State v. Winbauer

• Decision Date: 21 December 1910
• Citation: 129 N.W. 97,21 N.D. 161
• Parties: STATE v. WINBAUER.
• Court: North Dakota Supreme Court

21 N.D. 161

129 N.W. 97

STATE

v.WINBAUER.

Supreme Court of North Dakota.

Dec. 21, 1910.

Syllabus by the Court.

A preliminary examination before a committing magistrate, or a waiver thereof, is necessary before the filing of an information in the district court on the charge of committing an offense against the criminal laws of the state, unless such offense is charged to have been committed during the continuance of a term of such court, barring the exceptional cases enumerated in section 9791, Rev. Codes 1905.

On the arraignment of a person charged by information only with having committed a criminal offense when a term of the district court was not in continuance, and not included in the exceptions referred to, the proper procedure is by motion to set aside the information.

January 12, 1910, the defendant waived a preliminary examination before a magistrate on a complaint charging him with keeping and maintaining a common nuisance in violation of the prohibition law, at divers and sundry times since the 1st day of July, 1909, in certain described premises, and was held to the district court on such charge. May 5, 1910, an information was filed in district court during a term which commenced May 3, 1910, charging the same person with keeping and maintaining a common nuisance in the same premises described in the complaint, on the 1st day of July, 1909, and from thence continually to and including the 2d day of May, 1910. Held, that the complaint and the information charged two distinct offenses, and that the 2d day of May, 1910, not having been during the continuance of a term of the district court, the information should have been set aside on motion made, on the ground that the defendant had neither had nor waived a preliminary examination as to the offense charged in the information.

Appeal from District Court, Morton County; Crawford, Judge.

Joseph Winbauer was convicted of maintaining a common nuisance in violation of the prohibition law, and he appeals. Reversed and remanded.Shaw & Nuchols, for appellant. J. M. Hanley, State's Atty., Andrew Miller, Atty. Gen., and Alfred Zuger, Asst. Atty. Gen., for the State.

SPALDING, J.

This is an appeal from a judgment of conviction of the defendant at the May, 1910, term of the district court of Morton county of the offense of keeping and maintaining a public nuisance, contrary to the provisions of the so-called prohibitory law.

Neither the evidence nor the instructions of the court are before us. The motion to set aside the information disposes of the appeal. The motion was based upon the ground that the defendant had not had any preliminary examination before a magistrate as to any public offense charged in the information as having been committed since and subsequent to the 11th day of January, 1910, and had not waived such examination, and had never been held to answer before the district court for any offense alleged to have been committed by him since the 11th day of January, 1910. The motion was denied and proper exception taken. A verdict of guilty was returned on the 7th day of May, 1910, and on the 14th day of May the defendant was sentenced.

The history of the prosecution, as far as necessary to be here noted, is as follows: On the 12th day of January, 1910, the defendant was held to answer the charge of keeping and maintaining a common nuisance in certain premises in the city of Mandan, Morton county, N. D.; the premises being duly described. The complaint on which he was so held charged the commission of the offense at divers and sundry times since the 1st day of July, 1909. On the 5th day of May, 1910, being a day of a regular term of the district court of Morton county, the state's attorney filed an information charging the defendant with maintaining a common nuisance, in the same premises described in the complaint on the 1st day of July, 1909, and from thence continually to and including the 2d day of May, 1910, without any preliminary examination having been had as to the period between January 12, 1910, and May 2, 1910, inclusive. May 2d was not a day during the continuance of a term of the district court in Morton county; the court convened in regular term on the 3d day of May, 1910.

No constitutional provision is found in this state requiring a preliminary examination before filing an information in criminal proceedings, but section 9791, Rev. Codes 1905, provides as follows: “During each term of the district court held in and for any county or judicial subdivision in this state at which a grand jury has not been summoned and impaneled, the state's attorney of the county or judicial subdivision, or other person appointed by the court as provided by law to prosecute a criminal action, shall file an information, or informations, as the circumstances may require, respectively, against the persons accused of having committed a criminal or public offense within such county or judicial subdivision, or triable therein: (1) When such person or persons have had a preliminary examination before a magistrate for such crime or public offense, and, from the evidence taken thereat, the magistrate has ordered that such person or persons be held to answer to the offense charged or some other crime or public offense disclosed by the evidence. (2) When the crime or public offense is committed during the continuance of a term of the district court in and for the county or judicial subdivision in which the offense is committed or triable.” The remainder of the section is not applicable to the case at bar.

Prior to 1895, a preliminary examination was necessary in all cases. Hence former decisions of this court, based upon the right of a party to a preliminary examination before the filing of an information in the district court, are not in point. The appellant contends that the state, by filing...