State v. Woods

• Citation: 139 N.W. 321,24 N.D. 156
• Parties: STATE v. WOODS.
• Decision Date: 11 December 1912
• Court: United States State Supreme Court of North Dakota

24 N.D. 156

139 N.W. 321

STATE

v.WOODS.

Supreme Court of North Dakota.

Dec. 11, 1912.

Syllabus by the Court.

In the light of the provisions of section 8 of the Constitution, permitting the Legislature to change, regulate, or abolish the grand jury system, and of section 9796, R. C. 1905, permitting amendment of a criminal information, and of section 9930, R. C. 1905, requiring the state's attorney or other prosecutor to follow a criminal trial into the county to which it is removed, and giving the court full jurisdiction and authority to hear, try, and determine the action and to conduct it in all respects as if it had been commenced in such county, it is held that in a prosecution by information it is competent for the state, on leave of court, to amend an information in the county to which the trial is removed, at least when there is no new or different offense charged.

Following State v. Peltier, 21 N. D. 190, 129 N. W. 451, it is held that, when error is assigned on instructions to the jury in a case in which the evidence is not before the Supreme Court, an instruction will not be held erroneous unless it is so under every possible view of the case, and that it will be presumed to be correct as applied to the evidence, unless abstractly wrong.

Certain instruction, identical in effect with one passed upon in State v. Hazlet, 16 N. D. 426, 113 N. W. 374, sustained.

The appellant was charged by information with having committed the crime of murder. The court instructed the jury on the degrees of murder and of manslaughter. The jury found him guilty of manslaughter in the first degree. Held that, where the evidence is not before this court, it will be presumed that the instructions conformed to such evidence, and consequently that the status of the proof was such as to show that defendant was guilty of one of the degrees of murder or of manslaughter, or not guilty; and it was not error, therefore, to omit to instruct as to the lesser offenses included within such greater offenses.

The record discloses no request for instructions on the lesser offenses. While many authorities hold that failure to instruct on a given point when not requested so to do is not reversible error, that question is not passed upon.

Additional Syllabus by Editorial Staff.

The word “concurrent” has various meanings; and, while prosecutions by indictment and information are concurrent remedies in the sense that they are of equal dignity and may apply to the same object or offense, they are not concurrent in the sense that procedure by indictment or by information may be adopted at the same time.

Appeal from District Court, Adams County; Nuchols, Judge.

Denver Woods was convicted of manslaughter in the first degree, and appeals. Affirmed.

T. R. Mockler, of Bismark, for appellant. Andrew Miller, Atty. Gen., C. L. Young, Asst. Atty. Gen., and E. P. Totten, State's Atty., of Bowman, for the State.

SPALDING, C. J.

The appellant was convicted by a jury of Adams county, N. D. on the 22d day of April, 1911, of the crime of manslaughter in the first degree, and his punishment fixed at 13 years in the state penitentiary, and judgment was pronounced accordingly on the 22d day of April, 1911. He appeals from the judgment, and none of the evidence is before this court.

[1] 1. The first four assignments of error, as stated in appellant's brief, all complain of the trial court permitting the state, after a change of venue had been taken from Bowman county to Adams county, to file an amended information. This objection was raised, first, by objection; second, by motion to set aside the amended information; third, by demurrer; fourth, by a motion in arrest of judgment; and, fifth, by objection when the court overruled appellant's motion in arrest of judgment. The contention, broadly stated, is that after a change of venue on the application of the defendant in a criminal action, granted by reason of prejudice existing in the county wherein the offense is charged to have committed, the state cannot, before trial and in the county to which the venue has been changed, file on leave of court an amended information. In this case such leave was granted, the amended information filed, and the defendant arraigned thereunder and required to plead thereto, and was tried and convicted on such amended information. We may remark in passing that the amended information charged the same offense that was charged, or attempted to be charged, in the original information, viz., murder. It is urged that the duties of the state's attorney of Bowman county can only be exercised within that county; that an official act performed in Adams county by him after a change of venue on the application of the defendant, such as preparing and filing an amended information, is outside his jurisdiction, illegal, and of no effect.

Counsel concedes that he has been able to find but one case which is an authority upon the subject. It is State v. Bartlett, 170 Mo. 658, 71 S. W. 148, 59 L. R. A. 761. The Constitution of Missouri, adopted in 1900, provides that “no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information which shall be concurrent remedies.” And it is held in the above-entitled case that, after change of venue, the prosecuting attorney cannot file, in the county to which the venue is changed, an amended information. That decision rests upon the provision of the Constitution that indictment and information “shall be concurrent remedies,” and the court holds that, inasmuch as an indictment could not be found for a crime committed outside the county in which the grand jury sits, an information cannot be filed outside the county of the prosecuting attorney, and therefore that it cannot be amended by such attorney in the county to which the venue is changed; that the fact that the statute commands a prosecuting attorney to follow to other counties indictments and informations originating in his county does not enlarge his powers as to amending an information any more than it does to amending an indictment. We think this decision is not an authority in this state. Our constitutional provision differs widely from that of Missouri. It does not provide that indictment and information shall be concurrent remedies, but leaves it wholly within the power of the legislative assembly to completely abolish proceeding by indictment. Section 8 reads: “Until otherwise provided by law no person shall, for a felony, be proceeded against criminally otherwise than by indictment. * * * Offenses shall be prosecuted by indictment or information. The legislative assembly may change, regulate or abolish the grand jury system.” Under the provisions of our Criminal Code felonies are prosecuted on information, exceptwhen a grand jury may be summoned in the manner, and by the officials or persons designated. Section 9796 provides for the amendment of an information. Section 9930 provides that, when the place of trial has been changed, the state's attorney of the county or judicial subdivision, or other person appointed to prosecute, where the action was commenced, shall prosecute the case for the state, and the court to which the action is removed for trial shall have full jurisdiction and authority to hear, try, and determine the action, and upon conviction to impose the punishment prescribed by law, and that the trial shall be conducted in all respects as if the action had been commenced in the county to which it is removed. It seems reasonably clear that full jurisdiction and authority to hear, try, and determine the action, to impose punishment, and to conduct the trial in all respects as if the action had been commenced in said court must include all the necessary steps leading to and including the trial after the venue has been changed. The reasons for not permitting an indictment to be filed in the county to which the venue is changed do not necessarily apply to the amendment of an information. The grand jury is a body of men summoned from and having jurisdiction only in its own county. It meets, transacts its business, and is discharged. It is not at all times in attendance upon the court. It does not follow the case out of the county. Its functions cease when it is discharged, and this is usually long before the end of the term for which it was called. But the prosecuting attorney is commanded by the statute to follow the case into the new county and there prosecute it, and there is no physicial or other barrier in the way of his amending the information, on leave of court, as there is to the amendment of an indictment. 1 Bishop, New Criminal Procedure, § 714.

[6] The word “concurrent” has various meanings. It is true prosecution by indictment and information in this state are concurrent remedies in the sense that they are of equal dignity, of equal importance, and that under certain circumstances they apply to the same object or offense, but they are not concurrent in the sense that procedure by indictment or by information may be adopted on any offense at any time. The grand jury is not called on every occasion when felonies are to be prosecuted. The state's attorney is not charged with any duty respecting the calling of a grand jury. Whether there shall be a grand jury in his county at any term of court in no manner depends upon him officially under the statute. Hence, if the officials or persons empowered by the statute to call a grand jury do not act, no method of procedure except by information is left the state's attorney. These remedies in this state are concurrent in the sense that they bear on the same objects or offenses, but are not concurrent in the sense that they exist at the same time or on the same occasion.

It appears that section 4860, Ballinger's (Wash.) Code, provides that the court to which an action or proceeding is transferred has and exercises over the same a like jurisdiction as if it had been originally...