committed by the defendant at about the time of the offense charged, to which the defendant objects, and where, after such objection, further information submitted for consideration in aggravation or mitigation of punishment is presented by testimony of witnesses examined in open court, no prejudicial error has been committed.

Glenn R. Moody, Jr., Jamestown, for defendant and appellant.

Leslie R. Burgum, Atty. Gen., Bismarck and James R. Jungroth, State's Attorney, Jamestown, for plaintiff and respondent.

STRUTZ, Judge.

The defendant was charged with the offense of obtaining property under false pretenses. The information charges that the defendant obtained certain property, a watch and some cash, by aid of a token in writing, such token being a check dated April 3, 1962, drawn on the American National Bank of Valley City. At the time of giving such check and obtaining such property, the defendant had no account in the bank on which the check was drawn.

The defendant was arrested the same day on which he issued this check. The record discloses that, on the day following his arrest, the defendant waived preliminary hearing before the county court and was bound over to the district court on $5,000 bail. In default of bail, he was committed to the county jail to await trial.

On April 9, the defendant appeared in open court with his attorney and was arraigned. On being asked to plead to the information, defendant stood mute and the court ordered a plea of not guilty to be entered.

On April 23, the defendant again appeared in open court with his attorney, at which time the defendant moved for a hearing out of the presence of the jury. Such motion having been granted, the defendant then moved that he be permitted to withdraw his plea of not guilty and enter, in lieu thereof, a plea of guilty. This motion also was granted and, upon return into open court, the defendant then entered his plea of guilty. On motion by the defendant, sentencing was deferred.

On April 25, the date to which the matter had been deferred, the defendant, with his attorney, appeared for sentencing. The court requested the State's Attorney to give a brief statement of the facts and to make any recommendation which he desired to make in the case. In giving such resume of the facts, the State's Attorney informed the court that the defendant, on the day on which he had committed the offense with which he was charged, had also passed two other checks at two other business establishments in the city of Jamestown. The defendant objected to any unsworn statements of other offenses, of which he had not been convicted, as being highly prejudicial; and, further, objected to the introduction of the Federal Bureau of Investigation records on the ground that they were hearsay and could not properly be considered by the court for any purpose. The defendant also objected to questioning of the defendant prior to sentence.

This appeal is from the judgment and sentence of the court, and from the whole thereof.

The first ground urged as error by the defendant is that the trial court did not have jurisdiction to impose sentence in this case without a formal finding of guilty. We believe this argument is wholly without merit. Here, the defendant, appearing with counsel, moved the court for permission to withdraw his plea of not guilty and to enter, in lieu thereof, a plea of guilty. Where the defendant was thus sentenced upon his plea of guilty, the trial court is not required to enter a formal finding of guilty since such finding is inferred from the defendant's plea. After the entry of such plea of guilty, the sole duty of the court is to fix punishment and render judgment or sentence accordingly. People v. Bute, 396 Ill. 588, 72 N.E.2d 813, affirmed in 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Witte v. Dowd, 230 Ind. 485, 102 N.E.2d 630, cert. denied 344 U.S. 841, 73 S.Ct. 54, 97 L.Ed. 654.

Thus the defendant is sentenced upon his plea of guilty and the trial court is not required to enter a finding of guilty since such finding is inferred from the defendant's plea. People v. Dodge, 411 Ill. 549, 104 N.E.2d 633.

The next error urged is that the trial court erred in overruling the defendant's plea in abatement, defendant's motion to quash, and defendant's motion in arrest of judgment. The defendant contends that the trial court was without jurisdiction since the warrant for his arrest was issued on an 'unsworn and perjured statement.' The record discloses that, after accepting defendant's check and delivering to him the watch and cash in exchange for it, the clerk who had accepted the check became suspicious and talked to his employer. The bank on which the check was drawn was called, and it was discovered that the defendant had no account with such bank. Thereupon the police were notified and the defendant was located and taken into custody, after which the State's Attorney signed a criminal complaint upon which a criminal warrant was issued.

Defendant's arrest without a warrant was proper and legal, under the circumstances. Our law provides that there are various situations under which an officer may arrest a person without a warrant. Included in such situations are instances when the person arrested has committed a felony, although not in the presence of the officer, and on a charge, made upon reasonable cause, of the commission of a felony by the party arrested. Sec. 29-06-15, Subsecs. 2 and 4, N.D.C.C.

This court has held that the term 'c...