State v. Ziesemer, Cr. N

• Decision Date: 29 December 1958
• Docket Number: Cr. N
• Citation: 93 N.W.2d 803
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Royal E. ZIESEMER, Defendant and Petitioner. o. 289.
• Court: North Dakota Supreme Court

Page 803

93 N.W.2d 803

STATE of North Dakota, Plaintiff and Respondent, v. Royal E. ZIESEMER, Defendant and Petitioner.

Cr. No. 289.

Supreme Court of North Dakota.

Dec. 29, 1958.

Syllabus by the Court.

I. Article VI of the amendments to the Constitution of the United States applies to criminal proceedings in federal courts. It has no application to prosecutions in state courts.

2. If a new statute provides a milder punishment than was before imposed for the same offense it will be presumed that the legislature intended to repeal so much of the old law as concerns the punishment but where the new act contains a provision that it shall not be construed to nullify or supersede the old law penalties imposed in prosecutions under the old law are not affected.

3. Where a sentence has been imposed in excess of that provided by statute the sentence is lawful to the extent of the statutory maximum and a person in custody under such a sentence cannot be discharged on habeas corpus until the expiration of the time for which he could have been lawfully sentenced.

Leslie R. Burgum, Atty. Gen., and Dale H. Jensen, Asst. Atty. Gen., Bismarck, for respondent.

William E. Heller, Bismarck, for petitioner.

MORRIS, Judge.

Royal E. Ziesemer petitioned this court for a writ of habeas corpus. A writ was issued directing that the petitioner he brought before this court on November 12, 1958 at ten o'clock a. m., at which time a hearing was held. The record shows that he was arrested on August 19, 1957 on a warrant issued pursuant to a complaint charging him with the commission of the crime of obtaining money by false pretenses on June 24, 1957. He waived preliminary hearing and was bound over to the District Court of McHenry County. On August 23, 1957 the state's attorney of McHenry County filed in the district court of that county a Criminal Information charging that the petitioner on June 24, 1957 committed the crime of obtaining money under false pretenses and that he:

'did then and there on 24th day of June, 1957, willfully, unlawfully and feloniously, with intent to defraud or cheat Ethel Dobler, by color or aid of a false token or writing, to-wit: pass a check to complainant herein, under date of June 24, 1957, which check was drawn on the First National Bank in Drake, N. D. which was in the amount of $10.00 and when the same was presented for payment, it was returned and marked 'NSF', all to obtain money from the said Ethel Dobler.'

The petitioner was on the same day arraigned before Honorable Asmundur Benson, judge of the district court, and signified his intention to plead guilty. A copy of the Information was handed to the petitioner and the Information was read aloud in open court by the state's attorney. In response to questions by the court he stated that he was twenty-eight years of age, had lived in North Dakota about three years at Minot and Anamoose, that Ethel Dobler operated a business establishment in Anamoose, that the petitioner gave her a check for ten dollars drawn on the First National Bank of Drake in which he had an account but did not have sufficient funds therein to pay the check. He admitted he had been arrested before for passing checks without sufficient funds and also for grand larceny of some mink hides which he stole at Freeborn, Minnesota, for which he served a sentence at the Reformatory at St. Cloud, Minnesota. The court advised the petitioner that he was entitled to be represented by an attorney and that if he was not able to provide an attorney himself the court would appoint one for him. He declined the services of an attorney. A lengthy colloquy then followed between the court and the petitioner regarding other checks the petitioner had written without funds in the banks to meet them. The court asked him if he was ready to enter his plea. After an affirmative answer the court asked him whether he pleaded guilty or not guilty to which the petitioner replied, 'Guilty.' After some further discussion regarding restitution the court sentenced the petitioner to confinement in the state penitentiary for a period of from one to five years. The petitioner now seeks his release from confinement pursuant to that sentence.

The petitioner challenges the jurisdiction of the trial court and the validity of his sentence on a number of grounds. He complains that he was not properly advised by the court of his constitutional rights at the time of pleading guilty including the right to counsel. These contentions are wholly unsubstantiated and without sufficient merit to warrant discussion.

The petitioner complains that he:

'was not informed of the nature and cause of the accusation as guaranteed him by Article VI of the amendments to the constitution of the U. S.'

This article guarantees a speedy trial to those being prosecuted in federal courts. It has no application to prosecutions in state courts. 14 Am.Jur., Criminal Law, Sec. 134; 22 C.J.S. Criminal Law Sec. 467b. This being a prosecution in a state court the article has no application here.

The petitioner's next contention is that his sentence was imposed under Section 12-3804, NDRC 1943 and Section 12-3807, 1957 Supplement to NDRC and that Chapter 99, Session Laws N.D.1957 (Section 6-0816, 1957 Supplement to NDRC) is in conflict with and supersedes the two sections first mentioned with respect to the use of checks for obtaining money under false pretenses. It is argued that since Chapter 99, Session Laws N.D.1957 makes the issuance of a check on a bank without sufficient funds therein a misdemeanor and being a later act, a felony prosecution under Sections 12-3804 and 12-3807 as amended will not lie against the defendant and that therefore the court exceeded its jurisdiction in sentencing him for a felony.

The petitioner argues for the application of what appears to be the general rule that if a new statute provides...