State v. Wisnewski
| Decision Date | 01 March 1905 |
| Citation | 102 N.W. 883,13 N.D. 649 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh county; Kneeshaw, J.
Lawrence Wisnewski was convicted of keeping a nuisance, and appeals.
Judgment modified, and, as modified, affirmed.
Affirmed.
DePuy & DePuy, for appellant.
The place in which a common nuisance is maintained is of the substance of the charge and must be correctly described, or the complaint affords no basis for a preliminary examination. And an information for an offense for which accused has had no preliminary examination confers no jurisdiction upon the district court. White v. State, 44 N.W. 443; State v. Barnes, 3 N.D. 131, 54 N.W. 541; People v Howland, 44 P. 342; 14 Cent. Dig., c. 643.
There must be some connection between the offense charged in the preliminary complaint and that charged in the information other than similarity as to character, unless that other offense is disclosed on the examination. Brown v State, 64 N.W. 749; People v. Russell, 67 N.W 1099; State v. Boutler, 39 P. 883; People v. Whitney, 63 N.W. 765; State v. Barnes, 3 N.D. 131, 54 N.W. 541; People v. Parker, 27 P. 537; People v. Wallace, 29 P. 950; People v. Oscar, 63 N.W. 971; People v. Vierra, 7 P. 640; State v. Jarrett, 27 P. 146; People v. Jones, 24 Mich. 215; People v. Becktel, 45 N.W. 582; People v. Handley, 52 N.W. 1032; State v. Emberton, 45 Mo.App. 56; City of Galt v. Elder, 47 Mo.App. 164; Hanson v. State, 61 S.W. 120.
The sentence and judgment for a period in excess of six months, as limited by section 7610, are void, at least as to the excessive part. There is a controversy as to whether such a sentence is void in toto or only as to excess. See In re Taylor, 64 N.W. 253; 15 Cent. Dig., cc. 319, 1102.
The defendant was convicted of keeping and maintaining a common nuisance, in violation of the provisions of section 7605, Rev. Codes 1899, and appeals from the judgment of conviction.
The first assignment of error is upon the refusal of the district court to set aside the information upon motion made for that purpose before the defendant pleaded to the same. Such motion was based upon the following facts: The defendant was arrested upon a warrant in justice's court, based upon a complaint alleging that the defendant did on and between certain days keep and maintain a common nuisance in the village of Warsaw, Walsh county, North Dakota, "in a certain one-story frame building." Upon being arrested and brought before the justice, he moved to dismiss the complaint upon the ground that the description of the place where the nuisance was alleged to have been maintained was too indefinite to apprise him of the character of the charge against him, and that such complaint was insufficient as a basis of preliminary examination. In support of the motion he filed his affidavit stating that there were more than six "one-story frame buildings in the village of Warsaw." The motion was denied. Thereafter he waived examination, and the justice held him to answer in the district court to the charge of keeping and maintaining a common nuisance. Upon giving an undertaking for such appearance, he was released from custody. In the district court he made a motion to set aside the information upon the same grounds. The information specifically alleged that the nuisance was maintained in a place kept on "lot 1 of block 1 * * * of the village of Warsaw." The information in other respects set forth the same facts in relation to the offense charged as did the complaint in justice court. The motion was denied, and a trial followed, resulting in a conviction. It is now urged that the conviction was a nullity, for the reason that the complaint did not specifically allege the place where the nuisance was maintained, and that he was denied a preliminary examination for the offense charged in the information. Section 8348, Rev. Codes 1899, relating to judgments in the Supreme Court, provides that "after hearing the appeal the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties." Section 8082, Rev. Codes 1899, provides that an information must be set aside by the district court upon motion when the defendant has not had a preliminary examination when entitled thereto, or has not waived such examination. Section 7982, Rev. Codes 1899, provides that the state's attorney shall file an information against persons accused of crime "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 said person or persons be held to answer to the offense charged or some other crime or public offense disclosed by the evidence," and "when a person accused of a crime or public offense is arrested and waived, in writing, or if before a magistrate, orally, a preliminary examination therefor." Section 7886, Rev. Codes 1899, provides that a complaint must state "the general name of the crime or public offense," and, "if the offense is against the property of any person, a general description of such property." The defendant had a right to a preliminary examination before an information could properly be filed against him by the state's attorney in the district court. The law governing the procedure in preliminary examinations before the committing magistrate, as shown by the sections quoted, does not contemplate that the defendant shall be protected with safeguards to the same extent as on trials. A preliminary examination is not a trial, but the commencement of criminal prosecution. 16 Enc. of Pl. & Pr. 821, and cases cited. The object of the examination is to secure the appearance of the defendant before the district court for further investigation. If a grand jury presents an indictment, or if the state's attorney, on investigation of the evidence bearing on the case, files an information, a trial may follow. The same strictness is not required on a preliminary examination in matters of pleading as is required in framing and construing informations or indictments. The purpose of an examination is accomplished when the defendant appears in the district court. In this case the proceedings before the justice were not void. The justice had jurisdiction of the person and of the offense. The allegations of the complaint would not be sufficient to charge the keeping of a nuisance in an information where an abatement of the nuisance was sought. Where an abatement is sought, the place must be particularly described in the information; but such particularity is not required in a simple criminal prosecution. State v. Thoemke, 11 N.D. 386, 92 N.W. 480, and cases cited; section 7614, Rev. Codes 1899.
We are unable to agree with the defendant that he was not accorded a preliminary examination for the offense of keeping and maintaining a nuisance. No evidence was taken, but this was due to the fact that he waived an examination. Having waived an examination, the justice properly held him for appearance in the district court, and the district court thereby acquired jurisdiction. We fail to see that the substantial rights of the defendant were violated. The complaint should be liberally construed. The state's attorney had the right to file an information for the offense attempted to be charged in justice court, although not described with technical accuracy. Section 7983, Rev. Codes 1899; State v. Rozum, 8 N.D. 548, 80 N.W. 477; State v Fordham, 13 N.D. 494; 101 N.W. 888. In State v. Bailey, 32 Kan. 83, 3 P. 769, it was said: We conclude that the complaint in this case was sufficient under the statute and the principles laid down in the case cited. See, also, People v. Velarde, 59 Cal. 457; People v. Wheeler, 73 Cal. 252, 14 P. 796; ...
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